Carradus v. Lange

• Decision Date: 17 January 1973
• Docket Number: No. 55143,55143
• Citation: 203 N.W.2d 565
• Court: Iowa Supreme Court
• Parties: Phillip E. CARRADUS and Nancy R. Carradus, Appellees, v. Curtis Kent LANGE and Jack Donald Lange, Appellants.

Page 565

203 N.W.2d 565

Phillip E. CARRADUS and Nancy R. Carradus, Appellees, v. Curtis Kent LANGE and Jack Donald Lange, Appellants.

No. 55143.

Supreme Court of Iowa.

Jan. 17, 1973.

David F. McGuire, Cedar Rapids, for appellants.

Francis J. Pruss, Cedar Rapids, for appellees.

Heard before MOORE, C.J., and MASON, RAWLINGS, REES and HARRIS, JJ.

RAWLINGS, Justice.

From judgment on jury verdict for plaintiffs in personal injury actions arising from motor vehicle collision the defendants appeal challenging damage award to one plaintiff alone. We reverse and remand for a limited new trial.

The instant accident occurred about 5:15 p.m., July 16, 1967, on primary Highway #20 at a point about 350 feet west of the westerly limits of Independence in Buchanan County.

Plaintiffs, Phillip E. Carradus and Nancy R. Carradus, were rear seat passengers in a Plymouth owned and driven by Gerald M. Connelly. Because of a turning vehicle ahead the Plymouth slowed and was struck from the rear by a Chevrolet owned by defendant Jack Donald Lange, operated by defendant Curtis Kent Lange. Plaintiffs were resultantly injured.

Plaintiffs brought individual actions for damages aainst defendants which culminated in a judgment for each plaintiff. Motion by defendants for a new trial was overruled.

On appeal only the damage award to Nancy R. Carradus is contested. She will therefore be here referred to as plaintiff and our review accordingly limited.

Errors asserted in support of a reversal are, trial court erred in (1) permitting plaintiff to testimonially state her pretrial total cumulative loss of earnings, (2) submitting jury instructions regarding plaintiff's 'permanent injury', disability, impairment of earning capacity and diminution of services as a wife and mother, (3) giving instructions to the jury as to future pain and suffering without any time limitation, (4) the submission of instructions regarding impairment of earning capacity and diminution of wife-mother services absent adequate proof, (5) overemphasizing the damage element by instructions given, and (6) overruling defendants' new trial motion.

These issues will not be considered in the order assigned.

I. First to be reviewed is the matter of damage evidence as it relates to plaintiff's accident related lost earnings.

In course of trial plaintiff's income tax returns for 1963 through 1969 were prefatorily admitted in evidence, and later taken to the jury room. Plaintiff also related her injury associated loss of time in remunerative employment and the manner by which her services as a wife and mother had been diminished. She also described in some detail the pain experienced by her prior to and at time of trial.

Finally, on direct examination, she was asked this question: 'Well, are you able to state exactly how much earnings loss you have had as a result of your injuries in this collision that occurred on July 16, 1967, Mrs. Carradus?'

Defendants then interposed the objection:

'* * * there is no proper foundation. This calls for an opinion and conclusion. It invades the province of the Court and jury, and calls upon the witness to speculate and conjecture and to pass judgment on her own damages. Incompetent, irrelevant, and immaterial.

'THE COURT: Overruled, You may answer. Do you recall the question?

'A. Up until this summer I would say around twenty-five hundred dollars.'

Noticeably, the questions quoted above called for nothing more than a yes or no answer. So the objection voiced was both inappropriate and premature. Furthermore, no motion was made to strike the response given as a voluntary statement. Thus the answer remained for consideration. Stated otherwise, error, if any, was waived. See Harrison v. Ulicki, 193 N.W.2d 533, 537 (Iowa 1972); Patton v. Town of Sanborn, 133 Iowa 650, 654, 110 N.W. 1032 (1907). See also 1 Wigmore on Evidence, § 18 at 344 (3d ed.); 3 Jones on Evidence, § 895 (4th ed.).

II. The general problem next to be resolved is whether trial court's jury instructions as to damages were prejudicially erroneous.

Initially defendants urge the evidence was not sufficiently definite to justify an instruction on impairment of earning capacity.

At the outset we find no merit in the position thus taken by defendants.

Dr. Robb, attending specialist in orthopedic surgery, testifying for plaintiff, stated she incurred an injury related sprain of the lumbar and cervical spine, described the activity restricting pain experienced by her together with his examination and treatments administered.

The doctor also testified:

'Based on reasonable medical certainty, as regards pain in the future, my opinion is that Mrs. Carradus will continue to have temporary symptoms of pain in both the neck and low back for a period of several months. I think ultimately both areas will heal and she will not have the continuation of these symptoms.'

'The pain which I made reference to which she will experience for some months in the future I think in my opinion it will eventually completely disappear.'

'When I examined her in December of 1970 she had very little restriction of movement of the head from one side to the other. Flexion forward and backward and extension was restricted very, very slightly. She had some soreness in the back of her neck.'

'I think Mrs. Carradus did have some organic damage to the bone or joint, but I don't feel that there is now. I think that's recovered.'

'Based on reasonable medical certainty the cause of the injury and cause of the condition which I found in Mrs. Carradus in my earlier examination and in the examination December, 1970, was the accident that she had incurred in July, 1967; this was the cause of the symptoms for which I had examined her in July of 1967 and subsequently re-examined her in December, 1970.'

Plaintiff's testimony discloses she secured employment in 1970 at Anamosa with Head Start. This six hour a day job required that she check on small children, take them to the doctor or dentist and deal with their parents. It paid $224 a month, plus ten cents a mile. Plaintiff further testified in part:

'I did not continue in that work because most of the work was driving a car and sitting at a desk. This was a problem because I would get severe headaches from driving and terrible backaches from sitting in the car for hours at a time.'

'I enjoy working. I hated to give this job up. It was at the hours when my one boy would be in school this winter. He wouldn't even know I was gone. My other boy could go to my mother's. I enjoyed working with people. I enjoyed the three months immensely. I had planned on taking a course at Kirkwood College to prepare for this job so I could get the experience and then later go into a better job, a permanent position. It just didn't work out. I had job offers to me and I have had a job offered to me since I quit then, full time.'

Dispositive of the loss of earning capacity issue is this statement in Anthes v Anthes, 258 Iowa 260, 269--270, 139 N.W.2d 201, 208 (1965):

'There is no fixed rule for the determination of damages for impairment of future earning ability. It cannot be fixed within any prescribed field of certainty and must, of necessity, be left to the sound discretion of the jury. 22 Am.Jur.2d, Damages, section 93, page 136.

'The right to damages for impairment of earning capacity may otherwise be classified as impairment of ability to work and earn. It is determinable by the difference between the value of an individual's services, if working, as he would have been but for the injury, and the value of the services of an injured person, if working, in the future. 22 Am.Jur.2d, Damages, section 92, page 134. It is based upon capacity to earn, not on earnings alone.

'A person may not have worked or may have had no income prior to trial, but still suffer impairment of future earning capacity. Shover v. Iowa Lutheran Hospital, supra (252 Iowa 706, 107 N.W.2d 85 (1961)), and 22 Am.Jur.2d, Damages, section 100, page 147.

'Impairment of physical capacity creates an inference of lessened earning ability in the future. Medical testimony is, of course, admissible in support of this element of damage but not always essential. The basic element to be determined in the matter of claimed impairment of future earning capacity is the reduction in value of the power to earn, not the difference in earnings received before and after the injury. 22 Am.Jur.2d, Damages, section 94, page 136.

'In considering impairment of earning capacity we are dealing with after injury decreased earning potentiality. This must be determined not alone by earnings before and after, nor by expenditures before and after injury. These are simply elements of proof to aid the jury, if at all, in determining impairment of ability to earn. Actually there may be an allowance of damages for impairment of earning capacity even in the absence of evidence of earnings lost or expenditures made for substitute labor.'

See also Andrews v. Struble, 178 N.W.2d 391, 403 (Iowa 1970); 22 Am.Jur.2d, Damages, §§ 313, 315--316; 25 C.J.S. Damages § 40; Annot., 18 A.L.R.3d 88.

With regard to diminution of plaintiff's services as a wife and mother, this court said in Schmitt v. Jenkins Truck Lines, Inc., 170 N.W.2d 632, 656--657 (Iowa 1969):

'In Henneman v. McCalla, supra (260 Iowa 60, 78, 148 N.W.2d 447, 458 (1967)), we approved this from Bridenstine v. Iowa City Elec. R. Co., 181 Iowa 1124, 1134, 165 N.W. 435, 439:

"The services of a competent wife or mother cannot be weighed in the scales of the money changer. And indeed it would seem almost frivolous to call witnesses to estimate their monetary value. The best that can be done is to prove the facts and circumstances of the woman's life and service in these capacities, her age, health and strength, her expectancy of life, and all that may appear to enlighten the minds and aid the judgment of the jorors, and leave them to assess such recovery within the statutory limit as th...