Check v. Meredith, 5--4374
| Decision Date | 20 November 1967 |
| Docket Number | No. 5--4374,5--4374 |
| Citation | 420 S.W.2d 866,243 Ark. 498 |
| Parties | George CHECK, Appellant, v. Joyce MEREDITH et al., Appellees. |
| Court | Arkansas Supreme Court |
House, Holmes & Jewell, Little Rock, for appellant.
Cockrill, Laser, McGehee, Sharp & Boswell, Little Rock, for appellees.
Two of the appellees, Joyce and Robert Meredith, were injured in a traffic accident involving their mother's car, in which they were riding, and a car being driven by the appellant. This action for personal injuries and property damage was brought by Joyce, by Mrs. Meredith as the next friend of Robert, a minor, and by Mrs. Meredith in her own right. The jury returned verdicts of $6,000 for Joyce, $3,500 for Robert, and $1,500 for Mrs. Meredith. For reversal the appellant questions the court's instructions to the jury and the amount of the awards.
We think the court erred in instructing the jury that Joyce was entitled to recover the present value of any earnings reasonably certain to be lost in the future. AMI 2201 and 2206. At the time of the accident Joyce was working in Little Rock at a salary of $200 a month. Her injuries disabled her for several months. At the time of the trial, almost two years after the collision, she was employed at a salary of $250 a month, with guaranteed raises in amounts not shown by the testimony.
The trouble is that although there is proof that Joyce may have suffered a loss of earning capacity, AMI 2207, there is no evidence to assist the jury in fixing the amount, in dollars and cents, of earnings reasonably certain to be lost in the future. Dr. Murphy estimated that Joyce's cervical spinal injuries had resulted in a permanent disability of 5 percent to the body as a whole. Joyce had been back at work for more than a year before the trial. She testified that she experienced difficulty in working, in that 'about the middle of the day my neck will start hurting, and I'll have to stop my work and rest for a period of time in order that it would stop hurting, and I can go back to work.' Her statement that her employer understood her condition doubtless implied that he was willing to make allowances for her inability to work steadily all day.
Where there is proof that the plaintiff, at the time of the trial, is still unable to work or is unable to earn as much as he did before he was injured, an instruction upon the loss of future earnings is proper. Holland v. Ratliff, 238 Ark. 819, 384 S.W.2d 950 (1964); Abraham v. Jones, 228 Ark. 717, 310 S.W.2d 488 (1958). Here that essential proof is absent. There is no indication that Joyce missed even a day's work for some fourteen months immediately preceding the trial. No witness testified that it was either probable or possible that she would be unable to continue working regularly. Hence the jury had no basis, except pure guesswork, for estimating earnings reasonably certain to be lost in the future. The judgment in favor of Joyce must be reversed.
We find no error in the court's refusal to give AMI 2214 in its entirety. That instruction would have told the jury...
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