Fields v. Fields

• Citation: 326 P.2d 451,213 Or. 522
• Parties: Leonard FIELDS, Plaintiff-Respondent, v. Tracy L. FIELDS, Defendant-Appellant.
• Decision Date: 04 June 1958
• Court: Supreme Court of Oregon

Page 451

326 P.2d 451

213 Or. 522

Leonard FIELDS, Plaintiff-Respondent, v. Tracy L. FIELDS, Defendant-Appellant.

Supreme Court of Oregon.

Argued and Submitted Oct. 28, 1957.

Decided June 4, 1958.

Wm. C. Ralston and W. K. Phillips, Portland, argued the cause for appellant. On the brief were Phillips & Sandeberg and Wm. C. Ralston, Portland.

Edgar M. Dick, The Dalles, argued the cause for respondent. On the brief were Dick & Dick, The Dalles.

Before PERRY, C. J., and ROSSMAN, BRAND, WARNER, McALLISTER and KESTER, ^* JJ.

McALLISTER, Justice.

The plaintiff, Leonard Fields, brought this action against his father, Tracy L Fields, to recover damages for personal injuries sustained while working on his father's ranch. The jury returned a verdict for plaintiff and from the judgment based thereon, defendant appeals.

The defendant contends that the court erred in allowing recovery of loss of earnings as special damages, in denying defendant's motion for directed verdict and in instructing the jury that a failure of the defendant to comply with certain provisions of the basic safety code would constitute negligence per se.

The accident occurred on December 31, 1953, on defendant's wheat ranch in Sherman county. Leonard, a mature young man with a family of his own, also owned a wheat ranch in the same neighborhood. Leonard occasionally worked on his father's ranch and at the time of his injury was engaged in spraying wheat. The spraying was done with a mobile Hardy spray rig owned by the father and pulled by a tractor owned by Leonard.

Originally the pump of the spray rig had been powered by a motor installed in the rig as a component part thereof. A year or so prior to the accident the defendant had purchased and installed on the sprayer a device known as a 'power takeoff' so that the sprayer could be operated by power transmitted from the tractor pulling the rig. The power was transmitted by a drive shaft extending from the rear of the tractor to the front of the spray rig and connected to each machine by a universal joint.

The drive shaft of the spray rig extended a short distance from the front end of the rig and a universal joint was attached to the end of this shaft and kept in place by a set screw or bolt. This bolt was not flush with the shaft but stuck out an inch or two and caused plaintiff's injury.

Plaintiff had been spraying on his father's ranch with this equipment for a day or two before his injury. Because of the cold weather, it was necessary to open numerous valves and completely drain the spray rig each night. Plaintiff was injured early in the morning as he and a ranch hand employed by defendant were getting the equipment ready to start the day's work. It was necessary to close the valves on the spray rig, pour about five gallons of water or spray material into the machine and arrange the hoses on the spray boom. Leonard started the motor of the tractor and believing that the valves were all closed, engaged the power takeoff which started the pump on the spray rig. As he stepped out of the tractor and back toward the spray rig, Leonard saw water squirting from a valve situated on the front of the spray rig very close to the drive shaft extending from the front of the machine. He stepped onto the rig and reached over the drive shaft to close the valve. The bolt projecting from the revolving drive shaft caught the sleeve of his jacket, flipped him over on his back, broke and severely mangled his arm. The drive shaft snapped in two thus probably saving him fron further injury.

By his second amended complaint plaintiff sought recovery upon the dual theory that his employer had been guilty of common law negligence and violation of certain duties imposed by statute. To bring his case within the scope of the Employer's Liability Act, plaintiff alleged that the work involved risk or danger, and that the defendant was negligent in permitting the bolt to project from the shaft, in failing to guard the shaft and universal joint and in failing to use every device, care and precaution practicable to use for the safety of life and limb. ORS 654.305. ¹ Plaintiff further alleged that defendant had failed to comply with certain provisions of the basic safety code adopted by the State Industrial Accident Commission pursuant to ORS 654.005 to 654.100, which required that all projecting set screws in revolving parts be removed or made flush and that all mechanical power transmission apparatus be guarded.

Defendant denied the charges of negligence and charged plaintiff with contributory negligence in failing to guard the universal joint himself, in attempting to turn off the valve without first shutting off the power, in attempting to shut off the value by reaching over the revolving drive shaft and in other particulars.

In his complaint plaintiff alleged that he had been required to hire extra help to perform work on his ranch which he ordinarily would have done himself, to plaintiff's special damage in the sum of $5,115. The jury awarded general damages in the sum of $30,000, special damages for hospital and medical expenses in the sum of $3,112.47 and special damages for loss of earnings in the amount demanded of $5,115. Defendant objected to the evidence and instructions with regard to loss of earnings on the grounds that such loss was 'not a proper element of damages' and that 'there is no showing they were reasonable charges for the service rendered.' Neither objection is well taken.

As pointed out in Shaw v. Pacific Supply Co-op., 166 Or. 508, 113 P.2d 627, there is a well defined difference between impaired earning capacity and loss of earnings. Impaired earning capacity is a direct and natural consequence of a disabling injury of a permanent or lasting nature, is an element of general damages and need not be specially pleaded. On the other hand, loss of earnings generally looks to the past, is an element of special damages, must be specially pleaded and ordinarily may be ascertained with reasonable certainty.

It would be improper to permit recovery for loss of earnings and for impaired earning capacity covering the same period of time. See Moe v. Alsop, 189 Or. 59, 216 P.2d 686. Loss of earnings ordinarily compensates for loss sustained during the period from the injury to the commencement or trial of the action. If recovery is sought for both loss of earnings and impaired earning capacity, then the latter should be assessed prospectively from the time of trial. See McCormick on Damages (Hornbook edition) § 86 et seq., p. 299.

In the case of a person who is self-employed in the operation of a small enterprise or farm, evidence of the cost to hire help to do work which normally would be done by the injured person himself is admissible to prove loss of earnings, provided the reasonableness and the necessity of the expenditure are shown. See Bascom v. Hoffman, 199 Iowa 941, 203 N.W. 273 and Sexton v. Lauman, 244 Iowa 570, 57 N.W.2d 200, 37 A.L.R.2d 353 and cases annotated in 37 A.L.R.2d 364.

In the case at bar plaintiff testified that because of his injuries he was required to expend $5,115 to hire work done on his ranch which he otherwise would have done himself and that the amount expended was 'the market value' of the labor hired. The evidence on this phase of the case was sufficient to support the verdict. We find no merit in this assignment of error.

Defendant also assigns as error the denial of his motion for a directed verdict. We deem it unnecessary to extend this opinion with a detailed discussion of the evidence. We have examined the record carefully and are satisfied that there was substantial competent evidence to support the verdict of the jury. This evidence tended to prove that Leonard was employed by his father, that the work involved risk or danger, that Leonard was...