Henne v. Balick

• Decision Date: 25 November 1958
• Citation: 1 Storey 369,51 Del. 369,146 A.2d 394
• Parties: , 51 Del. 369 Donald HENNE et al., Defendants, Appellants, v. Sidney BALICK, Plaintiff, Appellee.
• Court: United States State Supreme Court of Delaware

Page 394

146 A.2d 394

1 Storey 369, 51 Del. 369

Donald HENNE et al., Defendants, Appellants, v. Sidney BALICK, Plaintiff, Appellee.

Supreme Court of Delaware.

Nov. 25, 1958.

William Prickett, Jr. and William Prickett, Sr., Wilmington, for appellants.

John M. Bader, of Balick & Bader, Wilmington, for appellee.

SOUTHERLAND, C. J., and WOLCOTT and BRAMHALL, JJ., sitting.

BRAMHALL, Justice.

This appeal relates to an action for personal injuries in which plaintiff's counsel in his closing argument to the jury was permitted (1) to present plaintiff's claim for loss of earnings on a per diem basis without specific evidence to support it; and (2) to present, along with a blackboard demonstration thereof, plaintiff's claim for damages for pain and suffering on a per diem basis.

Plaintiff was injured in an automobile accident on November 25, 1955. At the trial it was shown that plaintiff sustained an injury to his back, a disfigurement, an impairment of the sense of smell and severe headaches. Substantial evidence was offered to the effect that all of these injuries were of a permanent nature. Plaintiff's counsel in his closing argument, in discussing the question of plaintiff's damages, used a blackboard demonstration to the jury, in which plaintiff's damages were set forth as follows:

                '38 years
                Hospital and Medical                                   613.54
                Loss of earnings                                       225.00
                Pain and suffering                                   2,500.00
                First 10 days
                Next 6 months at $25 per day                         4,500.00
                Loss of earning capacity 38 years at $10 per week  19,000.00'
                

Defendants objected to the item for loss of future earnings on the ground that there was no evidence in the record from which the jury might have fixed a value for future earnings. Defendants also objected to the use on the blackboard and in the closing argument of plaintiff's counsel of the items set forth in the blackboard demonstration relating to pain and suffering, contending that it was improper to permit counsel for plaintiff to suggest to the jury for its consideration a specific sum per diem as damages for pain and suffering. The Court overruled defendants' objection as to both, instructing the jury that the above items were proper for their consideration. The jury brought in a verdict for plaintiff in the sum of $14,000. Defendants appeal.

We consider first the question of whether or not the Court erred in charging the jury that they could award damages for loss of future earnings.

As we understand defendants' objection, it is twofold: first, there was no evidence in the record relating to plaintiff's loss of earnings from which the jury might determine the amount of plaintiff's loss, and, secondly, assuming the existence of such evidence, it was necessarily so indefinite, so uncertain and so conjectural as to make the use by plaintiff's counsel on the blackboard and in his closing argument to the jury of a specific claim for loss of earnings highly improper.

Plaintiff says that defendants's argument assumes that the law requires direct and specific testimony that plaintiff was earning, or was capable of earning, a specific sum of money in a specified employment. Plaintiff further contends that in view of the substantial evidence offered by plaintiff as to permanent injuries, the effect of these injuries upon plaintiff's future earning capacity was a matter entirely for the jury to determine.

At the time of the accident plaintiff was a law student. His health was good. At the time of the trial he was a practicing lawyer in this State. Substantial evidence was offered showing that the injuries of which plaintiff complained were permanent in nature. The record fails to establish the earning capacity of plaintiff either before or after the accident.

The law does not permit a recovery of damages which is merely speculative or conjectural. Scotton v. Wright, 2 W.W.Harr. 192, 121 A. 180. As a general rule, it refuses to allow a plaintiff damages relating to the future consequences of a tortious injury unless the proofs establish with reasonable probability the nature and extent of those consequences. Budden v. Goldstein, 43 N.J.Super. 340, 347, 128 A.2d 730. See Restatement of the Law of Torts, § 912, Comment (e). There must be some reasonable basis upon which a jury may estimate with a fair degree of certainty the probable loss which plaintiff will sustain in order to enable it to make an intelligent determination of the extent of this loss. Brown v. Sutowski, 117 Vt. 377, 91 A.2d 556. The burden is upon the plaintiff to furnish such proof. If he fails in this respect, the jury cannot supply the omission by speculation or conjecture. Scotton v. Wright, supra; Seals Piano & Organ Co. v. Bell, 17 Ala.App. 331, 84 So. 779. The fact that there is some uncertainty as to plaintiff's damage or the fact that the damage is very difficult to measure will not preclude a jury from determining its value. Ball v. T. J. Pardy Const. Co., 108 Conn. 549, 143 A. 855, 63 A.L.R. 139. But this does not mean that there need be no proof at all as to plaintiff's earning capacity. Plaintiff must at least offer some evidence of loss of earnings in the future as a result of his permanent injury and, if possible, the nature and extent of his loss. Budden v. Goldstein, supra.

We do not agree with the contention of plaintiff that the mere showing of permanent injuries, such as plaintiff sustained in this case, is, of itself, under the circumstances of this case, sufficient evidence of the extent of the impairment of plaintiff's future earning capacity. To support a finding of a specific sum as damages there should generally be other evidence than that which merely shows the nature of plaintiff's injuries and his vocation. McAlister v. Miller, Tex.Civ.App., 173 S.W.2d 339. Viewing the record in the light most favorable to plaintiff, we feel that plaintiff has failed to produce any evidence showing his future loss of earnings, or any other evidence from which such a finding by a jury would naturally flow. While, of course, the amount of plaintiff's loss as to future earnings could not have been fixed with the same degree of certainty as was possible in the case of past earnings, nevertheless, some tangible evidence relating to the extent of plaintiff's loss of future earnings should and probably could have been produced.

Plaintiff relies upon the case of Connolly v. Pre-Mixed Concrete Co., 49 Cal.2d 483, 319 P.2d 343, 346, in which the Supreme Court of California said:

'* * * loss of earning power is an element...