Kaler v. Webster

• Decision Date: 08 December 1975
• Citation: 348 A.2d 702
• Parties: Carlton J. KALER v. Daniel V. WEBSTER and Ronald Bean.
• Court: Maine Supreme Court

Page 702

348 A.2d 702

Carlton J. KALER v. Daniel V. WEBSTER and Ronald Bean.

Supreme Judicial Court of Maine.

Dec. 8, 1975.

T. A. Fitanides, Biddleford, for plaintiffs.

Platz & Thompson by J. Peter Thompson, Lewiston, Mahoney, Robinson, Mahoney & Norman by David C. Norman, Dana A. Cleaves, Portland, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.

POMEROY, Justice.

A charge to a jury permitting it to consider as an element of damages the future loss of earning capacity of a twenty-three year old college student occasions this appeal.

We deny the appeal.

Appellee was involved in a traffic accident in August of 1969. He was a passenger in a vehicle operated by appellant, Daniel Webster, at the time the vehicle collided with a truck driven by appellant, Ronald Bean. Appellee sustained an ankle injury in the crash, which injury resulted in a twenty-four percent permanent impairment of his left leg, (thirty percent impairment of the ankle).

Various claims and counterclaims were filed as a result of the accident but by the time of trial they had been consolidated into a single action-appellee against Webster and Bean jointly with those two parties crossclaiming against one another for contribution.

At the close of the evidence the presiding Justice instructed the jury that if they found that plaintiff was entitled to recover damages, they should consider as part of the damage award the extent to which the plaintiff's injury will affect his capacity to earn in the future.

The jury returned a verdict in favor of the plaintiff in the amount of $60,000, attributing sixty percent of the causal negligence to appellant Webster and forty percent to appellant Bean.

Appellants now assert that it was error to instruct that future loss of earning capacity was an appropriate element of damages in this case because, they say, there was no evidence that appellee's injury would impair his earning capacity in a career as a sociologist.

We do not agree.

In Goldstein v. Sklar, Me., 216 A.2d 298 at 309 (1966), we described the nature of the evidence required to establish future impairment of earning capacity:

'Direct and specific evidence of the extent of the impairment, measured in money, is not necessary; it is not essential to recovery of damages for permanent disability that there be in the evidence for purposes of comparison proof of income before and after the accident in support of diminution of earning power. . . .

'The assessment of damages for impairment of earning capacity rests largely upon the common knowledge of the jury or other fact-finder, sometimes with little aid from evidence; helpful evidence is admissible, although it does not furnish any mathematical valuation of the impairment.'

That damages for future loss of earning capacity may be recovered without direct or specific evidence and 'sometimes with little evidence at all,' does not mean, however, that the mere showing of permanent impairment of some sort automatically entitles a plaintiff to an instruction directing the jury to consider such damages. The quantum of evidence which must be produced before the issue can be submitted to a jury varies from case to case. See cases collected in 18 A.L.R.3d 88.

In some situations, as where a laborer suffers the loss of a limb, it is apparent from the nature of the plaintiff's vocation and the injury he sustained that his future earning capacity has been impaired. In such cases the fact of permanent impairment alone is enough to require an instruction that future earning capacity diminution is an appropriate element of damage. Holder v. Petty, 267 Or. 94, 514 P.2d 1105 (1973); Ianni v. Grain Dealers Mutual Ins. Co., 42 Wis.2d 354, 166 N.W.2d 148 (1969).

In other cases, however, as where a professional person sustains a relatively minor, albeit permanent injury of some sort, impairment of earning capacity is less obvious and the jury needs evidence connecting the injury to the alleged impairment before it can make a rational assessment of damages. In the absence of such evidence the issue should not go to the jury. City of Fairbanks v. Nesbett, Alaska, 432 P.2d 607 (1967); Ianni v. Grain Dealers Mutual Ins. Co., supra.

Although damages for impairment of earning capacity are by their nature not capable of precise calculation, they cannot be merely guessed at. They must be more than the end product of speculation and conjecture. City of Fairbanks v. Nesbett, supra; Ianni v. Grain Dealers Mutual Ins. Co., supra.

In the case now before us, it is clear that the mere fact that the plaintiff sustained an ankle injury does not, without more, warrant the conclusion that his earning capacity has been diminished nor does it provide a sufficient basis from which a valuation of any such diminution could be made.

The following additional facts, however, were brought out at trial:

(1) Plaintiff was age 18 at the time of his accident, 23 at the time of trial, and had a life expectancy of 52 years.

(2) Plaintiff was a senior in college at the time of trial. He was a sociology major and had no plans to go on to graduate school.

(3) The injury complained of caused a thirty percent permanent disablement of plaintiff's ankle and a twenty-four percent disablement of his leg as a whole.

(4) As a result of the accident, plaintiff is unable to lift heavy objects or to be on his feet for extended periods of time without experiencing considerable pain.

(5) Plaintiff can still drive an automobile but has difficulty with a standard shift.

(6) Plaintiff can no longer participate in the sports he used to enjoy (golf, bowling, watersking, football, baseball), and has difficulty performing tasks around the house.

(7) Before his accident, plaintiff was employed for the summer at a restaurant in Scarborough. He intended to work at a restaurant in Saco during the 1969-1970 school year but was unable to do so because of his injury. Plaintiff testified that he lost about $1,700 in wages because he was unable to work.

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