Klink v. Cappelli

• Decision Date: 07 October 1993
• Docket Number: No. 92-1765,92-1765
• Citation: 508 N.W.2d 435,179 Wis.2d 624
• Parties: Paul KLINK, Plaintiff-Appellant, d v. John E. CAPPELLI, Larry R. Neu, Heritage Mutual Insurance Company, and State Farm Mutual Automobile Insurance Company, Defendants-Respondents.
• Court: Wisconsin Court of Appeals

Page 435

508 N.W.2d 435

179 Wis.2d 624

Paul KLINK, Plaintiff-Appellant, ^d v. John E. CAPPELLI, Larry R. Neu, Heritage Mutual Insurance Company, and State Farm Mutual Automobile Insurance Company, Defendants-Respondents.

No. 92-1765.

Court of Appeals of Wisconsin.

Submitted on Briefs July 9, 1993.

Opinion Released Oct. 7, 1993.

Opinion Filed Oct. 7, 1993.

Before EICH, C.J., GARTZKE, P.J., and DYKMAN, J.

GARTZKE, Presiding Judge.

Paul Klink appeals from a judgment awarding him $23,383.08 as a passenger in an automobile accident. Klink argues that the trial court erred in: (1) refusing to submit his lost past earning capacity to the jury, ¹ (2) allowing each of the two defendants three peremptory challenges, (3) excluding a police officer's supplementary report from the evidence and (4) imposing a $660 "fine" for plaintiff's counsel's excusable neglect. ² We conclude Klink is not entitled to a new trial.

The facts are the following: On December 11, 1988, Klink and John Cappelli left a Christmas party at Bob and Cindy's Tap and Trap. Cappelli was driving. His car collided with Larry Neu's. Klink went through the windshield and suffered facial lacerations.

In October 1990, Klink brought this action for damages against Cappelli, Neu and their insurers alleging that Cappelli and Neu had negligently operated their vehicles. In April 1992, the jury found Cappelli causally negligent and Neu negligent but not causally negligent. The jury found Klink was causally negligent.

Klink contends that the trial court should have submitted to the jury a question concerning loss of his past earning capacity. In the alternative, he contends he was entitled to an award based on the minimum wage. We disagree.

Framing a verdict rests in the discretion of the trial court. We will not interfere with that discretion so long as the issues of fact in the case are covered by appropriate questions. McDonnell v. Hestnes, 47 Wis.2d 553, 563, 177 N.W.2d 845, 851 (1970).

The trial court did not err in refusing to submit the lost past earning capacity question to the jury. The court concluded that an inference of a loss of past earning capacity could not be drawn from the evidence presented. We agree. Klink failed to provide sufficient evidence to make the issue of what he was reasonably capable of earning a question of fact for the jury.

Damages for impaired earning capacity are generally arrived at by comparing what the injured party was capable of earning before and after the time of the injury. Ballard v. Lumbermens Mut. Cas. Co., 33 Wis.2d 601, 609-10, 148 N.W.2d 65, 70 (1967). The comparison requires evidence relating to earning capacity before and after an injury. Without that showing, the jury must speculate or conjecture as to the amount of lost earning capacity. Schulz v. St. Mary's Hosp., 81 Wis.2d 638, 658, 260 N.W.2d 783, 790 (1978).

Relying on Johnson v. Misericordia Community Hosp., 97 Wis.2d 521, 294 N.W.2d 501 (Ct.App.1980), Carlson v. Drews of Hales Corners, Inc., 48 Wis.2d 408, 417-18, 180 N.W.2d 546, 551 (1970), and Ballard, 33 Wis.2d at 608, 148 N.W.2d at 69-70, Klink distinguishes a wage loss from a lost past earning capacity. He argues that to entitle him to a verdict question on the loss of past earnings he had only to show he had a past earning capacity and that it was reduced. In his view, recovery for a lost past earning capacity does not require evidence of lost wages. We disagree. The law of damages is concerned with money. A plaintiff may recover only the value of a lost earning capacity. In the absence of evidence, such as past wages or expert testimony, regarding the value of that lost capacity, a plaintiff recovers nothing.

Misericordia Community Hospital is inapposite. That case involved a challenge to the jury's award for past and future loss of earning capacity. The jury determined damages based on a lifetime loss of earning capacity because of permanent paralysis of the plaintiff's right thigh muscles. The plaintiff minor had a sparse work record, but he showed through U.S. Department of Commerce computations that a person of his age and background could potentially earn $6,126 annually. His work life expectancy was forty-one and one-half years, and the jury awarded him $90,000 or 35.4% of what he would have earned according to those figures. The Misericordia court affirmed the award. Here, Klink testified that he had worked as a part-time relief truck driver before the accident, but he offered no evidence regarding his wages for that or any other work. Absent such evidence the jury could not compute his damages for lost earning capacity.

The Carlson court held that the plaintiff who was unemployed at the time of her injury was entitled to recover loss of earning capacity. Carlson, 48 Wis.2d at 417, 180 N.W.2d at 550-51. The Carlson court concluded that "an instruction for damages in a personal injury suit couched in terms of 'loss of wages' is always incorrect" but may not be unfairly prejudicial because "in many cases the wage loss is an accurate gauge of loss of earning capacity." Id. at 417, 180 N.W.2d at 551. To require an unemployed person to show lost wages would preclude recovery for the lost opportunity to work. Klink however had been employed. What he earned would have provided a basis for computing his lost wages and therefore his lost earning capacity, but he provided no evidence of his past earnings.

The Ballard court rejected the contention that damages for the inability of a part-time employee to work are measured solely in terms of loss of earnings. The court concluded that:

The proper test is whether the plaintiff's capacity to earn has been impaired, although the comparison of the earnings after the accident as compared to the earnings before the accident is some evidence of earning capacity. In determining past and future loss of earning capacity the question is not whether plaintiff would have worked, by choice. He is entitled to compensation for his lost capacity to earn, whether he would have chosen to exercise it or not.

Accordingly, there need be no proof of the availability of future employment if there is proof of a lessened capacity.

Ballard, 33 Wis.2d at 608, 148 N.W.2d at 69-70 (citations omitted) (emphasis in original).

The Ballard court affirmed a $4,000 award for past and future loss of earnings where the plaintiff had shown $500 in past wage loss. It also concluded that the evidence supported the award, partly because the plaintiff produced wage records showing the wage losses she had suffered due to an inability to work preceding the trial. But Klink failed to introduce any evidence comparing his unimpaired ability to earn before the accident with his ability to earn up to the time of trial.

We reject Klink's contention that he was at least entitled to minimum wage compensation. No evidence shows what he was reasonably capable of earning while recovering. Klink could have presented evidence about the number of hours he was reasonably capable of working as a relief driver while recovering, as well as the wages he was reasonably capable of earning. Failing that, we conclude the minimum wage provides no meaningful guide as to how much a particular individual is reasonably capable of earning. Some persons are incapable of earning even the minimum wage for an extended period.

The trial court gave each of the two defendants three peremptory challenges. Section 805.08(3), Stats., allows the court to provide each defendant up to three peremptory challenges if the parties have "adverse interests" and the court is satisfied that the "due protection of their interests so requires." We may reverse the court's ruling if the record does not support it. Maier Construction, Inc. v. Ryan, 81 Wis.2d 463, 473, 260 N.W.2d 700, 704 (1978).

Klink asserts that Neu and Cappelli lacked adverse interests because they were represented by the same liability insurance...