Mahoney v. Pearce

• Decision Date: 21 March 1928
• Docket Number: 1410
• Parties: MAHONEY v. PEARCE [*]
• Court: Wyoming Supreme Court

265 P. 446

38 Wyo. 151

MAHONEY v. PEARCE ^[*]

No. 1410

Supreme Court of Wyoming

March 21, 1928

ERROR to District Court, Natrona County; BRYANT S. CROMER, Judge.

Action by P. C. Pearce against Mike Mahoney. Judgment for plaintiff and defendant brings error.

Affirmed.

Nichols & Stirrett and E. E. Enterline, for plaintiff in error.

Defendant was called for cross-examination as to his financial worth and was permitted to testify over objections; these objections should have been sustained. Plaintiff was permitted to testify as to the general condition of the trucking business in which he was engaged when injured, but was not interrogated as to what his earnings had been prior thereto; plaintiff was permitted to introduce evidence of earnings of other truck drivers who drove trucks similar to the one driven by plaintiff; all objections to the foregoing should have been sustained, 17 C. J. 894-896; Turner v Ry. Co., (Wash.) 55 A. S. R. 883; Bonneau v. R. R Co., (Calif.) 93 P. 106; Diamond Co. v. Harryman (Colo.) 92 P. 922. Defendant was not permitted to show what led up to the assault, or the mental attitude of either of the parties; this was error, 5 C. J. 674; 2 R. C. L. 68-69; Bond v. Williams, (Mo.) 214 S.W. 202; Mortimore v. State, 24 Wyo. 452; Durham v. State, 29 Wyo. 86. Defendant acted in self defense, Frew v. Teagarden, (Kans.) 205 P. 1023. Instruction No. 1 was erroneous as it was based upon incompetent evidence, C. & N.W. R. Co. v. Ott, 33 Wyo. 200; Derr Co. v. Gelruth, (Okla.) 120 P. 253; Gosa v. Hyde, (Wash.) 202 P. 274; Quinlan v. Jones, 27 Wyo. 410. Instructions on future pain and suffering being speculative should not have been given, Green v. Power Co., 9 A. & E. Ann. Cas. 1052; 17 C. J. 764; C. B. & Q. R. Co. v. Lampman, 18 Wyo. 106; 8 R. C. L. 206; Ongaro v. Twohy, (Wash.) 94 P. 916; Wilson v. Fleming, (W. Va.) 109 S.E. 810. Where instructions are inconsistent, even though someone correctly stated the law, the appellate court cannot determine whether the jury followed the correct or erroneous statement of the law; Palmer v. State, 9 Wyo. 40; Clay v. State, 15 Wyo. 42; Nagel v. City, (Mont.) 250 P. 445. The judgment should be reversed.

Hagens & Murane, for defendant in error.

Evidence with reference to the earnings of truck drivers and the general condition of the business was introduced for the purpose of showing value of plaintiff's services lost as an instance of the assault made by defendant; this was a proper measure of damages, Cosgriff Bros. v. Miller, 10 Wyo. 233; defendant could have requested an instruction on this branch of the case, 17 C. J. 1077; evidence as to plaintiff's earning power was material, Shaw v. R. R. Co., (Calif.) 107 P. 108; even though there was a subsidiary investment of money, 17 C. J. 899; plaintiff's mere threat to slap defendant's wife was no justification for the assault, Mortimore v. State, 24 Wyo. 481; evidence thereof was not admissible in mitigation of damage, Williams v. Campbell, 22 Wyo. 1; 5 C. J. 676; the better rule is stated in 5 C. J. Sec. 69; the evidence was too remote to be received even in litigation for punitive damages, 2 R. C. L. 588; 11 L.R.A. (N.S.) 671. The case of Frew v. Teagarden, cited by plaintiff in error is not in point on the facts. Instructions complained of clearly presented the issues to the jury, 17 C. J. 1077; defendant had a fair and impartial trial; the judgment is sustained by decisions of this court; Cosgriff Bros. v. Miller, supra, Williams v. Campbell, 22 Wyo. 1; Hall Oil Co. v. Barquin, 33 Wyo. 92; no error has been pointed out by plaintiff in error; it is fairly well settled in this jurisdiction that the appellate court must be convinced not only that error was committed but that error was highly prejudicial before the case will be reversed. Judgment should be affirmed.

BLUME, Chief Justice. KIMBALL and RINER, JJ., concur.

OPINION

BLUME, Chief Justice.

On June 2, 1922, plaintiff, a truck-driver, and Mrs. Mahoney, wife of the defendant, had an automobile collision on the streets of Casper. On June 4, 1922, the plaintiff, according to his testimony, went to see the defendant in reference to the expenses of repairing defendant's car, injured in the collision, claiming that he should not be responsible for all of the expenses. This was at the garage of one Van Sant, plaintiff's attention having been called to the fact that defendant was in the place. Upon meeting, the latter committed a battery upon the plaintiff, as a result of which one of plaintiff's teeth and the left jaw was broken. The testimony shows that he underwent three different operations. At one of the operations an aluminum plate was fitted into his mouth and was cemented and wired into his jaw in an effort to hold the two portions of the jaw bone together, so that they would knit. After the wiring was done, necrosis of the bone set in and a large part of the jawbone was eaten away. The two pieces of the jawbone were afterwards united by a soft cartilage. Plaintiff was in the hospital on two different occasions, the first time for approximately fourteen days and the second time for approximately three days, during which time a nurse or nurses attended him. For more than two months plaintiff was fed only liquid food through a tube, and for approximately three months the mouth was washed with an antiseptic solution through a tube in the opening of the jaw, to irrigate and cleanse the mouth. Where irrigation did not reach the pus it was necessary to use a probe or swab. Plaintiff was continuously under the care of a physician from June 4 until November, 1922, and during the treatments he underwent considerable suffering. As the direct and indirect result of the injury, he lost two teeth, in addition to the tooth which was broken by the defendant. The bones of the jaw have never grown together, leaving quite an interval which, instead of being rigid is merely filled by a soft cartilage which permits the jaw to wobble, distorts his face, impairs his speech, and gives very little, if any, power of pressure. The injury is permanent in its nature. Some other facts will be mentioned herein later, but the foregoing statement is sufficient to indicate in a general way the character of the injuries sustained by the plaintiff as a result of the battery above mentioned. Defendant admitted the battery, but claimed that it was in self defense. The case was tried to a jury, who returned a verdict in favor of plaintiff in the sum of $ 8505.85, upon which judgment was rendered. From this judgment defendant has brought this case here by petition in error.

1. It was shown by the testimony that plaintiff was a truck-driver, driving his own truck; that the amount of his earnings depended largely on his individual exertions, and that work for truck-drivers was plentiful in the summer of 1922. Over the objection of the defendant, it was shown that the wages of the ordinary truck-driver was from $ 8.00 to $ 10.00 per day. Plaintiff was asked, and was permitted to state, over objection, what his earnings would have been during that summer, if he had not been injured, and other witnesses were permitted to state, over objection, what the earnings generally were of truck-drivers with a truck similar to that of plaintiff. The admission of this testimony is assigned as error.

It is not argued that it was improper to show the profits and earnings, so as to aid the jury in arriving at the value of the plaintiff's loss of time, and we need not discuss that point, but it is contended, as we understand it, that plaintiff could not testify as to what his earnings would have been during the summer of 1922, without showing his earnings previous to the time of his injury, and we are cited to Turner v. Ry. Co., 15 Wash. 213, 46 P. 243, in which it was held that the plaintiff in the case, a lawyer, was improperly permitted to state his own opinion or estimate of his loss of time without stating the facts upon which it was based, namely, his earnings of the past. That the earnings of the past furnish the proper basis for estimating the value of lost time in such case is also held in Sedgwick on Damages, Section 180; and see Bonneau v. Ry. Co., 152 Cal. 406, 93 P. 106, cited in defendant's brief. Counsel for defendant claims that the case at bar is similar to the Turner case, in view of the testimony that plaintiff's earnings depended largely on his own exertions. We can accept that view only partially, and must recognize the fact that the occupations are dissimilar, making the rule of the Turner case inapplicable here. A truck-driver might be able to find plenty of work, while a lawyer would be anxiously waiting for clients. In a number of cases a plaintiff, in an action for personal injury, has been permitted to state his opinion and give his own estimate of the value of his lost time, as for instance, where a plaintiff was a farmer: Delano v. Pierce, 225 F. 976; a bartender: Schlumbrecht v. City Ry. Co., 153 Ill.App. 254; a housekeeper: St. L. & S. F. Ry. Co. v. Horne, (Tex. Civ. App.) 130 S.W. 1025; a trader in cattle: G. C. & S. F. Ry. Co. v. Bell, 24 Tex. Civ. App. 579; a merchant: Howard v. McCabe, 79 Neb. 42, 112 N.W. 305. In fact, some of the courts have gone much further and have held that in many cases the jury may fix the value of lost time from their own knowledge. Thus it is said in Sutherland on Damages (4th Ed.) Sec. 1348, page 4719:

"In the case of an ordinary laborer the jurors may be presumed to be reasonably familiar with the value of his services, and they measure it by their knowledge and experience. The same rule has been applied to the value of the services of a nurse, to the earnings of a peddler who supported his family by his sales, of a merchant, of a farmer, though the cases...