Morrison v. State
| Citation | 516 P.2d 402 |
| Decision Date | 03 December 1973 |
| Docket Number | No. 1883,1883 |
| Parties | May MORRISON, Guardian of the Estate of Brenda Vogt Tuthill, an incompetent, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
William H. Fuld, of Kay, Miller, Libbey, Kelly, Christie & Fuld, Anchorage, for appellant.
Charles Hagans and Sanford M. Gibbs, of Hagans, Smith & Brown, Anchorage, for appellee.
Before RABINOWITZ, C. J., and CONNOR, BOOCHEVER and FITZGERALD, JJ.
Appellant Brenda Vogt Tuthill, is a minor who appears here through her guardian, May Morrison. Appellant was injured in an automobile collision which occurred in 1967, when she was a passenger in a vehicle operated by her mother. The action was brought on behalf of the appellant against her mother and the State of Alaska, the appellee here.
Appellant's claim against her mother was settled for $50,000. Her claim against the State under the Alaska Tort Claims Act, 1 resulted in a favorable judgment to her amounting to $266,000 together with prejudgment interest. Since $50,000 had been recovered on the claim against appellant's mother, the judgment against the State was reduced to $216,000.
Both appellant and appellee took appeals from the judgment. In Abbott v. State, 498 P.2d 712 (Alaska 1972), this court affirmed the trial court's findings on the liability issues but we were unable to rule on the damage issues, because the findings were found to be insufficient. The case was remanded to the superior court for more specific findings on damage issues. On remand the trial judge entered a memorandum opinion including more detailed findings. Appellant has now appealed for the second time claiming the damages awarded by the trial court are inadequate. She petitions this court to enter a proper and adequate award.
Regretfully, we conclude we must vacate the judgment and once again remand the case. We find clear error affecting two items of damage which involve substantial amounts of money.
The trial judge found that at the time of the accident appellant was 13.5 years of age and had a life expectancy of 50 years. He found as well that she had suffered a total loss of her future earning capacity as a result of injuries incurred in the collision. The trial court surmised that appellant would work five years at an annual salary of $8,000 as a secretary and would then marry. He concluded her total 'lost earnings' would amount to $40,000.
We held in City of Fairbanks v. Nesbett, 432 P.2d 607, 617 (Alaska 1967) that impairment of earning capacity is the permanent diminution of the ability to earn money. Appellant is correct in her contention that the trial judge should have made his award for appellant's lost earning capacity rather than 'lost earnings.' It may not be assumed that because some women become housekeepers that they thereby lose their earning capacity. The expert testimony at trial revealed that the average white Alaskan female, including women both employed and unemployed, will earn about $175,000 during her lifetime. The average white Alaskan female who remains employed throughout her career will probably earn $350,000 to $400,000.
Most jurisdictions have recognized the right of an injured housewife to recover for impaired earning capacity regardless of whether or not she was employed before the injury or intended to be so at a later date. As the court in Florida Greyhound Lines, Inc. v. Jones, 60 So.2d 396, 398 (Fla.1952), said:
'. . . (I)t might well happen that a woman who has never earned a cent but has faithfully and successfully discharged her duties as a wife and mother would suddenly be faced, by the loss or disability of her mate, with the necessity to earn money to continue maintaining her home and rearing her brood . . ..
. . . The measuring of the loss cannot be put off until another day . . .. (T)here is but one trial-and that is now.' 2
Appellee relies on Beaulieu v. Elliott, 434 P.2d 665 (Alaska 1967), for the general rule that a determination of damages by the trial court is a finding of fact which will not be disturbed on appeal unless clearly erroneous. We adhere to that principle. Certainly in many cases, as is true in this case, some items of damage cannot be fixed with mathematical precision. In those instances the trial judge is necessarily forced to estimate and as long as he follows the correct rules of law, and his estimation appears reasonable and is grounded upon the evidence, his finding will remain undisturbed.
We find no flaw in the trial judge's estimation of appellant's loss of earning capacity. However, in computing the amount of damages for this loss, the trial judge misapplied a rule of law. He concluded that appellant is not entitled to recover for impaired earning capacity following marriage. At the time of the argument on this appeal, appellee forthrightly conceded that appellant's damages could not be so limited. However, appellee contends that the trial court did make allowance for impairment of earning capacity but bulked that award into a category which he termed 'lost enjoyment of life.' This contention is not tenable because nothing can be found in the record to support it. Nor is it logically sound in view of the remand on the first appeal, which directed the trial court to make explicit his findings on the damage issues. Appellee's contention is mere conjecture.
Appellant is, of course, entitled to recover the full amount for her diminished earning capacity. This is not to say that she is necessarily entitled to the full amount which she would earn were she to be employed for her entire life. The trial court could properly allow as an offset against the overall amount a sum which reflects the fact that appellant can still function to some degree as a housewife. But even if appellant were able to function as a normal housewife, she would still be entitled to an award for impaired earning capacity, because she has lost the capacity to work in commercial enterprises.
Appellant suggests that this court make an award for earning capacity rather than remanding to the superior court. Although such a procedure is not unusual 3 we decline to adopt such a radical remedy in this case. The trial court is in the best position to judge the credibility of witnesses and the persuasiveness of testimony, as well as other considerations which are of importance in assessing damages in a personal injury action. We find it inappropriate in this case to bypass established principles of appellate procedure.
Appellant also contends that the trial court was in error in finding she had a life expectancy of 50 years at the time of the accident. The only evidence relating to appellant's life expectancy was a standard mortality table which revealed the average life expectancy of a 13.5 year old American female to be some 63.5 years. No evidence was presented from which it can reasonably be inferred that appellant had a shorter than normal life expectancy at the time of the accident. Nor was any reason given for disregarding the mortality table. We find the trial court's finding in this respect clearly erroneous. 4 On remand the trial court should make new findings on appellant's preaccident life expectancy. While the mortality table is not binding on the court, there must be some evidence in order to justify a departure from the table.
One other aspect of damages arising from shortened life expectancy remains for consideration. In fixing damages arising from permanent injury resulting in reduced earning capacity, the trial court must base the award on preinjury life expectancy rather than a shortened expectancy due to the injury. In such circumstances, the tort-feasor should not be able to reap the benefit of the victim's shortened life occasioned by permanent injury for which the wrongdoer is responsible. Hallada v. Great Northern Ry., 244 Minn. 81, 69 N.W.2d 673, cert. denied, 350 U.S. 874, 76 S.Ct. 119, 100 L.Ed. 773 (1955); Restatement of Torts § 924, comment (e), at 635 (1939); C. McCormick, Damages § 86, at 303-304 (1935).
However, damages for future pain and suffering and for anticipated medical and custodial care, such as were awarded in the instant case, are based on actual life expectancy at the time of trial. This is so because it would be inappropriate to award damages for future pain which will not occur, or for medical expenses which will not be incurred because of the shortened life span of the victim. Naturally, the knowledge of decreased life expectancy may lead to emotional distress or suffering which may be considered in assessing future pain and suffering.
Appellant contends that the trial court made no award for pain and suffering. It...
To continue reading
Request your trial
-
Precopio v. City of Detroit, Dept. of Transp.
...53 (Okl., 1976); Rodrigues v. Hawaii, 472 P.2d 509, 521 (Haw., 1970); Patrick v. Sedwick, 413 P.2d 169 (Alaska, 1966); Morrison v. Alaska, 516 P.2d 402 (Alaska, 1973).16 Although Precopio had felt pain on flexion-extension of his cervical-dorsal spine and had showed some rigidly of his spin......
-
U.S. v. Bedonie, 2:02-CR-00690-PGC.
...(3rd Cir.1972); Gilborges v. Wallace, 153 N.J.Super. 121, 379 A.2d 269 (1977) (implicitly endorsing sex-based tables); Morrison v. State, 516 P.2d 402 (Alaska 1973) (endorsing data for white Alaskan females); Johnson v. Misericordia Community Hospital, 97 Wis.2d 521, 294 N.W.2d 501, 527 (Ap......
-
American Nat. Bank & Trust Co. of Chicago v. Thompson
...v. Marina Mercante Nicaraguense, S.A. (2nd Cir.1980), 634 F.2d 30; United States v. English (9th Cir.1975), 521 F.2d 63; Morrison v. State (Alaska 1973), 516 P.2d 402; but see Raines v. New York Central Ry. Co. (1970), 129 Ill.App.2d 294, 263 N.E.2d 895, rev'd on other grounds 51 Ill.2d 428......
-
Feldman v. Allegheny Airlines, Inc.
...it must be emphasized that compensation is based on the loss of earning capacity, not future earnings per se. See Morrison v. State, 516 P.2d 402, 404-405 (Alaska 1973). See also the cases collected at 25 C.J.S. Damages § 40, at 727-728, nn. 60-63 (1966); Annotation, 151 A.L.R. 479, 494-495......