Plourd v. Southern Pac. Transp. Co.

• Decision Date: 01 May 1975
• Citation: Plourd v. Southern Pac. Transp. Co., 534 P.2d 965, 272 Or. 35, 75 Or.Adv.Sh. 1550 (Or. 1975)
• Parties: Donald F. PLOURD, Respondent, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, a corporation, Appellant.
• Court: Oregon Supreme Court

Page 965

534 P.2d 965

272 Or. 35

Donald F. PLOURD, Respondent, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, a corporation, Appellant.

Supreme Court of Oregon.

Argued and Submitted April 2, 1975.

Decided May 1, 1975.

James H. Clarke, Portland, argued the cause for appellant. With him on the briefs were Dezendorf, Spears, Lubersky & Campbell, Wayne Hilliard and Robert E. Maloney, Jr., Portland.

Edward J. Niland, San Jose, Cal., argued the cause for respondent. With him on the brief were Gearin, Cheney, Landis, Aebi & Kelley, John Gordon Gearin and Jeffrey M. Batchelor, Portland, and Boccardo, Blum, Lull, Niland, Teerlink & Bell and Heber N. Teerlink, San Jose, Cal.

Before McALLISTER, P.J., and DENECKE, HOLMAN, TONGUE, HOWELL and BRYSON, JJ.

TONGUE, Justice.

This is an action for damages for personal injuries sustained by a brakeman on a freight train. It is the second time that this case has come before this court. In a previous decision we set aside a jury verdict in favor of the plaintiff because of errors in the trial of the case and remanded it for a new trial. 266 Or. 666, 513 P.2d 1140 (1973). The case was then retried before a jury, which again returned a verdict in favor of the plaintiff. Defendant again appeals, charging further errors in the retrial of the case. We affirm.

With the exception of some new evidence, as discussed below, the facts of the case are set forth in our previous decision and need not be repeated.

1. The trial court did not err in admitting evidence of earnings of other employees and computations based upon such evidence.

Defendant's first contentions are that the trial court erred 'in receiving computations of the present value of the 1973 earnings of other railroad employees projected over plaintiff's working life expectancy' and 'in receiving testimony that the earnings of other employees in 1972 and 1973 were evidence of income which would have been available to plaintiff.'

In the appeal to this court following the first trial of this case the defendant did not assign as error the admission of evidence of the earnings of other employees, but complained of the admission of a computation by plaintiff's expert witness showing the present value of the future wages of another brakeman on the same division of the railroad with six months less seniority. In considering the admissibility of that evidence in our first decision in this case we pointed out (at 681--82, 513 P.2d 1140) that in our previous decision in Conachan v. Williams, 266 Or. 45, 511 P.2d 392 (1973), we had held (at 59, 511 P.2d at 399) that any evidence which would 'indicate fairly the Capacity of the plaintiff to earn money in his usual vocation' should be admitted. In Conachan we also recognized (at 61, 511 P.2d 392) that most court now apparently hold that on the question of earning capacity it is proper to consider, under some circumstances, employment for which plaintiff was qualified at the time of his injury and the usual compensation paid for such employment. We also held in that case, however (at 65, 511 P.2d 392), that although a trial judge has considerable latitude in the admission or rejection of such evidence, there should be a showing as a foundation for the admission of such evidence that circumstances are sufficiently similar so as to provide a proper basis for an informed decision by the trial judge whether such evidence has sufficient probative value so as to be properly admissible.

On the application of these rules to the testimony as offered by the plaintiff on the first trial of this case, the majority of this court held that the trial court erred in admitting that computation. The reason stated by the majority (266 Or. at 687, 513 P.2d at 1150) for that holding was that the admissibility into evidence of that computation must be based upon the following assumption:

'* * * (T)hat because there is similar seniority, there is sufficient similarity between earning capacities to make what the other workman earned relevant. The error in that assumption is that plaintiff's demonstrated earning capacity is at variance with such an assumption. Without any showing why plaintiff earned less (i.e., temporary illness, injury, etc.), the jury is allowed to assume that in the future plaintiff will earn as much as the other workman. This is not a valid assumption in the face of proof of what they actually earned and in the absence of proof why plaintiff in the past has been earning less.'

Thus, the primary question to be decided in determining whether it was error to receive similar computations and testimony on the retrial of this case is whether evidence was offered by plaintiff to show why he earned less than the employees whose earnings were used as the basis for such computations and why it was reasonable for the jury to assume that had he not been injured his earnings in the future would have been comparable to their earnings. In other words, was sufficient evidence offered by the plaintiff on the retrial of this case to satisfy the requirement of similarity in circumstances as a matter of a foundation for the admissibility of such evidence?

Upon examination of the record on the retrial of this case we find that the evidence offered by plaintiff of the earnings of other employees, upon which the computations of plaintiff's expert were based, consisted of the earnings of eight other brakemen, or brakemen-conductors, who were employed on the same division of defendant's railroad and whose seniority dates were closest to that of the plaintiff. Three employees with the next greater seniority were included, as well as five with the next lesser seniority. ¹ According to that evidence, for the year 1969 (the year prior to plaintiff's injury) he earned approximately $7,000, while the earnings of six of the eight employees ranged from $8,500 to $11,629. For the year 1970 plaintiff earned approximately $5,000 as of August 13, 1970 (projected to $8,000 for the year 1970), compared with a range of from.$8,4441 to $11,738 for three other employees. For the year 1972 (after plaintiff was injured) the range for the eight other employees was (with one exception) from $11,671 to $15,662 and for 1973 that range for all eight other employees was from $11,732 to $16,089. ²

The explanation offered by plaintiff for his smaller earnings for the year 1969 and 1970, prior to his injury, was that his wife had previously left him with the custody of six children, with the result that he chose the 'runs' that would permit him to be home more often, even though he might have taken other 'runs' which would have paid greater amounts in wages. He was remarried on June 29, 1969, a little over one year prior to his injury, but apparently still felt that it was desirable for him, at least at that time, to take 'runs' that would enable him to be home as much as possible. He and his family lived on a small farm because, according to his testimony, he wanted to bring up his children on a farm (as he had been brought up) so as 'to show the children how to live and give them some values.' He also testified that the small farm produced no income other than 'a little bit of meat for ourselves.'

By the time of the second trial, however, only the youngest of his six children remained at home--a boy age 16. Meanwhile, his income for the first seven and one-half months of 1970 had increased to $5,000 compared with $7,000 for the entire year of 1969. During 1970 he had also been notified of an opportunity for advancement from brakeman to conductor, which would have been open to him in January 1971, and was studying in preparation for qualifying for that advancement. Most of the other eight brakemen with comparable seniority had been advanced to conductor by the time of trial.

Plaintiff also offered testimony to show that he had worked since his graduation from high school and had a good employment record. He was described by his fellow employees as 'a very good man' as a brakeman, as 'a very competent man' and as an 'outgoing enthusiastic person' prior to his injury.

A more comprehensive foundation for the admissibility of the evidence of earnings of the other eight employees and the computations based upon their earnings might have been desirable. In our opinion, however, this testimony was sufficient as a foundation for the admissibility of both the testimony of the earnings of the eight other brakemen-conductors on the same division of the railroad with the closest seniority and the computations by plaintiff's expert witness based upon earnings within the 'range' of the earnings by those employees. ³

We believe that it could have been properly inferred from that evidence that plaintiff was not only a good father and family man, but was competent, hardworking, intelligent and ambitious, and that as he neared completion of the discharge of his responsibilities as a father in raising six children he would have not only sought promotion as a conductor, but would also have tkaen 'runs' that would have produced income comparable to the income of the other brakemen-conductors.

In addition, it must be recognized, as pointed out in Conachan v. Williams, Supra at 55--57, 64, 511 P.2d 392, that the issue in such cases is not the computation of plaintiff's actual future wage loss, which would often be impossible, but the impairment of plaintiff's future Earning capacity; that proof of the present value of the impairment of the earning capacity of an injured workman is also not only difficult, but such evidence is seldom, if ever, conclusive, and that evidence of earnings of other employees is admissible upon the issue of impairment of future earning capacity if there is a 'substantial similarity' in the circumstances. Also, as we recognized in our previous decision in this case (266 Or. at 682, 513 P.2d 1140) and in Conachan (266 Or. at 65, 511 P.2d 392) the trial judge has 'considerable latitude in the admission or rejection of...