Rieth-Riley Const. Co., Inc. v. McCarrell

• Decision Date: 15 April 1975
• Docket Number: RIETH-RILEY,No. 1--474A70,1--474A70
• Citation: 163 Ind.App. 613,325 N.E.2d 844
• Parties: CONSTRUCTION COMPANY, INC., Appellant (Defendant Below), v. Kenneth E. McCARRELL, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 844

325 N.E.2d 844

163 Ind.App. 613

RIETH-RILEY CONSTRUCTION COMPANY, INC., Appellant (Defendant Below), v. Kenneth E. McCARRELL, Appellee (Plaintiff Below).

No. 1--474A70.

Court of Appeals of Indiana, First District.

April 15, 1975.

Rehearing Denied May 15, 1975.

R. Stanley Lawton, William L. Skees, Jr., Indianapolis, John H. Himelick, Connersville, Kenneth A. Sullivan, Winchester, for appellant; Ice, Miller, Donadio & Ryan, Indianapolis, Himelick & Smith, Connersville, Hunter, McCoy, Sullivan & Chalfant, Winchester, of counsel.

John Cook, Winchester, Darrell K. Peckinpaugh, Muncie, for appellee; John Cook, Winchester, Warner, Peckinpaugh & Warner, Muncie, of counsel.

LYBROOK, Judge.

Plaintiff-appellee McCarrell was awarded damages in the sum of $111,150.00 for injuries sustained when his automobile collided with a piece of pipe which had entered the traveled portion of State Road #3 near New Castle while being dragged along the berm of the road by defendant-appellant, Rieth-Riley Construction Co., Inc. Rieth-Riley's appeal presents the following issues for review:

1. Whether the jury was improperly instructed upon loss of earnings as an element of damages.

2. Whether the damages were excessive.

3. Whether the court erred in refusing to give two of defendant's instructions regarding weight of testimony, and credibility of witnesses.

4. Whether the court erred in admitting a prior statement of a witness.

5. Whether the court erred in permitting the plaintiff to question prospective jurors, during voir dire, concerning certain legal principles.

6. Whether the jury verdict was supported by sufficient evidence.

The record reveals that on May 5, 1971, the date of the collision, Rieth-Riley, pursuant to a contract with the State of Indiana, was in the process of widening State Road #3 in and around New Castle. However, at the site of the collision the highway had not yet actually been widened, and only the original two-lane road was in existence. Grading had been completed where the accident occurred, and there was a drop off at the side of the road of ten to fifteen inches. Nevertheless, traffic had been maintained and was, in fact, using this highway on the date of the accident.

On that day a grading procedure was taking place approximately one mile south of the point of collision. In the process of grading the area it was necessary that Rieth-Riley remove an old gas main that followed the contour of the terrain. A backhoe was used to remove the pipe from the ground. In order to transport the pipe to a nearby storage yard it was necessary to cut two holes in it, insert a chain through the holes and fasten the chain to the backhoe. Terry Stevenson, operator of the backhoe, then commenced to drag the pipe along the unfinished section of the road toward the storage yard, which was approximately 3/4 of a mile away. The pipe was steel or cast heavy material, six inches in diameter and two hundred sixty (260) feet long. The pipe was being dragged or pulled over the ground approximately fifteen to twenty feet from the edge of State Road #3. Donald Pound, employee-foreman of Rieth-Riley, walked along the side of the pipe from shortly behind the backhoe to the end of the pipe to make sure that there were no incidents concerning the pipe. Nothing unusual occurred durng the 3/4 of a mile to a mile traveled to the location of the accident. Pound testified that he had to walk slower than normal to keep pace with the pipe.

There was no work in progress in the area where the collision occurred, nor was there other equipment in this area. There were no other workmen, watchmen, flagmen, construction equipment, or warning signs in the area where the accident occurred.

Stevenson had to make a turn of the backhoe in order to pull the pipe into the storage yard area. Because of a bow in the pipe, the pulling and the strain when changing angle and direction caused the pipe to make some vibrating type movements. These vibrations resulted in the pipe flopping or popping up onto the traveled portion of State Road #3. Pound testified that the pipe extended three or four feet upon the traveled portion of the road. At the time the pipe came upon the roadway McCarrell's car was twenty to thirty feet away. The collision occurred quite suddenly with McCarrell's car striking the pipe while the pipe was moving. Pound testified that there was nothing unusual about the speed of plaintiff's automobile. Additionally, Stevenson, the operator of the backhoe, knew nothing of the accident. McCarrell did not have time to turn his automobile and avoid the pipe. The only eyewitness, Pound, stated that the pipe was warped and that 'when you drag (the pipe) along old Mother Earth anything can happen.'

I.

Initially, Rieth-Riley submits that the trial court erred in giving the following final instruction over timely objections:

'If you find for the plaintiff on the question of liability, you then must determine the amount of money which will fairly compensate plaintiff for those elements of damage which were proved by the evidence to have resulted from the negligence of defendant. You may consider:

(f) The value of lost time, earnings or salary, and loss or impairment of earning capacity. . . .'

This instruction informs the jury of a plaintiff's right to be compensated for the value of time which he has lost because of the injury. Rieth-Riley contends, however, that this instruction is erroneous in that it authorizes a recovery for McCarrell for lost time when the evidence conclusively reveals that at the time of the accident McCarrell was unemployed. Rieth-Riley argues that a plaintiff unemployed at the time of the accident is not entitled to recover for lost time which, according to Rieth-Riley, is lost earnings or salary.

Resolution of this issue necessitates a close examination of an element of damages generally referred to as impaired earning ability. In a personal injury action, upon a proper showing of liability, the plaintiff is entitled to recover for resultant impairment of earning ability, if any. Although called 'impairment of earning ability', that which the plaintiff is entitled to recover is actually the value of the time which he has lost and probably will lose because of the injury. 22 Am.Jur.2d, Damages § 89. Historically, many courts have recognized that this element of damage--value of time--is comprised of two distinct sub-elements which are usually denominated:

(1) loss of time, and

(2) decreased earning capacity.

See, Scott v. Nabours (1973), Ind.App., 296 N.E.2d 438; 22 Am.Jur.2d, Damages §§ 89, 90, 92.

The first of these sub-elements, loss of time, refers to the time which the plaintiff has lost prior to trial because of his injury, while the second, decreased earning capacity, designates the time which probably will be lost after trial. In both cases, it must be emphasized that the compensable element is time. It is the time which belonged to the plaintiff and which plaintiff's injury has deprived him of that is compensable. Thus, most courts permit an employed plaintiff to recover for his time lost even though an insurance company has compensated him for lost wages or his employer continued his wages for all or part of the time of his injury. 22 Am.Jur.2d, Damages §§ 208, 210.

In the case at bar, it is the first of the sub-elements of impairment of earning ability, loss of time, with which we are concerned. Rieth-Riley maintains that since McCarrell was not employed at the time of the collision, loss of time was not an appropriate element of damage for jury consideration. As authority Rieth-Riley relies heavily upon the language of Scott v. Nabours, supra. In Scott, the court recognized the distinction between the two sub-elements of impairment of earning ability. In doing so, however, the court designated the first element (loss of time) as loss of earnings. While loss of earnings is an appropriate element to consider in determining the value of plaintiff's loss of time, it is by no means the exclusive measure. Generally, see 22 Am.Jur.2d, Damages § 91.

Further insight to this question of compensability of loss of time for an unemployed plaintiff may be gained from the following:

'Damages are awarded an injured plaintiff for the loss of his capacity to earn money; they are not awarded for his lost earnings--although earnings at the time of injury, in cases where the plaintiff was employed, are evidence of the value of that earning capacity. Therefore, it is not necessary for the plaintiff to be employed at the time of the injury for the jury to be able to compensate the plaintiff both for the value of the time lost after the injury and before the trial and for the value of the impairment to his capacity to earn money in the future. If sufficient evidence has been introduced, substantial damages may be awarded the unemployed plaintiff for both of these damage elements (lost time and decreased earning capacity). The time belonged to the plaintiff, who had a right to work and to earn money. Even though the plaintiff was not employed, he is entitled to full compensation for an impairment of this right--assuming, of course, that the impairment was the result of the fault of the defendant.

'On this basis, an injured housewife has been granted a substantial recovery for the value of the decrease in earning capacity resulting from defendant's fault. Likewise, a person who is performing services gratuitously may recover damages for lost time and impaired earning capacity, and a verdict which does not include these elements has been reversed on appeal.

'Difficulty arises in measuring the value of an unemployed plaintiff's lost time and capacity to earn money in the future. While the law is clear that the plaintiff has a right to his own time--which right cannot be taken from him by a tortfeasor without compensation--the law is also clear that damages cannot be awarded on the speculation, passion, or guess of...