Shea v. Same
| Decision Date | 14 September 1934 |
| Citation | 192 N.E. 44,287 Mass. 454 |
| Parties | SHEA v. RETTIE. MURPHY v. SAME. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Worcester County; D. F. Dillon, Judge.
Actions of tort by Thomas Shea and by Thomas P. Murphy against John Rettie or John N. Rettie. The court ordered judgments on auditor's report for plaintiffs respectively in the sums of $4,903.40 and $973, and defendant brings exceptions.
Exceptions overruled.
H. E. Manning, of Worcester, for plaintiff Shea.
J. L. Bianchi, of Worcester, for plaintiff Murphy.
H. F. Hathaway, of Taunton, for defendant.
The plaintiffs, while engaged in the performance of their duties as police officers of the city of Worcester, were injured in a collision of two motor vehicles, one of which was operated by the defendant. The finding that the defendant is liable to the plaintiffs for injuries resulting from his negligence is not now questioned. The defendant's requests for rulings, which were denied by a judge of the superior court who heard the cases on an auditor's report, raise only the question whether the judge in the assessment of damages erred in not taking into account the fact that during the disability of the plaintiffs they were paid their wages by the city.
Each of the plaintiffs as a result of the defendant's negligence was for a time entirely incapacitated for labor. Then, as to each, there was a period during which he continued to be unable to perform his ordinary duties as a patrolman but was able to do and did do other and less exacting work for the police department. Each was paid one half his regular pay for the first three weeks of his disability and thereafter received his regular pay during the period while he was unable to do his work but was able to and did perform other work for the police department. The rules and regulations of the Worcester police department which the auditor found ‘in certain respects deal with and control the employment, duties and compensation of members of the police force’ contain a provision that ‘When officers are absent from duty on account of sickness or injury which is certified to’ by an approved physician ‘half pay for lost time will be allowed for a period not exceeding thirty days' and further provide that ‘When Police Officers are absent from duty on account of sickness or injury caused by unusual exposure or exertion while on duty, and such sickness or injury is certified to by’ an approved physician ‘full pay for loss of time will be allowed.’ The auditor found as to each plaintiff that ‘conforming to these rules and by virtue of their provisions he received * * * pay’ as above stated.
The power of the plaintiffs to work was entirely taken away from them during some weeks immediately following their accident. That power was lessened during the later period while they continued to be unable to perform their regular duties as patrolmen. These were direct results of the defendant's negligence for which they are entitled to compensation from the defendant. Among the consequences of personal injury negligently caused for which an injured party is entitled to be compensated by the wrongdoer is the loss or any lessening of his ability to work. Hendler v. Coffey, 278 Mass. 339, 179 N. E. 801;Millmore v. Boston Elevated Railway Co., 198 Mass. 370, 84 N. E. 468. The process of ascertaining the amount of compensation to be awarded for impairment of the capacity to work requires, first, the determination of the extent to which such capacity has been diminished and, second, the fixing of the amount of money which will compensate for the determined extent of impairment. The difference between the amount of wages or salary a person has been receiving before being injured through the negligence of another and the amount received as wages or salary after his injury is not necessarily the equivalent in money of the injury done to his capacity to labor. Without any testimony as to the plaintiff's wages or salary the evidence in a case may be such that the extent of the impairment of his working capacity can be measured in dollars and cents by a fact finding tribunal. Cross v. Sharaffa, 281 Mass. 329, 183 N. E. 838. In this commonwealth a plaintiff seeking damages for personal injuries is not entitled to recover as such the wages he has lost as the result of his injury. Donoghue v. Holyoke Street Railway Co., 246 Mass. 485, 493, 141 N. E. 278, and cases cited. But the difference between the amounts which one has earned and received before and after an injury generally affords some indication of the economic value of his loss through the impairment of his working capacity (Murdock v. New York & Boston Despatch Express Co., 167 Mass. 549, 46 N. E. 57) and evidence of loss of wages or salary is admissible on that issue.
Under the rule of damages followed in the present cases the amounts paid by the city to the plaintiffs following their injuries were disregarded. The auditor found that during the period in which these payments were made the plaintiffs were in fact unable to perform their ordinary and regular duties as patrolmen. They were, however, paid by the city the amounts that they would have received had they been able to perform and in fact had performed those duties. The amount of the payments was not fixed on the basis of their capacity to labor during the periods when the payments were made. The payments were made not because they were earned by the plaintiffs but under rules and regulations of the police department which provided for the payment of their wages to police officers who are absent from duty because of sickness or injury. Under those rules and regulations the amount payable to a police officer so absent...
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