Wilson v. Sorge
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Wilson v. Sorge
Opinion of the Court
This is an action for personal injuries arising out of a collision between plaintiff’s automobile and defendant’s truck. Plaintiff was traveling south on U. S. Highway 65 in Owatonna and intended to turn left .onto North Street. She began signaling with her automatic turn signals about 150 feet from the intersection and, at the same time, began decreasing her speed. She stopped at the entrance to the intersection in order to yield the right-of-way to oncoming traffic. While so stopped she was struck from behind by defendant’s tractor-trailer truck which, prior to the accident, had been traveling behind her at less than the 500 feet prescribed by M. S. A. 169.18, subd. 8(b).
At the close of plaintiff’s case, defendant introduced some medical testimony and then rested. Plaintiff’s motion for a directed verdict on the issue of liability was granted, and only the question of damages was submitted to the jury, which returned a verdict for plaintiff in the sum of $7,800. Defendant appeals from an order of the district court denying his motion for a new trial.
On appeal it is defendant’s position that the trial court committed reversible error (1) by directing a verdict in favor of plaintiff, (2) by admitting in evidence certain medical testimony and a medical report prepared for plaintiff’s attorneys, (3) by permitting plaintiff’s coun
Not every case presents a conflict in the facts which must be resolved by a jury. In the instant case the facts are undisputed and, in fact, defendant presented evidence at all on the issue of liability. He argues instead that solely by virtue of plaintiff’s failure to signal that she was slowing down, she could have been contributorily negligent and that this was
Three objections are raised to the medical evidence in this case. The first relates to allowing Dr. Kenneth G. Henry, plaintiff’s personal
There was no error in permitting Dr. Henry to give his opinion. “ [Questions calling for the opinion of an expert witness must be based upon facts previously testified to by him, or facts testified to by others, or upon an agreed state of facts, or facts assumed hypothetically as true.”
Nor do we think it was reversible error to permit Dr. Henry to testify that he did not alter his opinion after receiving the report of the orthopedic surgeon. In Riley v. Luedloff, 253 Minn. 447, 92 N. W. (2d) 806, we recognized that opinions based on information obtained out of court from third parties other than the patient are hearsay and inadmissible, but that no prejudicial error results from their admission when they pertain to facts which are also corroborated by other competent testimony. In the instant case, in view of the independent testimony both by plaintiff and Dr. Henry, permitting him to testify that he did not alter his opinion after receiving the surgeon’s report was not prejudicial.
The medical report letter to plaintiff’s attorneys was first used by defense counsel in cross-examining Dr. Henry. On redirect examination plaintiff’s counsel attempted to show that opposing counsel had
We find no merit in the claim that plaintiffs counsel made improper and prejudicial comments in his closing argument. Granting a new trial for misconduct of counsel rests almost wholly in the discretion of the trial court which is in a better position to assess its impact upon the jury.
The last assignment of error relates to the trial court’s instruction to the jury that it might include as an element of plaintiff’s damages the loss of or impairment to her future earning capacity. Defendant’s position is that under this court’s. recent opinion in Person v. Sears, Roebuck & Co. 252 Minn. 110, 89 N. W. (2d) 694, it was error to submit this issue to the jury when there was no evidence in the record of the value of plaintiff’s earning capacity. The opinion in the Person case was by a divided court. Although the opinion is a fairly
In Connolly v. Pre-Mixed Concrete Co. 49 Cal. (2d) 483, 489, 319 P. (2d) 343, 346, the court said:
“Loss of earning power is an element of general damages which can be inferred from the nature of the injury, without proof of actual earnings or income either before or after the injury, and damages in this respect are awarded for the loss of ability thereafter to earn money.”
The preceding statement clearly represents the general rule of law which applies in other jurisdictions
“Johnson [the plaintiff] appeared on the witness stand and testified as to his age and the nature of his injuries. He further testified*131 that he was unable to work as before the accident, and that after each work day he suffered from extreme fatigue. This evidence is sufficient to sustain a jury finding of diminished earning power.”
If evidence of prior earnings, even though readily available, is unnecessary in the case of a workingman whose ability and capacity to earn in the future has been impaired, then in cases involving persons who have no previous record of earnings or whose past record would unnecessarily distort their future prospects, such evidence is even less important or necessary. To illustrate, the prior earnings of a retired person could have little, if any, relation to his future earning capacity. The past earnings of a college student from assorted jobs — many of which would be entirely unrelated to his future work — might have no bearing at all upon his earning capacity after graduation. The same is true of the prospective earning capacity of other persons who pursue courses of training or study in preparation for vocations or occupations which differ from the ones in which they are engaged at the time of injury and which are likely to produce greater income.
“* * * [W]e are not primarily concerned with loss of earnings but with loss of power to earn. * * *
“* * * [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. At any given time before such an emergency she might be wholly unable to prove she had produced a dime, though she might be qualified to expertness in some field or other. The lack of ability to ‘carry on’ because of some injury would immediately become a very real loss.
“* * * [T]he capability of a housewife that has been destroyed or impaired by the negligent act of another may not be ignored in*132 assaying the damage, simply because she had not gathered money in some other activity. The measuring of the loss cannot be put off until another day. If she has been incapacitated, the time would never come for her to demonstrate what she could earn; and after all, there is but one trial — and that is now. We are convinced that the matter should be submitted to the jury as a phase of the damage, as difficult of appraisal as it may be.”
We think that the distinction drawn by the Florida court is correct and proper. It is the distinction between a loss of earnings and the impairment of future earning capacity. Loss of earnings is an item of special damages. As such, the loss must be specifically pleaded and proved.
A careful reading of our prior opinions clearly discloses that where evidence of past earnings has been introduced, it has been done to establish a claim for special damages for loss of earnings rather than as proof of general damages occasioned by impairment of earning capacity.
“It was proper to show the wages plaintiff was reasonably certain of receiving from October 13, 1948, to January 1951 as an element for consideration in awarding lost earnings. * * * In addition, plaintiff may recover for loss of future earning capacity, even though presently she is performing only household duties and does not intend to resume gainful employment.”
In the LeMay case we did not hold that plaintiff was required to introduce evidence of past earnings in order to' recover for impairment of future earning capacity, and it appears clear that but for the Person case the plaintiff in the instant case would be entitled to recover for that impairment. In Rodgers v. Boynton, 315 Mass. 279, 281, 52 N. E. (2d) 576, 577, 151 A. L. R. 475, the court said:
“* * * Her ability to work belonged to her; and if her capacity to work was lessened by her injury, then she alone was entitled to recover the value of that part of her capacity to earn of which she was deprived. Her time was her own. She had a right to' work and her earnings belonged to her. * * * She was entitled to have considered in the assessment of her damages her inability, due to the injury, to perform her household duties, just as she would be entitled to have considered any other restriction, due to the injury, of her activities.”
In the Person case plaintiff (252 Minn. 113, 89 N. W. [2d] 696) “prior to the accident and for some time thereafter, operated a room-inghouse,” and there was evidence of her ability to do general housework. By a divided court we held that she might not recover for loss of future earning capacity in the absence of evidence pertaining to the value of her services as a roominghouse operator or a general house-worker. In so holding we are now satisfied that we were in error. The Person case should be and now is expressly overruled.
Affirmed.
This was not a business or residence district as defined by M. S. A. 169.01, subds. 39, 40, and both parties so acknowledged.
§ 169.96.
Cf. Tschida v. Dorle, 235 Minn. 461, 51 N. W. (2d) 561.
See, § 169.19, subds. 5, 7. In Teas v. Minneapolis St. Ry. Co. 244 Minn. 427, 70 N. W. (2d) 358, and Martini v. Johnson, 204 Minn. 556, 284 N. W. 433, cited by appellant, there were fact questions as to whether the signals had been given soon enough. No such question is presented here.
See, §§ 169.14, subd. 3, and 169.20, subd. 2. Conflicting evidence about the suddenness of the stops in Ryan v. Griffin, 241 Minn. 91, 62 N. W. (2d) 504, and Fredhom v. Smith, 193 Minn. 569, 259 N. W. 80, was for the jury. Here again, however, the evidence is clear and the facts are undisputed.
Webb v. Minneapolis St. Ry. Co. 107 Minn. 282, 285, 119 N. W. 955, 956.
Davidson v. St. Paul, M. & M. Ry. Co. 34 Minn. 51, 24 N. W. 324.
Fenton v. Minneapolis St. Ry. Co. 252 Minn. 75, 89 N. W. (2d) 404.
Nelson v. Twin City Motor Bus Co. 239 Minn. 276, 58 N. W. (2d) 561; Harris v. Breezy Point Lodge, Inc. 238 Minn. 322, 56 N. W. (2d) 655.
Cf. Floen v. Sund, 255 Minn. 211, 96 N. W. (2d) 563.
See, Minneapolis-St. Paul Sanitary Dist. v. Fitzpatrick, 201 Minn. 442, 277 N. W. 394, 124 A. L. R. 897.
In addition to the instant case, see Zaikaner v. Small, 256 Minn. 275, 98 N. W. (2d) 247.
See, 45 Va. L. Rev. 288 (recent case comment); and see, 43 Minn. L. Rev. 142.
See, Yates v. Dann (D. Del.) 124 F. Supp. 125, modified on other grounds (3 Cir.) 223 F. (2d) 64, reaffirmed on issue of damages (D. Del.) 167 F. Supp. 174; Florida Greyhound Lines, Inc. v. Jones (Fla.) 60 So. (2d) 396; Rodgers v. Boynton, 315 Mass. 279, 52 N. E. (2d) 576, 151 A. L. R. 475; Rice v. Philadelphia Transp. Co. 394 Pa. 454, 147 A. (2d) 627; Bochar v. J. B. Martin Motors, Inc. 374 Pa. 240, 97 A. (2d) 813; Triangle Cab Co. v. Taylor (Tex. Civ. App.) 190 S. W. (2d) 755, affirmed, 144 Tex. 568, 192 S. W. (2d) 143; Johnson v. Howard, 45 Wash. (2d) 433, 275 P. (2d) 736; Kincannon v. National Ind. Co. 5 Wis. (2d) 231, 92 N. W. (2d) 884.
See, Annotation, 15 A. L. R. (2d) 418.
Rule 9.07 of Rules of Civil Procedure; cf. Dallas Consol. Elec. St. Ry. Co. v. Motwiller, 51 Tex. Civ. App. 432, 112 S. W. 794.
Ahlstrom v. Minneapolis, St. P. & S. S. M. R. Co. 244 Minn. 1, 27, 68 N. W. (2d) 873, 889; and see, Person v. Sears, Roebuck & Co. 252 Minn. 110, 116, 89 N. W. (2d) 694, 698 (dissenting opinion).
See, Fredhom v. Smith, 193 Minn. 569, 259 N. W. 80; Carlson v. Naddy, 181 Minn. 180, 232 N. W. 3; Stenshoel v. G. N. Ry. Co. 142 Minn. 14, 170 N. W. 695; Anderson v. Young, 98 Minn. 355, 108 N. W. 298; Dahlberg v. Minneapolis St. Ry. Co. 32 Minn. 404, 21 N. W. 545.
Concurring Opinion
(concurring specially).
I concur specially in the results. However, I am of the opinion that in cases involving damages for loss or impairment of future earning
Reference
- Full Case Name
- LaVONNE WILSON, a MINOR, BY ARCHIE WILSON, HER GUARDIAN AD LITEM, v. LEONARD SORGE
- Cited By
- 51 cases
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- Published