In Prince v Lott, 369 Mich. 606, 610; 120 N.W.2d 780 (1963), the Court defined loss of earning capacity as "not what plaintiff would have but what he could have earned but for the injury".Summary of this case from Argenta v. Shahan
Calendar No. 23, Docket No. 49,235.
Decided April 5, 1963.
Appeal from Genesee; Parker (Donn D.), J. Submitted January 10, 1963. (Calendar No. 23, Docket No. 49,235.) Decided April 5, 1963.
Case by William Prince, Jr. against James Lott, Neville Donovan, Frank Sarginson, and others, doing business as Flint Bonding Company, for injuries sustained in assault and battery. Verdict and judgment for plaintiff. Defendants appeal. Affirmed.
Earl T. Prosser and Charles R. Cole ( David Gooze, of counsel), for plaintiff.
Joseph H. Delaney and Jerome F. O'Rourke, for defendants.
Defendants appeal from a $15,000 verdict and judgment against them in favor of plaintiff for injuries and damages resulting from his having been beaten by them. Claims of error go largely to the question of damages.
Did the court err in permitting the jury to consider future pain and suffering and future loss of earnings or diminished earning capacity in computing damages? Plaintiff testified that he was pistol-whipped about the face and head; that he bled from the mouth; that he was knocked down, the back of his head striking the floor; that he was "knocked blind" for about 30 minutes; that he was knocked against a wall and again struck on both sides of the head; that after the beating he experienced a terrific, sharp, shooting pain running over the right side of his face, right eye and neck; that his face was swollen and bleeding and several teeth were knocked loose; that he had had pain and been under medical care ever since, till time of trial almost 2 years after the attack; that till time of trial great facial pain and paralysis has resulted whenever he stoops, bends, exercises or does manual labor; that such paralysis sometimes lasts for as long as a week, during which he cannot hold food in the paralyzed side of his face; that every 2 weeks he renews a prescription for codeine, which he constantly takes for pain and that before the beating he had never suffered those pains; that at time of trial he was no longer able to perform labor as he had before the injury. His brothers and sister-in-law gave testimony in confirmation of the above. Plaintiff testified that before injury he had earned as much as $5,000 per year as a carpenter, and that he no longer could do such work.
A medical doctor testified that he examined plaintiff about a month after the injury occurred; that a diagnosis was made of Bell's palsy or paralysis of the right facial nerve; that the condition could have been caused by trauma or localized injury to the nerve; that plaintiff was referred by him to a neurosurgeon who, about half a year after the injury, found a painful area over the left second vertebra; that a greater occipital nerve block operation was performed; that plaintiff was reported by the surgeon to have remained unchanged, with hyperesthesia over the second cervical vertebra distribution and pain on palpation of the greater occipital nerve; that in his opinion plaintiff had a severe psychosomatic syndrome, which can cause real pain and paralysis which would come and go, and that the duration was indefinite.
A psychiatrist testified that he first examined plaintiff about 1-1/2 years after the injury and that plaintiff's symptoms could be the result of trauma and that it could be a permanent condition.
There was evidence tending to detract from plaintiff's claims as to the seriousness and permanence of his injuries and disability, but the above must be considered in determining whether the court erred in permitting the question of future pain and suffering and loss of earning capacity to go to the jury. We think that it sufficed to give rise to a jury question of fact on those questions. Defendants say the proofs do not meet the adequacy test laid down in Brininstool v. Michigan United Railways Co., 157 Mich. 172, 180, and Gilson v. Bronkhorst, 353 Mich. 148, namely, that to entitle plaintiff to recover damages "for apprehended future consequences of an injury, there must be such a degree of probability of such consequences as to amount to reasonable certainty that they will result from the original injury." In the instant case the court expressly instructed the jury that they might allow damages only for future consequences "which it is reasonably certain he will suffer in the future that is the natural and proximate result of the injury". The instruction is as favorable to defendants as they had any right to expect and squares with the cited cases. Plaintiff's testimony as to his physical condition and suffering during the 2 years leading up to trial and then still continuing, and the medical testimony that his condition could be permanent were sufficient to permit the jury, under the proper instructions which were given, to find for plaintiff on those elements of damage. See further, in support of this view, McDuffie v. Root, 300 Mich. 286, Toman v. Checker Cab Co., 306 Mich. 87 (14 NCCA NS 202), and King v. Neller, 228 Mich. 15.
Defendants urge that the court erred in instructions on the matter of loss of future earnings. They point out that at time of trial plaintiff was serving a sentence in prison and had done so on previous occasions upon convictions of criminal offenses. So defendants say that, although they had made no such request, the court, when instructing in this connection about the permissible use of mortality tables, should have charged the jury also to take into account plaintiff's record of past imprisonment, propensity for committing crimes, lack of desire to earn, and possible inability to earn in the future if or while imprisoned. Defendants requested no such charge.
"In action of assumpsit which consisted of numerous disputed claims by one party against the other, failure of the trial court to charge the jury with particularity as to damages held, not error where there were no requests to charge proffered on the question of the measure of damages." Stevens v. Mikulich, 290 Mich. 345 (syllabus 2).
Defendants would not have been entitled to an instruction of the kind suggested had they requested it because the factor to be considered in determining such damages is not what plaintiff would have but what he could have earned but for the injury. It is the loss of earning capacity for which damages are to be awarded. Norris v. Elmdale Elevator Co., 216 Mich. 548; Miller v. Pillow, 337 Mich. 262; Harris v. Wiener, 362 Mich. 656.
Defendants also complain that they were unduly restrained by the court from making objections to statements of plaintiff's counsel made during argument, that the court erred in permitting plaintiff's counsel to make improper argument, and that the court's conduct of the trial constituted a denial of a fair trial to defendants. Having to do only with the particular facts and circumstances then existing in the case, no precedential purpose would be served nor would any benefit accrue to bench, bar or the public from recounting the exchanges between counsel and between them and the court and the rulings made in this connection. We have examined those matters of which complaint is made and conclude that no prejudicial error occurred, that defendants received a fair trial and that no miscarriage of justice resulted.
Affirmed. Costs to plaintiff.
CARR, C.J., and KELLY, BLACK, KAVANAGH, SOURIS, and O'HARA, JJ., concurred.
OTIS M. SMITH, J., did not sit.