Opinion
Rehearing Denied Jan. 15, 1974.
Opinion Superseded 317 N.E.2d 177.
Eric A. Frey, Rosenfeld, Wolfes&sFrey, Terre Haute, for defendants-appellants.
Robert L. Wright, Berry, Millers&sWright, Terre Haute, for plaintiff-appellee.
ROBERTSON, Presiding Judge.
This case arises out of an auto collision in which defendant-appellant's (Union Cab) taxi "rear-ended" the auto being driven by plaintiff-appellee (High). Trial was had on the issue of damages only and from the judgment entered on the jury verdict of $24,500 Union Cab brings this appeal.
We are of the opinion that reversible error arises from the trial court giving the following instruction:
"The sole question which you, members of the jury must determine is the extent to which plaintiff was injured as a proximate result of this automobile collision. You 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:
(a) The nature and extent of the injuries.
(b) Whether the injuries are temporary or permanent.
(c) The physical pain and mental suffering experienced and reasonably certain to be experienced in the future as a result of the injuries.
(d) The value of lost time earnings, salaries and loss or impairment of earning capacity.
(e) The reasonable expense of necessary medical care, treatment and services and the reasonable expense of future medical care, treatment and services.
You are to determine whether these elements of damage have been proven by a consideration of the evidence relating to damages. r verdict must be based on that evidence and not on guess or speculation."
Union Cab objected to subparagraphs (d) and (e) on the basis that there was no evidence to warrant the jury assessing damages upon those items. The question resolves itself into the propriety of including the words "loss or impairment of earning capacity" in the foregoing instruction. Union Cab's survey of the testimony germane to the issue is that High only missed two days of work due to the accident; since the accident High's wages increased fifty cents an hour; that High is at the top of his pay grade and has not been denied a raise; High's supervisor indicated that High had no physical limitations; and that High himself testified that he had been able to do his job of light janitorial work since the accident.
High counters by pointing out that the testimony demonstrates that the use of vibrating tools or a lawnmower aggravates the condition caused by the accident; that he cannot do heavy janitorial work; that he can no longer exchange carpenter work with his neighbors and relatives as he had previously done, nor could he take automobile trips.
We believe that the facts and the law, as presented in this appeal, require reversal under the law as announced in the case of Scott v. Nabours (1973), Ind.Ct.App., 296 N.E.2d 438. The pertinent passage, as enunciated by Judge Sharp, holds that:
"Indiana recognizes that a proper element of damage is the impairment of earning capacity which means the impairment of ability to engage in one's vocation as distinguished from loss of earnings. The concept of impaired earning capacity involves more than mere proof of permanent injury and pain. There must be evidence of probative value which relates the injury to an inability to engage in one's vocation. * * * The gist of the concept is the adverse effect on vocation. The basic measure of damages for impairment of lost earning capacity is the difference between the amount which the plaintiff was capable of earning before the injury and the amount which he is capable of earning thereafter.
"If there is no evidence to establish the loss of earning capacity, there can be no recovery on that issue."
The evidence presented by High related to impairment of avocational activities and not to job related activities. Here, as in Scott, supra, the evidentiary "final step" of relating impairment to vocation was absent.
High places reliance upon Grant v. Thomas (1962), 254 Iowa 581, 118 N.W.2d 545, for the proposition that work done on an exchange basis, as opposed to working for cash payment, can be a basis for awarding damages for impairment of earning capacity. Without approving or condemning the proposition we do not believe that Grant, supra, is specifically applicable to the instant case for there the evidence also indicated the plaintiff returned to his same job but "did not do it as well".
There being no need to discuss the other allegations of error, this cause is reversed and remanded for a new trial.
Reversed and remanded.
LOWDERMILK and LYBROOK, JJ., concur.