since it is only in the award of exemplary damages that the instruction must be permissive merely.58 Likewise, an instruction referring to actual and exemplary damages as follows: "Of course, you will consider them separately in the jury room. But when you report your verdict, if you find a verdict for the plaintiff, you will not undertake to divide them, unless requested, but will simply put the two amounts together, if you do find both amounts, and announce one aggregate sum through your foreman," has been held merely to indicate the court's notion of the manner in which the jury would proceed, and not erroneous as making it mandatory on them to proceed in that manner. On the question of the amount recoverable, the jury should be charged that a recovery may not exceed the amount prayed for in the complaint; and this amount should be stated and the jury not referred to the declaration to ascertain it.61 SECTION 59 ARTICLE II. LOSS OF TIME AND WAGES. 7286. Loss of time a proper element of damages. 7287. Amount depends on nature of employment or business. 7288. Employment of substitute. SECTION 7289. Board not recoverable. 7290. Married woman. 7291. Averment and proof of loss of time and wages. § 7286. Loss of Time a Proper Element of Damages. If the plaintiff is, in consequence of the injury, disabled from attending to his ordinary business and occupation, he is entitled to be compensated in damages for the time lost.1 The amount of the recovery may be left 58 1 5 Salem v. Webster, 192 Ill. 369; s. c. 61 N. E. Rep. 323; aff'g s. c. 95 Ill. App. 120. Bowden v. Voorheis, Mich. -; s. c. 98 N. W. Rep. 406; 10 Det. Leg. N. 908. Missouri &c. R. Co. v. Pawkett, 28 Tex. Civ. App. 583; s. c. 68 S. W. Rep. 323; Alabama &c. R. Co. V. Burgess, 119 Ala. 555; s. c. 25 South. Rep. 251; Stoll v. Daly Min. Co., 19 Utah 271; s. c. 57 Pac. Rep. 295. In an action against a railway company for injuries, an instruction that, if the jury found for plaintiff, their verdict should not exceed $3,000, the amount sued for, was not erroneous as giving undue prominence to the amount sued for: Fort Worth &c. R. Co. v. Partin, Tex. Civ. App.; s. c. 76 S. W. Rep. 236. North Chicago St. R. Co. v. Burgess, 94 Ill. App. 337. 1 Adams v. Wilmington &c. Electric R. Co., 3 Pen. (Del.) 512; s. c. 52 Atl. Rep. 264; Boyd v. Blumenthal, 3 Pen. (Del.) 564; s. c. 52 Atl. Rep. 330; Davidson v. Southern Pac. R. Co., 44 Fed. Rep. 476; Swensen v. Bender, 114 Fed. Rep. 1; s. c. 51 C. C. A. 627; West Chicago St. R. Co. v. Foster, 175 Ill. 396; s. c. 51 N. E. Rep. 690; aff'g s. c. 74 Ill. App. 414; Larmon v. District of Columbia, 5 Mackey (D. C.) 330; s. c. 5 Cent. Rep. 447; Chicago v. O'Brennan, 65 Ill. 160; Chicago v. Jones, 66 Ill. 349; Chicago &c. R. Co. v. Wilson, 63 Ill. 168; Peoria Bridge Assn. v. Loomis, 20 Ill. 236; Indianapolis v. Gaston, 58 Ind. 225; McKinley v. Chicago &c. R. Co., 44 Iowa 314; Morris v. Chicago &c. R. Co., 45 Iowa 29; Sachra v. Manilla, 120 Iowa 562; s. c. 95 N. W. Rep. 198; Paquin v. St. Louis &c. R. Co., 90 Mo. App. 118; Posch v. Southern to the sound discretion of the jury under the evidence, where the nature of the work of the injured person renders it impracticable accurately to measure the value of his time while so incapacitated by any general scale of remuneration. Damages for loss of time have been held properly allowed for failure to deliver without delay a death message notifying the person to whom the message is addressed to meet the sender and have a grave prepared, as this injury may be reasonably contemplated by the parties at the time of accepting the message for transmission.3 4 § 7287. Amount Depends on Nature of Employment or Business.— The amount of the damages must, of course, depend upon the calling in which the plaintiff was engaged, the amount of money which he was able to earn, the steadiness, regularity, etc., of his employment; and evidence of these facts is pertinent and admissible. And testimony to the effect that the plaintiff's time was not spent in a useful occupation, but squandered in pleasure-secking and dissipation, is admissible in mitigation of damages. But the fact that the injured person was engaged in so precarious an employment as fishing for a living and lost time at this employment in consequence of his injuries, will not prevent a recovery on the ground that the business is of a speculative character. Where the sufferer from a negligent act was, at the time of the accident, in business for himself, it has been held proper to show the character and magnitude of his business, as an element tending to Electric R. Co., 76 Mo. App. 601; Grant v. Brooklyn, 41 Barb. (N. Y.) 381; Masterton v. Mount Vernon, 58 N. Y. 391; Rockwell v. Third Avenue R. Co., 64 Barb. (N. Y.) 438; s. c. 53 N. Y. 625; Sheehan v. Edgar, 58 N. Y. 631; Walker v. Erie R. Co., 63 Barb. (N. Y.) 260; Glenn v. Philadelphia &c. Traction Co., 206 Pa. St. 135; s. c. 55 Atl. Rep. 860; Pennsylvania R. Co. v. Books, 57 Pa. St. 339; Pennsylvania &c. Canal Co. v. Graham, 63 Pa. St. 290; Gulf &c. R. Co. v. Bell, 24 Tex. Civ. App. 579; s. c. 58 S. W. Rep. 614; Goodno v. Oshkosh, 28 Wis. 300; Ripon v. Bittel, 30 Wis. 614; Lombard v. Chicago, 4 Biss. (U. S.) 460; Beardsley v. Swann, 4 McLean (U. S.) 333. There need not necessarily be evidence of the value of the time lost, in order to recover therefor: Ward v. Vanderbilt, 4 Abb. App. Dec. (N. Y.) 521. 3 Western Union Tel. Co. v. Ragland (Tex. Civ. App.), 61 S. W. Rep. 421. * Kessel v. Butler, 53 N. Y. 612; Ohio &c. R. Co. v. Hecht, 115 Ind. 443; s. c. 15 West. Rep. 122; 17 N. E. Rep. 297; Masterton v. Mount Vernon, 58 N. Y. 391; Rockwell v. Third Avenue R. Co., 64 Barb. (N. Y.) 438; s. c. aff'd, 53 N. Y. 625; Hanover R. Co. v. Coyle, 55 Pa. St. 396; Nebraska City v. Campbell, 2 Black (U. S.) 590; Alabama &c. R. Co. v. Frazier, 93 Ala. 45; s. c. 9 South. Rep. 303. But he may not establish this fact by proof of amount of salary in an office the term of which had expired: Chicago &c. R. Co. v. Myers, 80 Fed. Rep. 361; s. c. 49 U. S. App. 279. Baltimore &c. R. Co. v. Boteler, 38 Md. 568. Lund v. Tyler, 115 Iowa 236; s.. c. 88 N. W. Rep. 333. prove the amount and grade of services the plaintiff was able to render previous to the accident." 7288. Employment of Substitute.-The expenses necessarily incurred by an injured person in procuring competent help in his business to do work which he would have performed himself had he not been disabled, is regarded a proper subject of allowance if properly pleaded, but evidence of the employment of a substitute is not competent where the occupation of the injured person is not stated, and it is not alleged in the complaint that he suffered pecuniary damages on account of loss of time or earnings." Wages of a substitute were refused in a case where the injured person was confined to his house for fourteen weeks after the accident, and within five weeks after sustaining the injury he was able to attend to the most important part of his business, which was conducted in an adjoining building without going out of doors. The extra man was employed for four days each week during the period of a year or longer, but it was admitted that during this time the plaintiff was able, notwithstanding his injuries, to engage actively in the business of his firm, though not devoting as much attention as he previously had done to his outside work.10 $7289. Board not Recoverable.-The plaintiff cannot, however, recover as part of his damages the sum paid for his board during the time that he was disabled; since that is an item of expense which he would have incurred in any event.1 'Heer v. Warren-Scharf Asphalt Pav. Co., 118 Wis. 57; s. c. 94 N. W. Rep. 789. In an action by a contractor for personal injuries, evidence of a contract for building a brewery was admissible to show the extent of his business: Schwartz v. North Jersey St. R. Co., 66 N. J. L. 437; s. c. 49 Atl. Rep. 676. The Joseph Stickney, 31 Fed. Rep. 156; North Chicago St. R. Co. v. Zeiger, 78 Ill. App. 463; Sachra v. Manilla, 120 Iowa 562; s. c. 95 N. W. Rep. 198; Williams v. Edmunds, 75 Mich. 92; s. c. 42 N. W. Rep. 534; Grady v. St. Louis Transit Co., 102 Mo. App. 212; s. c. 76 S. W. Rep. 673; Gumb v. Twenty-Third St. R. Co., 9 N. Y. Supp. 316; s. c. 30 N. Y. St. Rep. 253; Willis v. Second Ave. Traction Co., 189 Pa. St. 430; S. c. 42 Atl. Rep. 1; International &c. R. Co. v. Zapp (Tex. Civ. App.), 49 S. W. Rep. 673. An official sten 11 ographer, suing to recover for personal injuries, may testify to his employment of typewriters and as to the amount he was paying them per month; over objection that there was in his petition no allegation of damages by reason of the employment of typewriters, since such proof of the employment of help tended to show a decreased power to labor, and the cost of the help was relevant as to the extent of the decrease: Macon &c. St. R. Co. v. Barnes, 113 Ga. 212; s. c. 38 S. E. Rep. 756. "Paquin v. St. Louis &c. R. Co., 90 Mo. App. 118. 10 Schreck v. Jersey City &c. R. N. J. L.; s. c. 55 Atl. Rep. Co., 11 Graeber v. Derwin, 43 Cal. 495; Vedder v. Delaney, 122 Iowa 583; s. c. 98 N. W. Rep. 373. 12 § 7290. Married Woman.-While the marriage relation exists, the husband is entitled to the services of his wife, and she cannot recover for loss of time unless she is engaged in business on her own account,12 or is living apart from her husband and supporting herself by her own labor.13 She cannot recover for loss of earnings where she was working for her husband at the time of receiving the injuries under a contract for wages, as such a contract is not enforceable; and the damages for the loss of such services belong to her husband.14 These rules are without application to the case of a feme sole, sustaining injuries through the negligence of another. Hence a woman suing for personal injuries may show that she is a widow, as, being a femè sole, she may recover for her own services.15 § 7291. Averment and Proof of Loss of Time and Wages.—As we have already seen, damages for loss of time and wages are regarded as general and not special damages, and hence are included in the general allegation of a personal injury of such a character that a loss of time and wages would naturally result, and hence a special demand therefor is unnecessary.16 A complaint will be regarded as sufficient within the rules where it alleges disability to perform the duties of the particular employment," or that employment was lost through the in 12 Hunt V. Hoyt, 20 Ill. 544; Nichols v. Dubuque &c. R. Co., 68 Iowa 732; Thomas v. Brooklyn, 58 Iowa 438. 13 Brake v. Kansas City, 100 Mo. App. 611; s. c. 75 S. W. Rep. 191. 14 Blaechinska v. Howard Mission, 130 N. Y. 497; s. c. 15 L. R. A. 215; 42 N. Y. St. Rep. 378; 45 Alb. L. J. 255; 29 N. E. Rep. 755. 15 Bradley V. Spickardsville, 90 Mo. App. 416. 16 See ante, § 7159. See also, Mabrey v. Cape Girardeau &c. Road Co., 92 Mo App. 596; s. c. 69 S. W. Rep. 394. 17 Russell v. Metropolitan St. R. Co., 35 Misc. (N. Y.) 293; s. c. 71 N. Y. Supp. 765; Brake v. Kansas City, 100 Mo. App. 611; s. c. 75 S. W. Rep. 191. An electric lineman's petition for damages from injuries alleged that he had become lame and crippled, and had lost the use of his right arm and hand, and was incapacitated from pursuing his occupation; that he was a competent lineman, and was fitting himself for advancement as an electrician; that he had been strong and healthy, and earning on an average $2.25 a day, and, had he not been injured, would probably have been able to earn jury;18 but a complaint averring a personal injury in general terms will not be sufficient to allow the admission of evidence to show a special engagement and loss consequent thereupon, as such damages are clearly special damages within the rule.19 The recovery for damages of this character can in no case exceed the amount demanded. 20 The extent and amount of loss should be clearly established by competent evidence,21 and the recovery will be set aside where there is a total lack of evidence as to the amount of the loss from this source. 22 Thus, where, in an action for negligent injuries, there was no evidence as to the plaintiff's earnings from his business as a commission merchant and importer, and no proof of facts on which to base a finding that his inability to attend to his business had caused him any loss, it was held reversible error to instruct the jury that, in assessing the plaintiff's damages, they were to take into consideration how long he was incapacitated from attending to his business, or any other business a man of intelligence and experience could probably devote himself to, and what were the probable physical earnings of a man in his busi ness 23 SECTION ARTICLE III. IMPAIRED CAPACITY FOR LABOR, 7294. Necessary that injury should be permanent. 7295. Amount of such damages difficult of ascertainment. 7296. Fact of present payment to be considered. 7297. Rule in case of convict injured during confinement in penitentiary. "North Chicago St. R. Co. v. Barber, 77 Ill. App. 257. 20 Louisville &c. R. Co. v. Watkins, -Ky. - s. c. 71 S. W. Rep. 882; 24 Ky. L. Rep. 1464. "Stoetzle v. Sweringen, 96 Mo. App. 592; s. c. 70 S. W. Rep. 911; Wynne v. Atlantic Ave. R. Co., 156 N. Y. 702; s. c. 51 N. E. Rep. 1094; aff'g s. c. 14 Misc. (N. Y.) 394; 35 N. Y. Supp. 1034; Gulf &c. R. Co. v. Robinson, Tex. Civ. App. ; s. c. 72 S. W. Rep. 70; Interna SECTION 7298. Comparison of wages before and after injury as indicating extent of impairment. 7299. Recovery not defeated by receiving higher wages after injury. 7300. Partial incapacity under English Workman's Compensation Act. tional &c. R. Co. v. Simcock, 81 Tex. 503; s. c. 17 S. W. Rep. 47. 22 Thus, in an action for personal injuries by a section man working for stipulated wages, an instruction authorizing the jury to find substantial damages, not to exceed $300, for loss of time, was held erroneous, in the absence of any evidence as to the value of his time, the wages of such men not being so uniform or so generally known as to dispense with the necessity of such evidence: Haworth v. Kansas City Southern R. Co., 94 Mo. App. 215; s. c. 68 S. W. Rep. 111. 23 Metz v. Metropolitan St. R. Co., 82 App. Div. (N. Y.) 168; s. c. 81 N. Y. Supp. 725. |