SECTION 7301. Measure in case of person 7306. Whether impairment of earn- SECTION 7307. Extent of loss must be shown. 7308. Evidence to show whether capacity for labor has been impaired. 7309. Mortality tables as evidence to show duration of life of injured person. 7310. Damages recoverable by parties entitled thereto-Children-Married women. § 7294. Necessary that Injury should be Permanent.-Where the injury is permanent in its nature and effects, and the plaintiff is disabled by it from pursuing his usual vocation and is injured in his capacity to earn a livelihood, the inquiry is very similar to that where the injury is of a temporary character and damages for loss of time is sought. The jury, looking to all the circumstances of the case,-his former occupation and its nature, the money or other benefit derived therefrom and the extent to which the capacity to follow that or any other calling for which he is fitted is impaired by the wrong of the defendant, must assess his damages at a sum which will compensate him for the injury suffered.' 1 Strattner v. Wilmington City Elec. Co., 3 Pen. (Del.) 245; s. c. 50 Atl. Rep. 57; McAllister v. People's R. Co., Del.; s. c. 54 Atl. Rep. 743; Karczewski v. Wilmington City R. Co., Del. —; s. c. 54 Atl. Rep. 746; Delaware &c. R. Co. v. Devore, 114 Fed. Rep. 155; s. c. 52 C. C. A. 77; Southern Pac. Co. v. Hall, 100 Fed. Rep. 760; s. c. 41 C. C. A. 50; Chicago &c. R. Co. v. Krempel, 103 Ill. App. 1; Chicago v. Langlass, 66 Ill. 361; Chicago v. Jones, 66 Ill. 349; Chicago v. Elzeman, 71 Ill. 132; Chicago City R. Co. v. Fennimore, 199 Ill. 9; s. c. 64 N. E. Rep. 985; aff'g s. c. 99 Ill. App. 174; Peoria Bridge Assn. v. Loomis, 20 Ill. 236; Chicago &c. R. Co. v. Wilson, 63 Ill. 167; Louisville &c. R. Co. v. Falvey, 104 Ind. 409; s. c. 1 West. Rep. 868; 2 West. Rep. 686; Wabash &c. R. Co. v. Morgan, 132 Ind. 430; s. c. 31 N. E. Rep. 661; Indianapolis v. Gaston, 58 Ind. 225; Collins v. Council Bluffs, 32 Iowa 325; Belair v. Chicago &c. R. Co., 43 Iowa 662; Morris v. Chicago &c. R. Co., 45 Iowa 29; Wimber v. Iowa Cent. R. Co., 114 Iowa 551; s. c. 87 But it is to be borne in mind N. W. Rep. 505; Chesapeake &c. R. that impairment of earning capacity is to be considered as an element of damages only where the injury is of a permanent nature. The proof of the permanency of the injury must be clear. Thus, it has been held that mere proof that the plaintiff is suffering from the shock from a fall is not enough to authorize submission to the jury of the question whether the injuries are permanent. It should be remembered that the question of whether or not the earning capacity of the plaintiff is permanently impaired is a question of fact for the jury, and an assumption by the court, in instructing the jury, of the permanent nature of the injury, is error.* 3 $7295. Amount of Such Damages Difficult of Ascertainment.In the nature of things, impairment of capacity to labor as an element of damages cannot be proved with exactness, and must in a large degree be left to the sound judgment of the jury in the particular case under instructions to award such fair sum as would in their 1 Dill. (U. S.) 465; s. c. 3 Chic. Leg. N. 41; Wightman v. Providence, 1 Cliff. (U. S.) 524; Phillips v. London &c. R. Co., 5 C. P. Div. 280 (loss sustained by physician through inability to continue lucrative practice). An instruction that, if a passenger was entitled to recover for injuries, he should be allowed such a sum as would actually compensate him for the injury sustained, and if, in consequence thereof, his ability to earn money had been lessened, he should be allowed such a sum as would compensate him for such disability, was not misleading on the ground that compensation for the injury necessarily included damages for his lessened earning capacity: St. Louis &c. R. Co. v. Byers, Tex. Civ. App. -; s. c. 70 S. W. Rep. 558. 'Augusta v. Owens, 111 Ga. 464; S. c. 36 S. E. Rep. 830; Carter v. Nunda, 55 App. Div. (N. Y.) 501; 8. c. 66 N. Y. Supp. 1059. In an action for personal injuries and pain and suffering resulting therefrom, it was not error for the judge, in charging the jury, to omit calling their attention "to the effect of advancing years upon the capacity of plaintiff to labor," when the declaration did not allege that the injuries complained of were permanent, and the action was apparently brought to recover only the damages sustained before the filing of the petition: Florida &c. R. Co. v. Pitts, 112 Ga. 846; s. c. 38 S. E. Rep. 85. In an action for personal injuries, an instruction that if plaintiff's injuries were permanent he was entitled to damages to the extent that they impaired his ability to earn a livelihood, and that, if not permanent, damages should be limited to the extent that the temporary injury impaired such ability, was not objectionable on the ground that it told the jury that a temporary impairment constituted a permanent injury: Pueblo v. Timbers, 31 Colo. 215; s. c. 72 Pac. Rep. 1059. Where a boy who, when eleven years old, was wounded in one leg by defendant's negligence, at the age of fifteen was in the habit of walking downtown two miles daily. and said the leg still hurt him if he walked far, but there was no evidence that the injury would be permanent, or that he would be unable to work when twenty-one, it was error to instruct the jury that they could allow damages for any loss of time and inability to work after he attained the age of twenty-one years, if any, which they believed he would sustain on account of such injuries: Illinois Iron &c. Co. v. Weber, 196 Ill. 526; s. c. 63 N. E. Rep. 1008; rever'g s. c. 89 Ill. App. 368. 3 Carter v. Nunda, 55 App. Div. (N. Y.) 501; s. c. 66 N. Y. Supp. 1059. 4 Colby v. Wiscasset, 61 Me. 304. Morris v. Chicago &c. R. Co., 45 Iowa 29; Dunn v. Northeast Electric judgment compensate for the lessened or destroyed ability to earn money, making due allowance for the contingencies and uncertainties that inhere in such matters. 7296. Fact of Present Payment to be Considered.-The fact that the amount of damages given for the injury is received all at once, free from the contingencies of ordinary wages, should be considered by the jury in determining the amount to be allowed for the impaired capacity to labor. Thus, in Michigan, an instruction, in an action for personal injuries of a permanent character, that damages are to be computed by determining the plaintiff's age, expectancy, and earning capacity at the time of the accident, and his occupation and the wages he has earned for some time prior thereto, from which his future earning capacity may be estimated, and that the value of his future earning capacity shall be computed by discounting his probable earnings for each subsequent year, and that he is entitled to damages to compensate him for past pain and suffering, though it might have been fuller in detail, was held sufficient in the absence of a suggestion to the trial judge of any deficiency. In some States the amount of the damages for probable future loss from the impaired earning capacity is determined on the principle on which annuities are computed or purchased; but it was held in England that the amount of an annuity for life which would replace the annual salary of the plaintiff was no proper measure of his damages, although he was incapacitated entirely from labor; for non constat that the plaintiff would have retained his salary until death.10 8 § 7297. Rule in Case of Convict Injured During Confinement in Penitentiary. A convict injured during his imprisonment cannot R. Co., 81 Mo. App. 42; Rosenkranz v. Lindell R. Co., 108 Mo. 9; s. c. 18 S. W. Rep. 890; De la Vergna &c. Mach. Co. v. Stahl, 24 Tex. Civ. App. 471; s. c. 60 S. W. Rep. 319. Denver v. Sherret, 88 Fed. Rep. 226; s. c. 31 C. C. A. 499; Richmond &c. R. Co. v. Allison, 86 Ga. 145; s. c. 12 S. E. Rep. 352; 11 L. R. A. 43. 7 Grant v. Union Pac. R. Co., 45 Fed. Rep. 673. A charge with reference to a mortality table in an action for personal injuries, which in substance instructs the jury to ascertain the yearly amount of the plaintiff's diminished earning capac ity, and multiply it by the number of years he may be expected to live, and reduce the gross amount to present value, is not erroneous: Columbus v. Ogletree, 102 Ga. 293; s. c. 29 S. E. Rep. 749. In Texas, however, it is held, that a jury may not be instructed to limit the recovery to such sum as would represent the present worth of plaintiff's future earnings, calculated on a basis of six per cent. per annum: Galveston &c. R. Co. v. Kief (Tex. Civ. App.), 58 S. W. Rep. 625; Galveston &c. R. Co. v. Dehnisch (Tex. Civ. App.), 57 S. W. Rep. 64. Lauer v. Palms, 129 Mich. 671; s. c. 9 Det. Leg. N. 61; 89 N. W. Rep. 694. "Copson v. New York &c. R. Co., 171 Mass. 233; s. c. 50 N. E. Rep. 613; Rooney v. New York &c. R. Co., 173 Mass. 222; s. c. 53 N. E. Rep. 435. But see Ramsey v. National Contracting Co., 49 App. Div. (N. Y.) 11; s. c. 63 N. Y. Supp. 286. 10 Rapson v. Cubitt, Car. & M. 64. recover damages for his inability to labor during the term of his imprisonment, as any wages he might earn during that time belong to the State.11 § 7298. Comparison of Wages Before and After Injury as Indicating Extent of Impairment.-In the case of persons of fixed occupations, the extent of impairment is measured by the difference in wages before and after the injury.12 This rule, however, would operate unfairly and be impracticable in a case where the injured person was not employed at the time the injury was inflicted,13 or, if employed, "Dalheim v. Lemon, 45 Fed. Rep. Southern R. Co. v. Howell, 135 V. Div. (N. Y.) 557; s. c. 79 N. Y. Supp. 922. In showing diminution in plaintiff's earning capacity as a pattern maker, because of his injury, evidence of the wages pattern makers customarily receive for the best paying kind of work in that trade, and that plaintiff had previously been able and accustomed to do such work, but could no longer, is admissible: Finken v. Elm City Brass Co., 73 Conn. 423; s. c. 47 Atl. Rep. 670. 13 In an action by a married woman for personal injuries, plaintiff may recover for any impairment of her power to earn money, though there is no proof that she had ever earned any money: Louisville &c. R. Co. v. Dick, Ky.; s. c. 78 S. W. Rep. 914; 25 Ky. L. Rep. 1831. Where the evidence in an action for injuries to a passenger showed that the plaintiff was seventy-five years old, and up to the time of the injury had been active and in good health, and engaged in business of his own, which was somewhat extensive and diversified, and that he had held positions of trust in several financial and other corporations, which capacity to transact business was seriously impaired, an instruction as to compensation for the value of his time during the period of disability and for the impairment of his ability to make money was justified, and was properly given, though there was no evidence that he was actually earning anything at the time of the injury: Storrs v. Los Angeles Traction Co., 134 Cal. 91; s. c. 66 Pac. Rep. 72. Diminished capacity to perform manual labor after majority as distinguished from loss of earning power by any labor, manual or otherwise. may properly be considered by the jury in determining the 17 was not engaged in a settled occupation.1 In the former case it is proper to consider the impairment with reference to the character of the work in which the person was last engaged, if not too remote.1 So, it has been held that evidence was competent to show the wages open to a person in a business he understood and which he could resume but for his injuries, although he was not engaged in it and did not claim to intend to return to it.16 Where the injured person at the time of receiving the injury has not entered upon any settled occupation, it has been held that the jury may consider the aptitude of the injured person for work of a particular character, and that it is not necessary that the person inflicting the injury should be cognizant of this particular capacity.18 Thus, the fact that the person when injured was engaged as a section hand and earning the wages paid to persons so employed, will not prevent his pleading and proving that he was skilled in another trade and capable of earning more at that trade.19 So, an instruction that the jury may consider the extent to which plaintiff's earning power as a laboring man will be impaired by his injuries has been held erroneous as limiting his future earning power to manual labor.20 The impairment may be considered as the impairment of capacity for manual labor where the education of the injured person is insufficient to qualify him for any other vocation,21 and proof of the wages earned in that locality by people so employed is relevant on this question.2 § 7299. Recovery not Defeated by Receiving Higher Wages after Injury. Where the injuries inflicted actually impair capacity for labor the injured person will not be deprived of his right to recover under this head by the fact that he receives equal,23 or even higher damages to be awarded for a personal injury to a boy who has adopted no particular calling or trade for his lifework: Fort Worth &c. R. Co. v. Robertson (Tex.), 14 L. R. A. 781; s. c. 16 S. W. Rep. 1093. 1 Galveston &c. R. Co. v. Appel, Tex. Civ. App. -; s. c. 77 S. W. Rep. 635. 15 In an action for injuries, it was error to permit plaintiff to testify as to the amount he had earned in an employment which he had abandoned some five years before the injury: West Chicago &c. R. Co. v. Maday, 188 Ill. 308; s. c. 58 N. E. Rep. 933; aff'g s. c. 88 Ill. App. 49. 16 Peterson v. Seattle Traction Co., 23 Wash. 615; s. c. 63 Pac. Rep. 539; 65 Pac. Rep. 543. "Missouri &c. R. Co. v. St. Clair, 21 Tex. Civ. App. 345; s. c. 51 S. W. Rep. 666. But see Macon v. Paducah St. R. Co., 110 Ky. 680; s. c. 23 Ky. L. Rep. 46; 62 S. W. Rep. 496. 18 Chicago &c. R. Co. v. Long (Tex. Civ. App.), 65 S. W. Rep. 882. 19 Chicago &c. R. Co. v. Long, 26 Tex. Civ. App. 601; s. c. 65 S. W. Rep. 882. 20 Trott v. Chicago &c. R. Co., 115 Iowa 80; s. c. 86 N. W. Rep. 33; 87 N. W. Rep. 722. 21 San Antonio &c. R. Co. v. Skidmore, 27 Tex. Civ. App. 329; s. c. 65 S. W. Rep. 215. 22 Jeffries v. Seaboard &c. R. Co., 129 N. C. 236; s. c. 39 S. E. Rep. 836. Sacramento Electric 20 Clare V. |