DAVIS, PRUNER & HOWELL v. WOODS, 180 S.W. 100

PHILLIPS, C. J. The suit of the plaintiff in the trial court, R. M. Woods, was for damages on account of an injury to his arm, resulting in its amputation below the elbow, sustained while working in a gin owned and operated by the defendants, Davis, Pruner & Howell, the present plaintiffs in error. He recovered a judgment in the sum of $2,000. The writ of error was granted on account of the charge of the court in its submission of the measure of damages, and that is the only question we find it necessary to discuss. The injury occurred on December 12, 1908. The trial was had nearly two years later.

The amputation of the plaintiff’s arm was the result of the injury.

His testimony was that before the injury he could earn from $2 | to $3 a day in the oil field at Petrolia, hut | since he had just barely been making a living ; that prior to the injury Ms health was good and his weight 140 pounds, hut his physical condition had not been as good since, and his weight at the time of the trial was 125 pounds, and that he could not do anything that he was able to do before losing Ms hand; that the first work he did after being injured was in a hotel in Petrolia, about the 1st of February, 1909; that he worked there about a month, after which he did nothing until August or September; that he was a partner in a bathhouse there until the 1st of March, 1910, when he went into the fruit and vegetable business, in which he was engaged at the time of the trial.

He further testified to the pain he had suffered, and that the arm still hurt him, going, sometimes, as long as three weeks without paining him, and then hurting for two or three days. It is to be gained from bis testimony that before tbe injury he was steadily employed. The charge of the court on the measure of damages reads: “If you find a verdict for the plaintiff, in estimating Ms damages (if any) you may take into consideration the following matters, if they have all been proven, and if they have not all been proven, you may take into consideration such of them as have been proven, if any: “(

a) Such a sum of money, if paid now, as will reasonably compensate plaintiff for any loss of time which he may have sustained in the past and will probably sustain in the future by reason of his diminished capacity, if any, to earn money. “(

b) Such a sum of money, if paid now, as will reasonably compensate plaintiff for any pain of body or mind which he has sustained in the past, if any, by reason of his injuries, if any.” The complaint made of the charge is its submission of prospective loss of time as. an element of damages.

It is urged that the evidence established the plaintiff’s complete recovery from the injury, and that he had since been at work at various times and over an extended- period; wherefore no inference that he might lose any time after the trial was warranted; and accordingly, in respect to any loss of future earnings, only damages resulting from impaired capacity to labor as a consequence of the injury were recoverable.

We are not prepared to say that such was the force of the evidence, precluding all reasonable probability of there being no time in the future when the plaintiff would be unable to work on account of his injury, as distinguished from simply being impaired in Ms capacity to work. There was no direct testimony that he had fully recovered from the injury and its effects, and such is not necessarily inferable from the positive evidence. He testified that at the time of the trial Ms arm still hurt him for days at a time.

From his statement concerning his general physical condition before and since the injury, if credited, the belief would have been warranted that he still suffered in his general health from its effects.

With this in the proof, though he testified to having, for a month’s time, done some work, beginning in February after the accident in the preceding December, but then going until August or September without doing anything, as it might reasonably be concluded, because either unable to work, or unable to obtain such work as a man in his condition could perform, it can hardly be said that his complete recovery from the injury at the time of the trial was conclusively shown, and that there could be no warrant for a finding that he would lose any time in the future on account of it.

But, if it be granted that his complete recovery was shown, the charge was not erroneous. Neither prospective loss of time, nor impaired capacity for labor was submitted to the jury as a distinct element of the recoverable damages, though, from the nature of the plaintiff’s injury, there could be no question of his capacity for labor being permanently impaired. In these particulars the charge permitted the allowance of compensation only ‘for such loss of time as the plaintiff would probably sustain in the future by reason of his diminished capacity, if any, to earn money.’.

In Houston City Street Railway Company v. Reichart, 87 Tex. 539, 29 S. W. 1940, it was said that, in a ease where the plaintiff had at the time of the trial recovered entirely from his injury, loss of time which might subsequently occur “would result from diminished capacity for labor,” and ought to be included in it. That was a case where the plaintiff had at the time of the trial fully recovered from the injury, and in which the charge on the measure of damages submitted both the element of loss of time in the future and that of impaired capacity.

Assuming that the evidence established here the complete recovery of the plaintiff from his injury, and that the element of loss of time occurring after the trial would have been included in that of impaired capacity had the latter been distinctly submitted, was it erroneous to charge, with impaired capacity not submitted, that allowance might be made, not unquali-fiedly for such loss of time as the plaintiff would probably sustain in the future, but for such loss of time as he would probably SO sustain “by reason of his diminished capacity to earn money?” It would seem not, if in such a case, as held in Street Railway Company v.

Reichart, the time he would probably so lose “would result from diminished capacity to labor.” That opinion recognizes, in other words, that in such a case time may be lost in the future, not independently of impaired capacity for labor, but as the result of it, in the sense that the reduction of the value of a man’s working time by lessening his earning power, thereby denying him the full benefit of it, works a loss of a portion of such time.

Considered in this light, the charge here was not technically erroneous; for, as already noted, it limited any recovery for loss of time in the future to such loss only as might occur by reason of the impairment of earning capacity. It was favorable to the plaintiffs in error in its effect, rather than prejudicial to them. In cases where there is no probability that time will be lost in the future in the ordinary sense, but there will be diminished capacity for labor, it is preferable that impaired capacity, as an element of the damages, be submitted independently and without qualification.

In such instances' it is entitled to be considered as an independent element of the damages, and will include any possible loss of time in the future that it could be reckoned might result from impairment of earning capacity, rendering unnecessary any reference to future loss of time. The judgments of the district court and the Court of Civil Appeals are affirmed. &wkey;jFor other eases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes