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Russell v. City of Wildwood

decided: July 7, 1970.

EDWARD J. RUSSELL
v.
CITY OF WILDWOOD, APPELLANT



Hastie, Chief Judge, and Maris and Adams,*fn* Circuit Judges.

Author: Maris

Opinion OF THE COURT

(Filed July 7, 1970)

MARIS, Circuit Judge.

The defendant, the City of Wildwood, New Jersey, appeals from a judgment entered in the District Court for the District of New Jersey on a verdict returned by a jury in the amount of $250,000.00 in an action brought for damages for personal injuries arising out of an accident which occurred on the beach in Wildwood on August 14, 1966. No attack is here made on the jury's finding that defendant's negligence was the proximate cause of the accident. The defendant seeks a new trial only on the issue of damages, contending that it was substantially prejudiced by two errors committed at the trial.

The first contention is that it was error for the trial judge, under the evidence, to permit the jury to determine whether the Wildwood accident aggravated a preexisting condition of bowel and urinary incontinence. The plaintiff was injured in the early morning of August 14, 1966 when a trash truck operated by the defendant's employees rode over the plaintiff while he was sleeping on the beach. At the trial the evidence showed that he suffered a fracture of the right ilium, a comminuted fracture of the left clavicle with displacement, a fracture of the sternum, fractures of the left 5th, 6th, 7th, 8th and 9th ribs, a fractured left second costosternal junction, a contusion of the bladder, a mild partial sacroiliac deformity and a partial atelectasis of the lung. The plaintiff claimed that he was permanently disabled from pursuing his former employment as a line installer at Western Electric Company due to pain and weakness resulting from the multiple injuries and because of atrophy of his right leg and bowel and urinary incontinence, the latter causing emotional as well as physical disability in his everyday activities. The defendant, inter alia, denied causation of the bowel and urinary symptoms, claiming that if these conditions existed they were directly attributable to an automobile accident in October 1964 in which the plaintiff's spinal cord was injured and at which time, during convalescence and thereafter, he had incidents of urinary incontinence. The defendant argues that the issue was thus clearly drawn -- the plaintiff attributing direct causation to the 1966 Wildwood accident and the defendant denying this claim and attributing causation only to the 1964 automobile accident. The defendant says that the trial judge's charge on aggravation of an existing condition inserted into the case a third theory on bowel and bladder incontinence for which there was no basis in the record. We cannot agree with this contention for even if the jury believed the defendant's contention that the 1964 accident directly caused the plaintiff's incontinency, there was evidence also to support a finding that the condition worsened after the 1966 accident.

The record shows that the plaintiff had been involved in a serious automobile accident in October 1964, as a result of which his employer, Western Electric Company, granted him a leave of absence. He was reexamined from time to time by the company physicians and as of December 6, 1965 was reinstated to return to his regular duties as a line installer with no restrictions. Following the Wildwood accident in August 1966 the plaintiff's employer again granted him a disability leave of absence but after he was reevaluated in November 1967 it was determined that he was unable to climb, lift, push, pull or tug and his employment was terminated as of October 23, 1966 for failure to meet physical requirements.

At the trial, physicians who had treated the plaintiff after the first and second accidents testified, and physicians, expert in various fields, who had examined the plaintiff at the defendant's request also testified. It appears from the evidence that the plaintiff did have some urinary problems after his first accident but that this problem was almost cleared up by the time of the second accident. In fact, there is no suggestion that such a condition interfered with the performance of his duties after plaintiff had returned to work in December 1965 after the first accident. There was evidence to support a determination by the jury that the plaintiff suffered bowel and urine incontinence after the second accident and up to the time of trial, from which evidence it was reasonable to infer that the plaintiff's then present condition was caused by the 1966 accident -- either as a new condition or as an aggravation of a dormant or preexisting condition. The plaintiff testified that following the 1966 accident he could only work where he had immediate access to washroom facilities. The fact that the precise words "aggravate" or "worsen" were not used by the plaintiff and the fact that the plaintiff urgently sought to show that the 1966 accident was the direct cause of his condition did not alter the fact that there was evidence attributing this disability of the plaintiff originally to the 1964 accident and its aggravation of the one in 1966. The authorities cited by the defendant accordingly do not support its contention that the trial judge's charge on aggravation created a new issue in the case which was required to be medically established.

It is settled that a wrongdoer is liable for all the harm caused by his negligent act even though it be increased because of an unknown physical condition which could not have been discovered or anticipated prior to the wrongdoing. Restatement 2d, Torts, ยง 461. The rule is that where an injured plaintiff experiences pain and suffering from a preexisting infirmity to which he would not have been subjected except for the negligent act of the defendant, the added pain and suffering is to be considered by the jury in ascertaining damages. Spinning v. Hudson & Manhattan R. Co., 1951, 11 N.J.Super. 333, 78 A.2d 284, 286. Suffice it to say that in the present case there was evidence to sustain a jury finding that the 1966 Wildwood accident caused an aggravation or lighting up of a preexisting condition resulting from the 1964 accident. We conclude that the defendant's contention that the trial judge erred in charging on aggravation is wholly without merit.

The defendant's remaining contention is that the verdict was wholly speculative and without any support in the evidence insofar as it included an award for loss of future earnings. This contention is based upon the fact that the jury were given no guide, whether by way of mortality tables, expert testimony or otherwise, as to the way in which they should determine the present worth of the plaintiff's alleged loss of future earnings. To this question we now turn.

At the time of trial the plaintiff's earning potential as a line installer was shown to be $8,700.00 annually; his earning capacity as a bartender, which he testified was the type of work which he was able to perform under his disabilities, was $5,000.00 annually. At the time of the Wildwood accident the plaintiff was 23 years of age; at the time of trial he was 26 years old. Under the United States life expectancy tables, which plaintiff's counsel read into the record,*fn1 the plaintiff then had a life expectancy of 45.6 years.

In the course of his summation to the jury, the plaintiff's counsel argued that in respect of loss of future earnings the plaintiff, on the basis of his life expectancy, "would have been able to accumulate during his lifetime by way of earnings three hundred and thirteen thousand dollars"; that if the plaintiff "works every day for the next thirty-nine years at that bar" he would be "losing one hundred and forty-eight thousand dollars"; that "This figure, a hundred and forty-eight thousand dollars, would have to be reduced to present worth. * * * So that if you figure at a minimum figure of future loss of earnings of one hundred forty-eight thousand dollars, which is reduced to present worth, as the Judge will explain to you, then you add that figure on the past loss of earnings." He illustrated his argument with charts tabulating the plaintiff's total out-of-pocket expenses, including medical expenses and loss of income to time of trial, totaling $13,488.28, showing calculations of the total amount of salary which plaintiff would have earned had he remained at his employment at Western Electric, $313,000.00, less the total future earnings as service bartender, showing a net future loss of earnings in the approximate sum of $148,000.00.

The trial judge in his charge to the jury on this aspect of the case stated:

"During the course of the plaintiff's closing argument to you, comment was made concerning future loss of wages. But this argument and these figures on the blackboard submitted to you are not ...


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