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ROBERT M. HAVENS v. JOHN TONNER (11/22/76)

decided: November 22, 1976.

ROBERT M. HAVENS
v.
JOHN TONNER, ET AL. APPELLANT



Appeal from a Judgment of the Court of Common Pleas of Erie County at No. 2727-A-1971, Civil Division.

COUNSEL

John M. Wolford, MacDonald, Illig, Jones & Britton, Erie, for appellant.

Frank L. Kroto, Jr., Will J. Schaaf, Erie, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Hoffman and Price, JJ., join.

Author: Van Der Voort

[ 243 Pa. Super. Page 373]

This case arises on appeal by defendant Tonner from a judgment against him for $170,000 in an action of trespass arising from a motor vehicle collision.

The accident occurred December 12, 1969, on interstate highway I-90 just southeast of Erie at a time when the highway was icy and partially snow covered. The right lane of the highway was partially obstructed by a light truck which had gone out of control earlier in the day and ended up disabled and at right angles to the highway, blocking most of the right lane.*fn1 Appellant, operating a tractor-trailer unit heavily laden with steel sheet, was driving in the left-hand lane some distance behind appellee. Appellee, driving in the right-hand lane, testified that as he approached the obstruction he signaled his move into the left-hand lane with his turning light, but appellant testified that he saw no signal. Appellant was driving at a faster rate than appellee and was unable to brake or decelerate sufficiently as appellee's auto pulled into the lane in front of him. As a consequence, appellant's truck struck appellee's car from the rear just after it had passed the disabled vehicle. The injuries to the appellee, which are the basis of this litigation, resulted.

[ 243 Pa. Super. Page 374]

Appellee was 38 years old at the time of the accident, employed by Jones and Laughlin Steel Corporation as a salesman in the Erie territory at a salary of $900 a month plus limited bonuses.

Appellee sustained a moderate to severe whiplash and a weakness in the right arm and leg which developed after the whiplash. He was hospitalized for ten days and then convalesced at home over the remainder of the Christmas holidays. Thereafter he went back to work. For the first two or three weeks his wife drove his car for him, but thereafter he was on his own. He continued in this employment until June 11, 1973, some three and one-half years after the accident, driving his own car a normal mileage of about 2,000 miles a month and working full time. He did this under some difficulty because of the impediment of a cervical collar which he wore because of the whiplash and a weakness in the right arm and leg which developed as a consequence of the accident.

On June 11, 1973, his employment was terminated because of a reorganization of sales territory, unrelated to any physical disability of appellee. Appellee's supervisor testified that inasmuch as appellee's territory involved only one large account the decision was reached that it could be handled by a product manager or from the central office without employing a salesman. The decision was not influenced by appellee's physical condition, most of which was not even known to the supervisor.

It is as of this date of termination that appellee claims total and permanent disability. Appellee was earning $1,065 per month at the time of termination.

Between the time of the accident and the trial, a period of nearly five years, appellee's family doctor had him examined by several neurosurgeons and the Cleveland Clinic. These doctors have given appellee many tests, including the myelogram on several occasions, in an effort

[ 243 Pa. Super. Page 375]

    to locate the source of his difficulty. All tests have been negative.

Unrelated to the accident, the appellee suffers from diabetes, arthritis, gout and weight problems.

The liability of appellant and the non-liability of his co-defendants have been established by jury verdict and are not at issue on appeal. The appeal is addressed to the issue of damages and, specifically, to the testimony of an economist who was permitted to testify to a calculation made by him of appellee's lost earnings based upon the premise of total and permanent disability over an estimated normal work life of 20.69 years, projected forward from the date of trial. This work life expectancy was calculated from work life tables published by the Bureau of Labor Statistics of the Department of Labor. The economist started his calculation on the assumption that had appellee continued as an employee of Jones and Laughlin he would have been earning at an annual rate of $12,780 at the time of trial, to which he added various fringe benefits incident to that employment and, finally, a cumulative annual increment of 3 1/2% which he characterized as a "productivity factor".

The result of these calculations was that the loss of future earnings would amount to $426,510 and that these lost earnings had a present value of $261,291 under the Pennsylvania 6% rule. The witness added $16,926 for bonuses that might have been earned between the date of the accident and the time of trial had appellee made more sales. The end result was a damage estimate of $278,217. Using the assumption of the Pennsylvania rule that this money could be invested at 6%, the result would be an annual income of $16,693 with the principal left intact.

The admissibility of this testimony is challenged on two grounds: (1) that there was no basis for the assumption that the appellee suffered a total and permanent

[ 243 Pa. Super. Page 376]

    disability; and (2) that there was no justification for adding and compounding a 3 1/2% increment as a "productivity factor."

Total and permanent disability. The evidence relied upon to support a finding of total and permanent disability is found in the testimony of appellee's family doctor who testified on direct examination that in his opinion appellee was not employable in any labor market at the present time. When the adequacy of this statement was challenged as a basis for the economist's assumption of total and permanent disability, the doctor was recalled and asked whether appellee's disabilities, which the questioner characterized as total and permanent, were the direct result of the trauma which appellee suffered in the accident. The doctor accepted the assumption of the question and replied that the accident was the cause of his present condition and caused his disability.*fn2 The doctor identified the injuries to which he was referring as the neck injury and weakness in the right arm and leg.

On cross examination, the doctor testified that full disability began when he lost his job on June 11, 1973. He explained this conclusion on the basis of his experience as medical advisor for two companies in Erie which he said would not even consider hiring a man in appellee's condition, "not the way industry is set up now a days".

There was no testimony that appellee was incapable of performing all the physical and mental functions necessary to full time employment as a salesman or that his condition was any different following termination of his employment three and a half years after the accident than it had been before termination. The medical testimony was to the effect that appellee's condition resulting from the accident had apparently stabilized, neither improving

[ 243 Pa. Super. Page 377]

    nor worsening. The testimony from which total and permanent disability is assumed rests on the conclusion of a doctor that a man with a neck problem resulting from a whiplash and a weakened right arm and leg was unemployable in the industrial market as presently set up. This was treated by the doctor as the equivalent of a total and permanent disability and so accepted by the trial court.

We cannot agree. Being industrially unemployable because of medium to large industry's current reluctance to hire employees with medical problems does not equate with either total or permanent disability. The fact that appellee continued in his job as a steel salesman for three and one-half years after the accident demonstrates that there is a difference. Nor does industry, such as Jones and Laughlin or the doctor's two client industrial firms, constitute the sole employment market. Appellee's experience as a salesman would be relevant in any labor market where sales skill is a factor. Appellee's only effort to find employment after his termination by Jones and Laughlin was a single application on which he declined to follow through because it involved a physical examination. The fact that the family doctor, who characterized appellee as unemployable by industry as he knew it, accepted this circumstance as the equivalent of total and permanent disability is a legal conclusion rather than medical evidence and one that we cannot accept.

It follows that the economist who calculated projected future loss of earnings should not have been permitted to make that calculation on the assumption of total and permanent disability without evidence of physical or medical disabilities which would prevent appellee from continuing ...


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