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ALVERDA M. GARY v. CLAY IRVIN MANKAMYER (07/05/79)

decided: July 5, 1979.

ALVERDA M. GARY, APPELLANT,
v.
CLAY IRVIN MANKAMYER, A/K/A IRVIN CLAY MANKAMYER, APPELLEE



No. 146 MARCH TERM 1978, Appeal from the Order of the Superior Court at No. 814 April Term 1976 Reversing the Judgment entered May 12, 1976, by the Court of Common Pleas of Somerset County, Pennsylvania, at No. 593 Civil 1971.

COUNSEL

Nathaniel A. Barbera, Samuel D. Clapper, Barbera & Barbera, Somerset, for appellant.

James B. Yelovich, Kimmel, Rascona, Yelovich & Bowman, Somerset, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Roberts, J., concurs in the result.

Author: Nix

[ 485 Pa. Page 527]

OPINION OF THE COURT

The instant appeal arises out of a motor vehicle trespass action tried before a jury in the Court of Common Pleas of Somerset County, Pennsylvania which resulted in a damage award of $59,800.00 for the appellant, Mrs. Alverda M. Gary, a registered practical nurse and against appellee, Mankamyer. The issue presented focuses upon instructions to the

[ 485 Pa. Page 528]

    jury concerning the rule to be applied in ascertaining damages to appellant's loss of earning capacity resulting from appellee's tortious conduct and to the admissibility of actuarial evidence concerning appellant's loss of earning capacity in the future.

The Court of Common Pleas of Somerset County en banc considered and rejected appellee's contentions in a carefully considered opinion passing on appellee's motion for a new trial.

The Superior Court reversed the lower court's opinion based on its reading of our decision in Kmiotek v. Anast, 350 Pa. 593, 39 A.2d 923, and granted a new trial limited to the question of damages.

Defendant-appellee contends that the evidence presented by plaintiff-appellant showed only a permanent partial impairment of earning capacity and, hence, that it was error to admit into evidence expert evidence by an actuary predicated on the existence of a total impairment of earning capacity. This contention evidences a common, but erroneous, understanding of the law of damages applicable to loss of earning capacity. See, Woods, Earnings and Earning Capacity as Elements of Damage in Personal Injury Litigation, 18 Arkansas L.Rev. 304 (1965). Under Pennsylvania law, a plaintiff seeking recovery for total loss of earning power must show two things: (1) a permanent injury and (2) a total impairment of earning power. Kmiotek v. Anast, supra. In the case at bar, even appellee's expert medical witness conceded that appellant's injuries were permanent so there is no question of compliance with the first leg of the rule in Kmiotek. But appellant reads Kmiotek as teaching that a total impairment of earning ...


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