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WILBERT JANSON v. ROBERT F. HUGHES AND CHEMARGRO CORPORATION (12/17/82)

filed: December 17, 1982.

WILBERT JANSON, JR. AND WILBERT EDWARD JANSON, APPELLANTS,
v.
ROBERT F. HUGHES AND CHEMARGRO CORPORATION



No. 2604 October Term, 1979, Appeal from the Judgment of the Court of Common Pleas of Montgomery County, No. 75-00687.

COUNSEL

Thomas J. Burke, Ardmore, for appellants.

Charles W. Craven, Philadelphia, for appellees.

Price, Wickersham and Lipez, JJ. Price, J., filed a dissenting opinion.

Author: Lipez

[ 309 Pa. Super. Page 400]

Plaintiff*fn1 commenced this trespass action for injuries sustained when the vehicle he was operating, while stopped at a red light, was struck from the rear by defendant Robert F. Hughes, who was driving a vehicle owned by his employer, defendant Chemargro Corporation. The jury awarded plaintiff $5,000. Plaintiff moved for a new trial on the basis of several issues related to damages. After denial of those motions and entry of judgment, plaintiff took this appeal, in which he has abandoned all but one of his claims -- that the trial judge erred in precluding the jury from considering impairment of plaintiff's earning power as an element of damages. We agree with this contention, and hence we reverse and grant a new trial limited to the issue of damages.

The test for impaired earning capacity is whether the plaintiff's "economic horizon" has been shortened. See generally Frankel v. Todd, 393 F.2d 435, 438-40 (3d Cir. 1968), cert. den'd, 393 U.S. 855, 89 S.Ct. 137, 21 L.Ed.2d 120 (discussing Pennsylvania Supreme Court cases which developed this standard). The court below held that there was no evidence that plaintiff's economic horizon had been limited

[ 309 Pa. Super. Page 401]

    in any way. We disagree. One of plaintiff's medical experts, Dr. Snedden, testified that some symptoms of plaintiff's back and neck injury were permanent, and as a result plaintiff would always have to restrict his occupational activities in the future. Plaintiff would be unable to do heavy work, such as lifting, because it would undoubtedly cause his symptoms to flare up and could lead to total disability. Plaintiff's other medical expert, Dr. Russo, concurred in the findings of permanent injury and plaintiff's resulting inability to do certain types of work.

The testimony of Doctors Snedden and Russo was clearly sufficient to raise a jury question as to impairment of plaintiff's earning power. See Wright v. Engle, 256 Pa. Super.Ct. 321, 326-27, 389 A.2d 1144, 1146-47 (1978); Frankel v. Todd, supra. In holding to the contrary, the trial judge did not rely on any authority in his opinion, although in ruling on the question at trial, he had stated that his decision was supported by Baccare v. Mennella, 246 Pa. Super.Ct. 53, 369 A.2d 806 (1976). That case is easily distinguishable, since it merely held that "because there was no evidence regarding the probability that the disability would persist in the future the jury could not consider any future loss of damages." Id., 246 Pa. Superior Ct. at 58, 369 A.2d at 808. Here such evidence was provided by plaintiff's medical experts.

Defendants argue that evidence of permanent injury by itself is insufficient, and the evidence must also show that the injury will prevent the plaintiff from engaging in a specific type of work. Plaintiff's medical experts, Doctors Snedden and Russo, also met this latter requirement, because of their specific testimony that plaintiff's injury would preclude his engaging in work involving heavy lifting. While this evidence, like most evidence of impairment of earning power, is imprecise and difficult to evaluate, it is nevertheless sufficient under the Pennsylvania Supreme Court cases discussed in Frankel v. Todd, supra, cited with

[ 309 Pa. Super. Page 402]

    approval in Wright v. Engle, supra, 256 Pa. Super.Ct. at 327 n. 2, ...


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