Harris v. Security Trust & Savings Bank

BARNARD, P. J.

This is an action for damages arising out of an automobile collision. On October 21, 1951, the plaintiff was driving on Highway 101 when a car driven by the deceased, Edwin T. Smith, entered the highway from an intersecting street. In the resulting collision Smith was killed and the plaintiff suffered injuries to both knees, a back injury, cuts on his chin, chest and head, and injury to the spleen area. He was taken to a hospital where surgery was performed, he was confined to his home for four or five months, and there is evidence that some of his injuries would be permanent.

In his complaint the plaintiff sought $35,000 as general damages and as special damages alleged medical expenses amounting to $669.73, loss of personal property amounting to $700, and that he was further damaged in the sum of $1,000 because he was required to employ the services of a substitute manager for his restaurant and café, and to pay this substitute the prevailing wage of $100 a week for 10 weeks.

Evidence was introduced which is sufficient to support these items of special damage. A jury returned a verdict in favor of the plaintiff for $12,500, and finding against the defendant on its cross-complaint. Judgment was entered accordingly and the defendant has appealed.

Appellant’s sole contention is that the court erred by giving a portion of an instruction which reads as follows:

“The reasonable value of the time lost, if any, by said plaintiff since his injury wherein he has been unable to pursue his occupation. In determining this amount, you should consider evidence of said plaintiff’s earning capacity, his earnings, and the manner in which he ordinarily occupied his time before the injury, and find what he was reasonably certain to have earned in the time lost had he not been disabled. A person’s ability to work may have a monetary value to himself even though he is not gainfully employed by another. For example, if, as a result of being partially or wholly disabled, a person has been reasonably required to employ someone else to do things that such person, himself, ordinarily would do, the moneys paid out for such services are an element of the damages caused by the disability.”

It is argued that it was prejudicial error to instruct the

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