211 F. 633 | 6th Cir. | 1914
(after stating the facts as above).
As to the merits of the citizenship question, the assignments of error present only the proposition that it was the imperative duty of the court to dismiss the case for lack of jurisdiction. Upon the final trial, this issue was not submitted to the jury, nor was any request rpade for such submission. The record, therefore, contains a finding by a jury, and (if the question was really in the end one for the court) implies a finding by the court that Mrs. Kimball was a citizen of Ohio. In this state of the record, the judgment cannot be overturned on this ground, unless we are clearly satisfied that the finding is wrong. See Note 1.
The court permitted plaintiff to testify that, for several years before the accident, her average earnings or net profits in the boarding house business at.Mt. Clemens had been from $800 to $900 a year. Objections were based on the ground that such profits were speculative, and that they were not shown to be different after the accident, while the true measure of damages was her loss of earning capacity. Whatever the admissibility of this testimony, the court charged:
“One of the items of damage claimed here is in reference to the loss suffered by the plaintiff in her business as a hotel or boarding house keeper. You will disregard any claims asserted by her in that connection.”
And further:
“She would be entitled to compensation for the loss of earning capacity, if any, occasioned by reason of this injury, not taking into consideration these boarding house profits.”
This charge cured the error, if any, in admitting testimony. If it was thought, as is now urged, that the general permission to give damages for “loss of earning capacity,” although the common and ordinary measure of damages, was inappropriate in this case, special limiting instructions should have been asked.
The remaining assignments of error relating to receiving and rejecting evidence, we think do not merit detailed discussion. If the objections involved were well taken, we are satisfied that they involve nothing seriously prejudicial.
The judgment is affirmed, with costs.
Note 1.—For a discussion of the burden of proof on such questions, see opinions of Judges Hook and Amidon in Hill v. Walker, 167 Fed. 241, 92 C. C. A. 633. The principal case does not present the problem of a finding of diverse citizenship which is against the clear weight of the evidence.