PLOURD, Rеspondent, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Appellant.
Supreme Court of Oregon
Argued April 2, affirmed May 1, 1975
272 Or. 35 | 534 P.2d 965
Before MCALLISTER, Presiding Justice, and DENECKE, HOLMAN, TONGUE, HOWELL and BRYSON, Justices.
TONGUE, J.
This is an action for damages for personal injuries sustained by a brakeman on a freight train. It is the second time that this case has come before this court. In a previous decision we set aside a jury verdict in favor of the plaintiff because of errors in the trial of the case and remanded it for a new trial. 266 Or 666, 513 P2d 1140 (1973). The case was then retried before a jury, which again returned a verdict in favor of the plaintiff. Defendant again appeals, charging further errors in the retrial of the case. We affirm.
With the exception of some new evidence, as dis-
1. The trial court did not err in admitting evidence of earnings of other employees and computations based upon such evidence.
Defendant‘s first contentions are that the trial court erred “in receiving computations of the present value of the 1973 earnings of other railroad employees projected over plaintiff‘s working life expectancy” and “in receiving testimony that the earnings of other employees in 1972 and 1973 were evidence of income which would have been available to plaintiff.”
In the appeal to this court following the first trial of this case the defendant did not assign as error the admission of evidence of the earnings of other employees, but complained of the admission of a computation by plaintiff‘s expert witness showing the present value of the future wages of another brakeman on thе same division of the railroad with six months less seniority. In considering the admissibility of that evidence in our first decision in this case we pointed out (at 681-82) that in our previous decision in Conachan v. Williams, 266 Or 45, 511 P2d 392 (1973), we had held (at 59) that any evidence which would “indicate fairly the capacity of the plaintiff to earn money in his usual vocation” should be admitted. In Conachan we also recognized (at 61) that most courts now apparently hold that on the question of earning capacity it is proper to consider, under some circumstances, employment for which plaintiff was qualified at the time of his injury and the usual compensation paid for such employment. We also held in that case, however (at 65), that although a trial judge has considerable latitude in the admission or rejection of such evidence, therе should be a showing as a foundation for the admission of such evidence that circumstances are sufficiently similar so as to
On the application of these rules to the testimony as offered by the plaintiff on the first trial of this case, the majority of this court held that the trial court erred in admitting that computation. The reason stated by the majority (266 Or at 687) for that holding was that the admissibility into evidence of that computation must be based upon the following assumption:
“* * * [T]hat because there is similar seniority, there is sufficient similarity between earning capacities to make what the other workman earned rеlevant. The error in that assumption is that plaintiff‘s demonstrated earning capacity is at variance with such an assumption. Without any showing why plaintiff earned less (i.e., temporary illness, injury, etc.), the jury is allowed to assume that in the future plaintiff will earn as much as the other workman. This is not a valid assumption in the face of proof of what they actually earned and in the absence of рroof why plaintiff in the past has been earning less.”
Thus, the primary question to be decided in determining whether it was error to receive similar computations and testimony on the retrial of this case is whether evidence was offered by plaintiff to show why he earned less than the employees whose earnings were used as the basis for such computations and why it was reasonable for the jury to assume that had he not been injured his earnings in the future would have been comparable to their earnings. In other words, was sufficient evidence offered by the plaintiff on the retrial of this case to satisfy the requirement of similarity in circumstances as a matter of a foundation for the admissibility of such evidence?
Upon examination of the record on the retrial of
The explanation offered by plaintiff for his smaller earnings for the year 1969 and 1970, prior to his injury, was that his wife had previously left him with the custody of six children, with the result that
By the time of the second trial, however, only the youngest of his six children remained at home—a boy age 16. Meanwhile, his income for thе first seven and one-half months of 1970 had increased to $5,000 compared with $7,000 for the entire year of 1969. During 1970 he had also been notified of an opportunity for advancement from brakeman to conductor, which would have been open to him in January 1971, and was studying in preparation for qualifying for that advancement. Most of the other eight brakemen with comparable seniority had been advanced to conductor by the time of trial.
Plaintiff also offered testimony to show that he had worked since his graduation from high school and had a good employment record. He was described by his fellow employees as “a very good man” as a brakeman, as “a very competent man” and as an “outgoing enthusiastic person” prior to his injury.
A more comprehensive foundation for the admissibility of the evidence of earnings of the other eight employees and the computations based upon their earnings might have been desirable. In our opinion, however, this testimony was sufficient as a foundation
We believe that it could have been properly inferred from that evidence that plaintiff was not only a good father and family man, but was competent, hardworking, intelligent and ambitious, and that as he neared completion of the discharge of his responsibilities as a father in raising six children he would have not only sought promotion as a conductor, but would also have taken “runs” that would have produced income comparable to the income of the other brakemen-conductors.
In addition, it must be recognized, as pointed out in Conachan v. Williams, supra at 55-57, 64, that the issue in such cases is not the computation of plaintiff‘s actual future wage loss, which would often be impossible, but the impairmеnt of plaintiff‘s future earning capacity; that proof of the present value of
It must also be recognized, in our opinion, that it may well be impossible for an injured employee to find some other employees working under identical circumstances for the purposes of evidence of comparative earnings and projected computations of the present value of the impairment of his earning capacity, and that when, in such a case, the plaintiff has offered evidence based upon earnings of other employees who worked under circumstances most nearly comparable to his own circumstances, as in this case, the differences in the circumstances of the plaintiff and of such other employees are matters which go to the weight to be given to such evidence by the jury, rather than to bar the admissibility of such evidence, provided that the circumstances are “substantially similar.”
For these reasons, we hold that the trial court did not err in admitting the evidence offered by plaintiff of the earnings of other brakemen and of the computations based upon comparable earnings.4
2. The trial court did not err in excluding evidence relating to defendant‘s disability and rehabilitation program.
Defendant contends that the trial court erred in excluding testimony of a member of its Disability Control and Rehabilitation Program describing that program in some detail.
Evidence had been previously received, on offer by defendant, that on February 15, 1974, about three weeks before the second trial, defendant had delivered to plaintiff a letter offering him employment as a clerk.5
The excluded offer of proof, which described the Disability Control and Rehabilitation Program in some detail as an established and active program involving a number of disabled employees, was offered to show that the offer of employment to plaintiff was made in good faith, so as “to rebut the inference of bad faith which plaintiff paraded before the jury” upon cross-examination of the witness who testified to the offer of employment.
At the previous trial defendant offered evidеnce that a somewhat similar offer of employment was made shortly before that trial. That evidence, including the testimony of the offer itself, was excluded by the trial court. We held (at 683-86) that the trial court did not err in excluding that evidence, in that, even if an offer of employment under such circumstances may have had probative value so as to be relevant, the danger of pоssible prejudice to the plaintiff and the danger of prolonging the trial by the in-
We believe that the same is also true with respect to the evidence offered on retrial relating to defendant‘s Disability Control and Rehabilitation Program. It follows that the trial court did not err in excluding that evidence.6
3. The trial court did not err in denying defendant‘s motions for mistrial based upon misconduct by plaintiff‘s attorney during argument to the jury.
Finally, defendant contends that the trial court erred in denying its motions for mistrial during arguments to the jury by plaintiff‘s attorney. We do not condone the conduct of plaintiff‘s attorney, who was not a member of the Oregon State Bar, in his arguments to the jury. It is well-established, however, that because the trial court is in the best position to evaluate the effect upon the jury of claimed misconduct by lawyers in arguments to juries, we consider the granting or denial of such a motion fоr mistrial to be a matter which should be left largely to the discretion of the trial judge, subject to reversal only for an abuse of that discretion. See Martin v. Dretsch, 234 Or 138, 140, 380 P2d 788 (1963), and cases cited therein. We
In addition, we find, upon an examination of the record, that the trial court gave, or offered to give, cautionary instructions in two of the four instances which were the subject of motions for mistrial and are assignments of error by the defendant; that it sustained defendant‘s objection to plaintiff‘s argument in a third instance, and that the fourth instance was relatively innocuous. Cf. Hovis v. City of Burns, 243 Or 607, 613-14, 415 P2d 29 (1966).
It would serve no useful purpose to describe in detail the various instances of claimed misconduct by plaintiff‘s attorney. After considering each of them, however, we hold that the trial court did not abuse its discretion in denying defendant‘s motions for mistrial.
Finding no error, the judgment of the trial court is affirmed.
DENECKE, J., specially concurring.
I specially concur with reference to item numbered 2. of the majority opinion, ”The trial court did not err in excluding evidence relating to defendant‘s disability and rehabilitatiоn program.” I concur that the trial court committed no reversible error, but for different reasons.
The defendant was permitted to put in evidence that a Disability Control and Rehabilitation Program
The offer of proof only purported to offer some details of the rehabilitation program; for example, that it has been operating since early in the 1950s. Other parts of the offer of proof referred to facts which would not have been responsive to any questions set out in the assignments of error which were asked and to which objections were sustained; for example, the offer of proof included an exhibit listing the employees who had been given jobs with lighter duties. This would not have been responsive to any question set out in the assignment of error. For this latter reason and for the reason that error, if any, was minimal and, therefore, not prejudicial, I concur.