Wallace v. Pennsylvania Railroad

Opinion by Mr. Justice Pell, The assignments of error relate to the answer of the court to a request to charge that there was not sufficient evidence that the plaintiff’s earning capacity had been reduced by the accident to warrant a recovery on that ground. The plaintiff kept a boarding house. There was some evidence that her business was diminished because of her injuries. The learned judge apparently with some hesitation, because of the meagerness of the testimony, declined the point, and by his answer thereto the jury were allowed to find as an inference of fact that there had been a diminution of the plaintiff’s earning power because there had been a diminution of her business. It is now argued by the appellant that in order to recover for loss of earning capacity the plaintiff was bound to show that she had suffered a loss in that respect, and that it could not be shown by proof of loss of the profits of her business. The plaintiff could have produced testimony to show to what extent her earning capacity had been impaired, and it was incumbent on her to do so in order to recover for any loss on that ground: McHugh v. Schlosser, 159 Pa. 480. But we do not assent to the proposition that as proof of the loss of earning capacity it was incompetent for the plaintiff to show a diminution of the profits of her business. This proposition finds support in some statements in the opinion in Goodhart v. Penna. R. Co., 177 Pa. 1. In that case much incompetent testimony had been admitted on the question of the measure of damages. Among other things the plaintiff had been allowed to produce expert testimony as to the money value of his earning capacity, and to show the profits of a mercantile business in which some time before his injury he had been engaged as a partner. It was in relation to this testimony that it was said that profits derived from an investment or management of a business enterprise are not earnings, and that the profits of a business with which one is connected cannot therefore be made use of as a measure of his earning power. These state [130] ments, while correct as applied to the facts of that case, are altogether too broad for general application, and they are misleading. Profits derived from capital invested in business cannot be considered as earnings, but in many cases profits derived from the management of a business may properly be considered as measuring the earning power. This is especially true where the business is one which requires and receives the personal attention and labor of the owner. We are of the opinion that it was competent to show the profits of the plaintiff’s business as a measure of her earning power, but we are constrained to hold that there was not sufficient evidence on this subject to warrant its submission to the jury. All that was shown was that when she was able to resume her business after her injury her house was not- as well filled as before. Neither the cause of this falling off of her business, nor its effect upon the profits, was shown. Both of these were necessary as a basis for recovery for the permanent impairment of her earning power. The judgment is reversed with a venire facias de novo.