Appeal from the Circuit Court of Lake County; the Hon. Robert
K. McQueen, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
This case is before us for the second time.
The plaintiff, David R. Robinson, brought this action under the Structural Work Act (Ill. Rev. Stat. 1973, ch. 48, par. 60 et seq.) against defendant, Greeley and Hansen (Greeley), a partnership, to recover damages for injuries (including brain damage) sustained by plaintiff on March 30, 1973, when he fell from an iron ladder affixed to the wall of a concrete sewer lift station being constructed for the North Shore Sanitary District (District). Defendant, which was the engineering firm employed by the District to design the system and supervise its construction, brought a third-party action for indemnity against plaintiff's employer, E & D Robinson Construction, Inc. (E & D), the general contractor for this project. The first trial resulted in a jury verdict and judgment in favor of the plaintiff in the amount of $325,000. However, we reversed the judgment and remanded for a new trial on the ground that plaintiff failed to plead and prove defendant was "in charge of the work," as required by the Act. (Ill. Rev. Stat. 1973, ch. 48, par. 69; Robinson v. Greeley & Hansen (1980), 86 Ill. App.3d 1082, 408 N.E.2d 723.) This defect was cured upon remand and, after a new trial by jury, judgment was again entered in favor of the plaintiff in the principal action, this time in the amount of $750,000. In the third-party action the jury found in favor of third-party defendant E & D as to Greeley's claim for indemnity, finding that Greeley was in charge of the work and was not free from major fault. Greeley appeals from both judgments.
• 1 Greeley first contends the trial court erred when it refused to allow defendant to inform the jury that plaintiff had a remedy against his employer, E & D, under the Workmen's Compensation Act. (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.) Defendant claims the jury's lack of knowledge on this point resulted in an improper inference that plaintiff's only opportunity for compensation was against defendant. Greeley further maintains such an inference was exploited by plaintiff's counsel's argument to the jury that plaintiff "only [has] one chance for the compensation for the rest of his 39 years of life expectancy."
It is generally held that direct or indirect references to Industrial Commission proceedings in the trial of third-party actions are improper and should be excluded. (Principato v. Rudd (1981), 102 Ill. App.3d 362, 366, 430 N.E.2d 63; Chamness v. Odum (1979), 80 Ill. App.3d 98, 100, 399 N.E.2d 238.) This is especially true with respect to references regarding the amount of payments made by the employer under the Workmen's Compensation Act. (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.; Pierce v. Commonwealth Edison Co. (1981), 101 Ill. App.3d 272, 276, 428 N.E.2d 174; Duffek v. Vanderhei (1980), 81 Ill. App.3d 1078, 1088, 401 N.E.2d 1145.) The general rule has been relaxed, however, in order to show a witness' bias or financial interest in the litigation. (Principato; Sweeney v. Max A.R. Matthews & Co. (1970), 46 Ill.2d 64, 70-71, 264 N.E.2d 170.) Under this circumstance, it is proper to comment upon the existence of this potential recovery, but not the amount of it. Principato; Sweeney.
• 2 In the instant case, defendant was not seeking to establish the financial interest of plaintiff's witnesses. It was seeking only to apprise the jury that plaintiff had a remedy against his employer under the Workmen's Compensation Act and that the action against Greeley was not his only opportunity for compensation. We view the injection of this information as highly prejudicial to plaintiff because it could have the effect of decreasing the jury's award solely because plaintiff had another source of compensation. (See Pierce v. Commonwealth Edison Co. (1981), 101 Ill. App.3d 272, 276, 428 N.E.2d 174; Bryntesen v. Carroll Construction Co. (1963), 27 Ill.2d 566, 568, 190 N.E.2d 315.) We further view this information as irrelevant to the issue which was before the jury, i.e., whether defendant was liable under the Structural Work Act. (Ill. Rev. Stat. 1973, ch. 48, par. 60 et seq.) Finally, we do not consider improper plaintiff's argument to the jury that this was his "one chance for the compensation." Although plaintiff also had a remedy against E & D under the Workmen's Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq.), the policy behind that act is not to provide compensation for injury but rather "to afford employees financial protection when their earning power is temporarily diminished or terminated due to employment injuries." (Laffoon v. Bell & Zoller Coal Co. (1976), 65 Ill.2d 437, 446, 359 N.E.2d 125.) We, therefore, find no error in the trial court's refusal to allow defendant to comment upon plaintiff's remedy under the Workmen's Compensation Act.
• 3 Defendant's next contention is that the trial court erred in failing to submit an itemized verdict form to the jury. It relies upon section 65.1 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 65.1) as authority for its position. We question the applicability of this statute to the instant case, since the statute was not in effect when the present action was originally filed. (See Ill. Rev. Stat. 1979, ch. 110, par. 65.1, effective September 19, 1976.) In any event, defendant has waived this issue by failing to object to the form of the verdict which was submitted to the jury, and by failing to tender an itemized verdict itself. Biundo v. Christ Community Hospital (1982), 104 Ill. App.3d 670, 674, 432 N.E.2d 1293; Jensen v. Chicago & Western Indiana R.R. Co. (1981), 94 Ill. App.3d 915, 932, 419 N.E.2d 578.
• 4, 5 Defendant next contends it was error to instruct the jury as to "present cash value" of future damages without actuarial evidence on the formula to be used in arriving at this amount. It claims this is tantamount to giving an instruction which is not based on the evidence. We disagree. There is no requirement in Illinois that actuarial or statistical evidence be presented to guide the jury in its determination of present cash value. (Crabtree v. St. Louis-San Francisco Ry. Co. (1980), 89 Ill. App.3d 35, 39, 411 N.E.2d 19; Lawson v. Belt Ry. Co. (1975), 34 Ill. App.3d 7, 29, 339 N.E.2d 381; Wells v. Web Machinery Co. (1974), 20 Ill. App.3d 545, 559-60, 315 N.E.2d 301.) The jury was instructed that it must compute present cash value and was given the definition of that term. (Illinois Pattern Jury Instruction (IPI), Civil, No. 34.02 (2d ed. 1971).) The formula for calculating present cash value is, in our opinion, implicit in the definition. (See Kirk v. Walter E. Deuchler Associates, Inc. (1979), 79 Ill. App.3d 416, 398 N.E.2d 603.) We note that defendant has not contested the correctness of the instruction or the definition contained in it. Defendant also does not claim the jury improperly computed present cash value. (Cf. Carlson v. Dorsey Trailers, Inc. (1977), 50 Ill. App.3d 748, 756, 365 N.E.2d 1065.) Further, we note that defendant failed to submit another formula which it believed better explained the method of arriving at this figure. (Pennell v. Baltimore & Ohio Ry. Co. (1957), 13 Ill. App.2d 433, 440, 142 N.E.2d 497.) The burden was on defendant to do so if it felt the formula in IPI Civil No. 34.02 needed supplementing or clarifying. (Pennell.) We think the jury was adequately informed on how to arrive at present cash value. In addition, any confusion in how to apply the instruction was adequately clarified by plaintiff's counsel's extensive comments during closing argument on the factors to be considered in computing this figure. We conclude that while an actuary's testimony may be helpful to a jury charged with calculating present cash value, it is not necessary or required before an instruction on this subject may be submitted.
Defendant next claims that evidence of plaintiff's present earnings from David Robinson Construction Company, of which plaintiff is the sole shareholder, should have been admitted into evidence on the issue of lost earning capacity. Plaintiff, however, contends that these earnings were not admissible because they represented income resulting from the combination of capital and labor and were therefore not indicative of his earning capacity. We agree.
• 6-8 Impairment of earning capacity is a proper element of damages to be considered by the trier of fact. (Buckler v. Sinclair Refining Co. (1966), 68 Ill. App.2d 283, 216 N.E.2d 14.) Recovery, however, must be limited to such loss as is reasonably certain to occur. (Christou v. Arlington Park-Washington Park Race Tracks Corp. (1982), 104 Ill. App.3d 257, 432 N.E.2d 920.) Generally, the measure of damages for impairment of earning capacity is the difference between the amount which plaintiff was capable of earning before his injury and that which he is capable of earning thereafter. (See generally 25 C.J.S. Damages sec. 87, at 951 (1966).) Damages should be estimated on the injured person's ability to earn money, rather than what he actually earned before the injury, and the difference in the actual earnings of plaintiff before and after the injury does not constitute the measure. (Buckler; 25 C.J.S. Damages sec. 87, at 952-53 (1966).) The fact that plaintiff's earnings after his injury are at the same or greater rate than before is not a criterion as to earning power, since earning capacity may be materially impaired although the employer continues to pay the old rate. (DeWall v. Prentice (Iowa 1974), 224 N.W.2d 428; Vess v. Gardner (5th Cir. 1969), 413 F.2d 424; Anthes v. Anthes (1965), 258 Iowa 260, 270, 139 N.W.2d 201, 208; Rice v. Philadelphia Transportation Co. (1959), 394 Pa. 454, 147 A.2d 627; Kincannon v. National Indemnity Co. (1958), 5 Wis.2d 231, 92 N.W.2d 884.) Nevertheless, earnings before and after the injury may be helpful to a jury in its determination of the impairment of ability to earn. 25 C.J.S. Damages sec. 87, at 962-63 (1966); Anthes; Boodry v. Byrne (1964), 22 Wis.2d 585, 126 N.W.2d 503; Smith v. Corsat (1963), 260 N.C. 92, 131 S.E.2d 894.
• 9 Where the injured person is self-employed, the problem of determining lost earning capacity is more complicated. Generally, earnings which are derived from the combination of capital and labor should not be considered in determining the diminution of earning capacity. (25 C.J.S. Damages sec. 87, at 955 (1966).) However, it has also been held that a jury may properly consider the profits which have been derived from plaintiff's management of or activity in a business, as distinguished from profits derived from invested capital. (Bell v. Yellow Cab Co. (1960), 399 Pa. 332, 160 A.2d 437; Hetler v. Holtrop (1938), 285 Mich. 570, 281 N.W. 434.) Corpus Juris Secundum described the circumstances under which income derived from a business may be considered in determining lost earning capacity:
"Where the predominating factor is the directing intellectual and physical labor of the individual, such business may be characterized as personal, and income therefrom may be regarded as earnings, even though others with tools and equipment may aid in the work, as the personal feature prevails over the investment of insignificant capital and the labor of others." 25 C.J.S. Damages sec. 87, at 956 (1966).
• 10 Applying the foregoing principles to the present case, we think the trial court was correct in excluding evidence of plaintiff's present earnings. On the basis of the record before us, we cannot characterize plaintiff's wrecking business, which was formed after the dissolution of E & D and of which plaintiff is the sole shareholder, as predominantly personal. The record indicates that following the dissolution of E & D, the assets of that company were merely transferred to the wrecking company. Machinery that would be useful in the wrecking industry was given to plaintiff for use in his new business. These investments are clearly unrelated to plaintiff's earning capacity after his injury. The record is also clear that while plaintiff operates a bulldozer and backhoe in the business, he also employs others to perform critical functions of the business. We conclude that on the basis of this record the predominating factor of plaintiff's wrecking company is the investment of significant capital, as well as the use of the labor of others in performing critical functions. Under these circumstances, we do not view plaintiff's corporate income as an accurate indicator of his earning potential.
• 11 Defendant also claims that the testimony of William Schweihs, a vocational rehabilitation counselor, regarding plaintiff's lost earning capacity was too speculative to be admitted into evidence. We disagree. Mr. Schweihs testified that prior to the accident plaintiff was capable of earning $50,000 per year. This conclusion was based upon an evaluation of plaintiff's skills and duties in the construction industry prior to the accident. Mr. Schweihs also testified that plaintiff's earning capacity after the injury was only $10,000. In reaching this conclusion, Mr. Schweihs considered plaintiff's employability in the wrecking industry, in which he was currently employed, and clerical and machine-tending occupations, as well as periods of unemployment which might occur in those occupations. Thus, plaintiff's current earning capacity was determined by his current position, duties and skills. (Cf. Christou v. Arlington Park-Washington Park Race Tracks Corp. (1982), 104 Ill. ...