wages24 after than before the injury was inflicted. In like manner, the mere possibility that the physical injuries disabling one from engaging in his particular line of work may result in his being driven to enter another and more lucrative field of employment will not deprive him of his right to damages based on his diminished earning power in the vocation followed by him at the time of the injury.25 § 7300. Partial Incapacity under English Workman's Compensation Act. The English Workman's Compensation Act provides that the amount of compensation under the act for total or partial incapacity resulting from the injury shall be a weekly payment of a sum during the incapacity after the second week not exceeding fifty per cent. of the actual earnings during the previous twelve months, if the employé has been so long employed, but if not, then for any less period during which he has been in the employment of the same ployer. Under this act the wages for the entire twelve months are to be considered if the employment was under the same employer, although the character of the employment and the amount of wages changed during that time.20 26 §7301. Measure in Case of Person Working on Commission.Where the injured person had no fixed salary, but was working on a commission, as, for instance, a traveling salesman, it has been held proper to show his average yearly earnings for the purpose of establishing the loss of earning power sustained.27 § 7302. Personal Oversight and Superintendence of Business.The damages recoverable for impairment of capacity to labor are limited to those derived entirely from the personal skill and services of the injured person, and hence profits derived from a business pre &c. Co., 122 Cal. 504; s. c. 5 Am. Neg. Rep. 115; 55 Pac. Rep. 326; Hoyt v. Metropolitan St. R. Co., 175 N. Y. 502; s. c. 67 N. E. Rep. 1083; aff'g s. c. 73 App. Div. (N. Y.) 249; 76 N. Y. Supp. 832; San Antonio &c. R. Co. v. Turney (Tex. Civ. App.), 78 S. W. Rep. 256 (wages received in another line of work). A passenger on a street car, whose ankle was broken, and remained weaker than the other ankle, was entitled to compensation for future pain and suffering and impairment of earning capacity, though he continued doing the same work and receiving the same wages as be fore the injury: Duffy v. St. Louis 24 Central Mfg. Co. v. Cotton, 108 25 Ostrander v. Lansing, 115 Mich. 224; s. c. 73 N. W. Rep. 110; 4 Det. Leg. N. 833. 2 Price v. Marsden, [1899], 1 Q. B. 493; s. c. 68 L. J. Q. B. (N. S.) 307. 27 Paul v. Omaha &c. R. Co., 82 Mo. App. 500. ! 28 viously to the injury may not be proved. This has been held not to prevent a consideration of the nature and extent of the employment of the injured person, and the means of his personal oversight and superintendence in conducting the business.29 But evidence merely that after the injured person was able to resume his business after the injury, the business was not so good as before, should not go to the jury on the question of loss of earning capacity, where the evidenceis not followed by testimony showing the cause of the falling off of business nor the effect of the impaired capacity to labor on such profits.30 § 7303. Effect of Former Impairment. The impairment of earn-ing capacity for which damages may be recovered is the impairment that results from the injury sued upon; and where such capacity has been impaired in a former accident the jury should be cautioned to limit the recovery for this element to the impairment directly resulting from the later injury.31 31 § 7304. Mental Impairment as Result of Injury may be Shown.Expert testimony as to injuries to the mind resulting from a negligent act is admissible because bearing on the question of earning capacity.32 § 7305. Earnings of Unlicensed Physician.-A physician without a degree from a medical institution is not denied all right of recovery of damages for an injury impairing his earning capacity by the fact that a statute prohibits such a physician from recovering his fees by action; but in such a case the damages from loss of fees will be based upon the fees he would have received without suit.33 § 7306. Whether Impairment of Earning Capacity must be Specially Averred.-Generally the rule allows proof of a diminished earning capacity under allegations which sufficiently show that such capacity was impaired without the averment of special damage;34 as where Pryor v. Metropolitan St. R. Co., 85 Mo. App. 367; Blate v. Third Ave. R. Co., 29 App. Div. (N. Y.) 388; s. c. 51 N. Y. Supp. 590. Storrs v. Los Angeles Traction Co., 134 Cal. 91; s. c. 66 Pac. Rep. 72; Jeyes v. Cedar Falls, 107 Iowa 509; s. c. 78 N. W. Rep. 227; Chicago &c. R. Co. v. Posten, 59 Kan. 449; s. c. 11 Am. & Eng. R. Cas. (N. S.) 138; 53 Pac. Rep. 465. 30 Wallace v. Pennsylvania R. Co., 195 Pa. St. 127; s. c. 45 Atl. Rep. 685. 31 Leslie v. Jackson &c. Traction Co., 134 Mich. 518; s. c. 96 N. W. Rep. 580; 10 Det. Leg. N. 559. 32 Birkel v. Chandler, 26 Wash. 241; s. c. 66 Pac. Rep. 406. 33 Holmes v. Halde, 74 Me. 28; s. c. 43 Am. Rep. 567. 34 North Chicago St. R. Co. v. Brown, 178 Ill. 187; s. c. 52 N. E. Rep. 864; aff'g s. c. 76 Ill. App. 654; Swift v. O'Neill, 88 Ill. App. 162; s. c. aff'd, 187 Ill. 337; 58 N. E. Rep. 416. 36 the complaint avers the permanent and defective use of a foot and leg, rendering the person a cripple for life,35 or that the injuries are permanent and incurable and the ability of the injured person to make a living and earn money thereafter is diminished, or that by reason of the injuries received the plaintiff has been and will be prevented thereafter from following his usual vocation, or where the complaint merely prays for judgment for a certain amount because of permanent injury to a limb, particularly in absence of a motion for a more specific statement.3 39 38 § 7307. Extent of Loss must be Shown.-Generally loss of earning power can only be considered as an element of damages where there is evidence from which the pecuniary extent of such loss may be estimated, and where plaintiff asks damages because of his diminished' earning capacity, but gives no evidence of his capacity before or after the accident, the question of such damages should not be submitted to the jury.40 41 § 7308. Evidence to Show whether Capacity for Labor has been Impaired. The simple fact of impairment may sufficiently appear from the nature of the injury, as where amputation of limbs became necessary. On this issue evidence is admissible to show the necessity and fact of employment of assistants in the performance of duties. formerly performed without help.2 So, evidence has been very properly held admissible to show that the injured person, a blacksmith, who had suffered the loss of a finger, was discharged by his employer on returning to work after recovering, on the ground that he was too slow.42 43 Missouri &c. R. Co. v. Johnson (Tex. Civ. App.), 37 S. W. Rep. 771. See also, McLean v. Lewiston, 8 Idaho 472; s. c. 69 Pac. Rep. 478. "Galveston &c. R. Co. v. Clark, 21 Tex. Civ. App. 167; s. c. 51 S. W. Rep. 276. "Keiffert v. Nassau &c. R. Co., 51 App. Div. (N. Y.) 301; s. c. 64 N. Y. Supp. 922. Bailey v. Centerville, 108 Iowa 20; s. c. 78 N. W. Rep. 831. Britton v. Street R. Co., 90 Mich. 159; s. c. 51 N. W. Rep. 276; O'Brien v. Loomis, 43 Mo. App. 29; Wood v. Watertown, 58 Hun (N. Y.) 298; s. c. 34 N. Y. St. Rep. 808; 11 N. Y. Supp. 864; McKenna v. Citizens' Natural Gas Co., 198 Pa. St. 31; s. c. 47 Atl. Rep. 990; Olin v. Bradford City, 24 Pa. Super. Ct. 7. 40 McKenna V. Citizens' Natural Gas Co., 198 Pa. St. 31; s. c. 47 Atl. Rep. 990; Houston &c. R. Co. v. Bird (Tex. Civ. App.), 48 S. W. Rep. 756. 41 Strattner v. Wilmington City Electric Co., 3 Pen. (Del.) 245; s. c. 50 Atl. Rep. 57 (both arms); Wimber v. Iowa Cent. R. Co., 114 Iowa 551; s. c. 87 N. W. Rep. 505 (foot and part of leg). 42 Macon Consol. St. R. Co. V. Barnes, 113 Ga. 212; s. c. 38 S. E. Rep. 756; Batten v. St. Louis Transit Co., 102 Mo. App. 285; s. c. 76 S. W. Rep. 727; Robinson v. St. Louis &c. R. Co., 103 Mo. App. 110: s. c. 77 S. W. Rep. 493; Olin v. Bradford City, 24 Pa. Super. Ct. 7. 43 Southern Car &c. Co. v. Bartlett, 137 Ala. 234; s. c. 34 South. Rep. 20. § 7309. Mortality Tables as Evidence to Show Duration of Life of Injured Person.-Where the earning capacity of the injured person is permanently impaired the question as to the probable duration of his life becomes important, and the jury may be aided in approximating the probable length of the life of the injured person by access to the recognized mortality tables showing his expectancy of life, and such tables are admissible for this purpose.** The determination of the expectancy of life of a minor who sues for permanent personal injuries, by reference to the table of expectancy, must be based upon his actual age, and not upon the age of majority, although, in the absence of evidence of emancipation, he is not entitled to recover for loss of earnings prior to his majority.45 The attention of the jury should not be called to the fact that the injured person was engaged in a hazardous employment, if such is the case, in the absence of evidence that he intended to pursue that employment permanently.*" § 7310. Damages Recoverable by Parties Entitled Thereto-Children-Married Women.-In any case, the plaintiff can only recover for his personal actual loss. If the plaintiff is a minor, to whose services his parents are entitled until he attains his majority, and who therefore is not entitled to the fruits of his labor until that time, that circumstance must be considered by the jury in assessing his damages; otherwise the defendant might be compelled to pay damages twice for the same injury, as his parents may maintain an action for the loss of his services from the time of the injury until his majority." 44 Gulf &c. R. Co. v. Mangham, 29 Tex. Civ. App. 486; s. c. 69 S. W. Rep. 80; Missouri &c. R. Co. v. Scarborough, 29 Tex. Civ. App. 194; s. c. 68 S. W. Rep. 196; Collins Park &c. R. Co. v. Ware, 112 Ga. 663; s. c. 37 S. E. Rep. 975. Where evidence in an action against a village for injuries caused by a defective sidewalk does not show that plaintiff may not recover from her injuries, it is error to allow mortuary tables to be introduced: Foster v. Bellaire, 127 Mich. 13; s. c. 86 N. W. Rep. 383; 8 Det. Leg. N. 203. 45 Swift & Co. v. Holoubek, 55 Neb. 228; s. c. 75 N. W. Rep. 584; 4 Am. Neg. Rep. 509. 40 Louisville &c. Co. v. Gordan, Ky.; s. c. 24 Ky. L. Rep. 1819; 72 S. W. Rep. 311. 47 South Covington &c. R. Co. v. Herrklotz, 104 Ky. 400; s. c. 47 S. W. Rep. 265; Chicago &c. R. Co. v. Krayenbul, 65 Neb. 889; s. c. 91 N. W. Rep. 880; 59 L. R. A. 920; Dollard v. Roberts, 28 N. Y. St. Rep. 569; s. c. 8 N. Y. Supp. 432; Gulf &c. R. Co. v. Johnson, 91 Tex. 569; s. c. 11 Am. & Eng. R. Cas. (N. S.) 291; 44 S. W. Rep. 1067; rev'g s. c. 42 S. W. Rep. 584; 43 S. W. Rep. 583; Hildenbrand v. Marshall, 30 Tex. Civ. App. 135; s. c. 69 S. W. Rep. 492; Houston &c. R. Co. v. Boozer, 70 Tex. 530; s. c. 8 S. W. Rep. 119; Texas &c. R. Co. v. Morin, 66 Tex. 225; s. c. 18 S. W. Rep. 503; Peppercorn v. Black Falls, 89 Wis. 38; s. c. 61 N. W. Rep. 79; Stewart v. Ripon, 38 Wis. 588. The measure of damages recoverable by a father for the negligence of a railway company, resulting in the loss of a leg by his minor son, is the difference in value between the services of the son before and after the injury, until he attains his majority: Texas &c. R. Co. v. Putnam (Tex. Civ. App.), 63 S. W. Rep. 910. The recovery may be had by the infant after his emancipation, and may not be had by one assuming the parental relation toward the infant without legally adopting him." Since the right of the parent to the services of his child terminates when his majority is reached, and damages for injuries thereafter are recoverable in the former infant's own right, it follows that it is error to instruct the jury that the father may recover for probable prospective loss from being compelled to support the child in consequence of the injury, as such an instruction permits a recovery for support after the child's majority.50 In an action by a husband and wife for injuries received by the wife, damages for her personal injury and suffering may be recovered, but the loss of income from her incapacity to labor, and the expenses of her cure, must generally be recovered in an action brought by the husband alone."1 Where a wife seeks to recover such damages, the complaint must allege that for some reason she is entitled to the fruits of her own labor.52 In Illinois, the wife can sue without joining her husband in such an action. But the shock to the feelings of the husband or parent cannot enter as an element of damages in a suit for injuries received by the wife or child, such damages being recoverable only by those who in their own proper persons are injured.** Missouri &c. R. Co. v. Tonahill, 16 Tex. Civ. App. 625; s. c. 3 Am. Neg. Rep. 287; 41 S. W. Rep. 875. 40 Fort Worth Street R. Co. v. Witten, 74 Tex. 202; s. c. 11 S. W. Rep. 1091. Ceigler v. Hopper &c. Co., 90 App. Div. (N. Y.) 379; s. c. 85 N. Y. Supp. 656. 1 Giffen v. Lewiston, 8 Idaho 231; 8. c. 55 Pac. Rep. 545; Wallis v. Westport, 82 Mo. App. 522; Hopkins v. Atlantic &c. R. Co., 36 N. H. 9; Klein v. Jewett, 26 N. J. Eq. 474; St. Louis &c. R. Co. v. Laws (Tex. Civ. App.), 61 S. W. Rep. 498. In a suit for personal injuries received by a married woman, a charge that the measure of damages "is a fair equivalent in money for the permanent impairment of her ability to earn wages and compensation by her own labor and service performed for others than her husband, and independently of her husband, and independently of her duties to her husband, and independently of the care of her children," is not prejudicial; a married woman being entitled to recover for loss of wages: South Covington &c. R. Co. v. Bolt, 22 Ky. L. Rep. 906; s. c. 59 S. W. Rep. 26 (no off. rep.). In Iowa, the common-law rule as stated in the text is changed by statute. Expenses of her cure and damages for loss of her service may be recovered in an action brought in the name of both: McDonald v. Chicago &c. R. Co., 26 Iowa 124. The loss of a woman's capacity to earn money should be considered in estimating damages for alleged injuries, in an action by herself and husband, where her marriage took place after receiving the injuries. Such damage accrued to her individually: Reading v. Pennsylvania R. Co., 52 N. J. L. 264; s. c. 19 Atl. Rep. 321. 52 Uransky v. Dry Dock &c. Co., 118 N. Y. 304; s. c. 28 N. Y. St. Rep. 711; 23 N. E. Rep. 451. |