Cole v. Schaub , 164 Wash. 162 ( 1931 )

I cannot agree with the majority that the instruction given was prejudicially erroneous, nor do the cases cited by the majority, as I read them, meet the present situation. This is not a question of recovery for time lost.

There was ample evidence of permanent injury, and without any proof of prior earning capacity or what might be the subsequent earning capacity, the jury had the right, from the evidence before it, to determine whether the permanent injuries were such as would lessen the earning capacity, whatever that capacity may have been. In other words, a saleswoman afflicted as respondent was shown to be, might perhaps resume the duties of her employment at the former wage; but, by reason of her affliction, she, in a dull season, would be more likely to lose her position or suffer a reduction of salary than if not so afflicted, and, moreover, her working years might, by reasonable inference, be held to be shortened by her disability. If one loses an arm it requires no further evidence to warrant a holding that his capacity for physical labor has been lessened. And so here, a saleswoman with a constantly discharging nose might well be held to be less valuable to her employer, and the lessened value would certainly be reflected in her pay envelope sooner or later.

For these reasons, I dissent.