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Reece v. Nationwide Mutual Insurance Co.12/23/2004
ny evidence that her earning power had been diminished because of the permanent injury. Reece, however, argues that evidence of diminished earning capacity is unnecessary. Citing to Chesapeake, Reece maintains that a permanent impairment of power to earn money follows as a matter of course from a permanent injury. As the medical testimony proved a permanent injury, Reece contends that a submissible jury issue was created. We believe Reece has misconstrued the holding of Chesapeake.
In Chesapeake, appellee suffered an obviously disabling injury . The muscles of appellee's finger, hand, and wrist were weakened, and she was unable to use her hand in performing many daily chores. Appellee failed to introduce specific testimony concerning her permanent impairment of earning power. In such a case, the Court held that "where permanent injury is alleged and shown, permanent impairment of power to earn money follows as a matter of course. To what extent is the question for the jury to be determined by the application of their common knowledge and experience to the facts and circumstances of the case." Id. at 320.
In Herndon v. Waldon, 243 Ky. 312, 47 S.W.2d 1047 (1932), the Court enunciated the general rule:
Permanent injuries, for which recovery may be had in actions of this character, are those that are reasonably certain to be followed by permanent impairment to earn money, or producing permanent and irremedial pain, and to authorize a recovery for such permanent impairment there must be positive and satisfactory evidence thereof. Otherwise, the jury would be permitted, like the witnesses testifying to it, to invade the field of speculation . . . .
Id. at 1049 (emphasis added). Stated differently, to create a submissible issue, the permanent injury must be of the nature that a permanent impairment to earn money would naturally follow therefrom, or the permanent injury must produce permanent or irremedial pain.
In Chesapeake, the injury to appellee's hand was an obviously disabling injury and was the type of injury from which a permanent impairment to earning capacity would naturally follow. By contrast, the disabling effects of Reece's injury were not obvious and a permanent impairment of earning capacity was not readily apparent from such injury. Moreover, Reece's injury was not the type that produced permanent and irremedial pain. Considering the totality of the evidence, we must conclude the trial court did not err by directing a verdict upon Reece's claim for permanent injury.
For the foregoing reasons, the judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR.
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