Leizear v. Butler

Bruñe, C. J., concurring in part and dissenting in part filed the following opinion: I am unable to agree with the view of the majority that the admission of the testimony that Leizear had been compensated for the time he was absent from work because of his disability was not prejudicial. The appellees claimed in urging the admission of this evidence that it had “a great deal” of “probative value” and that without it the plaintiff’s counsel would have “the jury believe that this man hasn’t received any money for those two weeks.” The evidence is conceded by the majority to have been inadmissible for that purpose and it is also conceded by the majority that a proper foundation for its admission as supporting a claim of malingering had not been established. The trial court gave an instruction excluding its consideration “with respect to loss of earnings” and coupled this with the statement “but it is his earning capacity which is compensable.” The court’s instructions on damages for pain and suffering were not in the usual form and seem to have been tied in very closely with future health and possible disability. It is difficult to tell whether past pain and suffering were even treated as separate elements of damages in the instructions