
    Gerald Dowling et al. v. Arthur Hebert et al.
    Baldwin, King, Murphy, Mellitz and Shea, Js.
    Argued April 10
    decided June 23, 1959
    
      William R. Davis, with whom were Leon RisCassi, Francis J. McVane and Maurice J. Sponzo, for the appellant (plaintiff Anna Choolgian).
    
      Snow G. Munford, for the appellees (defendants).
   Shea, J.

The plaintiffs brought this action to recover damages for personal injuries sustained as a result of an automobile collision on May 13, 1956. The court entered judgment for all the plaintiffs, and from the judgment in her favor Anna Choolgian, hereinafter called the plaintiff, has appealed.

The sole question presented is whether the court erred in failing to award damages for loss or impairment of earning capacity. Before the accident, the plaintiff had worked for a number of years in the Wagon Wheel Restaurant, a family corporation in which she owned stock. Her husband dominated and controlled the corporation. The plaintiff worked an average of thirty-one hours a week, but she did not receive, nor did she expect, any compensation for her services. After the accident and before the trial, the restaurant business was sold. The plaintiff received no consideration from the sale. The reasonable value of the services performed by the plaintiff was $65 a week. Following the accident, the plaintiff, because of her injuries, did not return to the work she had been performing at the restaurant. Her ability to carry on this work would have been affected by her injuries for some time in the future. The plaintiff seeks to correct the finding, but no corrections are warranted.

Upon these facts, the trial court concluded that the plaintiff was not entitled to recover damages for any loss or impairment of her earning capacity because the services being performed by her at the time of the accident were gratuitous. This was error. Lashin v. Corcoran, decided this day. A new trial is required.

There is error in part, the judgment is affirmed except as to the amount of damages awarded and a new trial is ordered limited to that issue.

In this opinion the other judges concurred.  