Atlantic Coast Line R. Co. v. Anderson

• Decision Date: 20 April 1926
• Docket Number: 16773.
• Parties: ATLANTIC COAST LINE R. CO. v. ANDERSON.
• Court: Georgia Court of Appeals

133 S.E. 63

35 Ga.App. 292

ATLANTIC COAST LINE R. CO. v. ANDERSON.

No. 16773.

Court of Appeals of Georgia, Second Division

April 20, 1926

Syllabus by the Court.

Under the evidence, the jury were authorized to find the defendant liable.

Evidence that the plaintiff had no education or profession was relevant and admissible for the purpose of showing that in his efforts to earn money he would be restricted to manual labor, and thus of illustrating a diminution of his earning capacity as a result of the injury to his hand.

The petition contained enough, by the allegations expressly made and by those implied, to admit evidence of the plaintiff's age and life expectancy. His age being proved, and it appearing from the evidence that his injury is permanent, and the evidence tending to show, also, that it will result in permanent pain and suffering, the court properly admitted in evidence the mortality tables "to aid the jury in dealing with the element of time in their computation of the damages."

But there being no evidence of the extent of the plaintiff's loss because of diminished earning capacity, it was error to charge the jury that they were authorized to consider the mortality tables "in computing what amount, if any, the plaintiff is entitled to recover for diminished capacity to labor and earn money." Other charges submitting to the jury the question of the plaintiff's right to recover damages for such cause were also erroneous, as being unauthorized by the evidence.

The court charged the jury as follows: "If you should find from the evidence, that both the plaintiff and the defendant were negligent in causing the injury to the plaintiff, if he was injured as alleged, and that the plaintiff could not have avoided the injury by the exercise of ordinary care on his part, and should further find, from the evidence, that the negligence of the defendant was greater than that of the plaintiff, you would be authorized to find for the plaintiff but it would be your duty in that event to diminish the damages found for the plaintiff in proportion to the default or negligence attributed to him." Held: This instruction was not erroneous as contravening the rule laid down in Americus, etc., R. Co. v. Luckie, 87 Ga. 6 13 S.E. 105, nor did it eliminate or exclude the defense that the plaintiff's injury was brought about by his own carelessness amounting to a failure to exercise ordinary care.

The court erred, however, under the pleadings and the evidence, in not charging the jury that, if the plaintiff's injury was brought about by his own carelessness amounting to a failure to exercise ordinary care, he could not recover.

No other error appears. For the reasons pointed out in headnotes 4 and 6, and in the corresponding divisions of the opinion, the court erred in overruling the defendant's motion for a new trial.

Error from Superior Court, Ware County; Harry D. Reed, Judge.

Suit by J. O. Anderson against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed.

Wilson, Bennett & Pedrick, of Waycross, and Bennet, Twitty & Reese, of Brunswick, for plaintiff in error.

Jas. R. Thomas & Son, of Jesup, for defendant in error.

BELL J.

1. It will serve no useful purpose to discuss the sufficiency of the evidence. We have examined the evidence carefully, and are satisfied that under it the jury were authorized to find the defendant liable.

2. The defendant complains in the first ground of the amendment to the motion for a new trial that the court erred in allowing the plaintiff to testify that he had no education or profession. The evidence was objected to as being irrelevant and immaterial to any issue in the case, and prejudicial. We do not think there was any error in the court's ruling. It might possibly be upheld merely upon the theory that the plaintiff was entitled to prove the allegations of his petition.

"Testimony is admissible which tends to prove a fact alleged in the petition, irrespective of *** whether, when admitted, it tends to establish a right to recover or not." Tifton Ry. Co. v. Butler, 4 Ga.App. 191 (4d), 60 S.E. 1087.

See, also, Fleming v. Roberts, 114 Ga. 634 (3), 40 S.E. 792; Mayor, etc., of Macon v. Melton, 115 Ga. 153 (2), 41 S.E. 499. But, regardless of whether this rule of practice is applicable, the testimony was admissible for the purpose of showing that the plaintiff, in his efforts to earn money, would be restricted to manual labor, and thus was illustrative of the diminution of his earning capacity as a result of the injury to his hand. See L. & N. R. Co. v. Smith, 136 Ga. 455 (1), 71 S.E. 774; M., D. & S. R. Co. v. Musgrove, 145 Ga. 647, (2), 89 S.E. 767.

3. In the second special ground of the motion for a new trial it is alleged that the court erred in admitting in evidence the mortality tables as contained in 70 Ga. 845, because, as objected at the time, the petition contained no allegations that would authorize such evidence, and there was no sufficient evidence of decreased earnings or of decreased earning capacity by reason of the injury. The plaintiff sought to recover damages not only for actual lost time and for the loss which he would sustain in the future as a result of diminished earning capacity, but also for pain and suffering, including that to which he would be subjected during life, through consciousness of the disfigured member; and, the plaintiff having testified to his age at the time of the injury, and it appearing from the evidence that the injury was received as alleged and was permanent, the mortality tables were admissible in evidence, although the petition contained no direct averment either as to the plaintiff's age or as to his life expectancy, and although there may have been no evidence of the extent of the diminution of his earning capacity. In the absence of demurrer, the petition contained enough, by the allegations expressly made and by those implied, to admit evidence as to the plaintiff's age and expectancy. See Cook v. Winter, 68 Ga. 259 (1); N.C. & St. L. R. Co. v. Miller, 120 Ga. 453 (4), 47 S.E. 959, 67 L.R.A. 87, 1 Ann.Cas. 210; Bell v. State Life Ins. Co. of Indianapolis, 24 Ga.App. 497 (5), 101 S.E. 541; Atlanta Street R. Co. v. Jacobs, 88 Ga. 647 (1), 15 S.E. 825. And when there is evidence tending to show that the injury is permanent, and that it will result in permanent pain and suffering, the mortality tables are admissible in evidence, in connection with proof of the injured person's age, "to aid the jury in dealing with the element of time in their computation of the damages" to be allowed for the pain and suffering, notwithstanding there may be no sufficient proof of lost future earnings. Southern Ry. Co. v. Wright, 6 Ga.App. 172 (4), 64 S.E. 703; Powell v. Augusta, etc., R. Co., 77 Ga. 192 (10), 3 S.E. 757; City Council of Augusta v. Owens, 111 Ga. 464 (8), 36 S.E. 830; Pidcock v. West, 24 Ga.App. 785 (4), 102 S.E. 360. In Southern Ry. Co. v. Wright, supra, Judge Russell compared the decisions in M., D. & S. v. Moore, 99 Ga. 229 (1), 25 S.E. 460, and Atlanta, Knoxville, etc., R. Co. v. Gardner, 122 Ga. 82 (10), 49 S.E. 818, with the earlier Powell Case, supra, and concluded that the Powell Case was controlling upon the identical question that is now again up for decision. If the plaintiff had altogether omitted from his suit any claim for damages for the loss of future earnings, he would not on that account have been prevented from relying upon the mortality tables for the purpose of showing the probable duration of his pain and suffering, his age being proved; and it follows that he is not to be denied the right to use such evidence merely because he may not have submitted evidence to authorize a recovery of the other element of damage sued for. It seems there should be some sort of evidence of expectancy before there could be a recovery for any permanent cause relating to a personal injury. Savannah, etc., Ry. v. Stewart, 71 Ga. 427 (1).

4. In other grounds of the motion the defendant assigns error on certain excerpts from the court's charge, submitting the question of the plaintiff's right to recover for the alleged loss of earnings as the result of his diminished earning capacity, and instructing the jury that they might, if they wished to do so, refer to the mortality tables "in computing what amount, if anything, the plaintiff is entitled to recover for diminished capacity to labor and earn money." The exceptions are that there was no evidence to warrant such instructions. Save the proof as to the nature of the injury, which amounted finally to the loss only of a finger, but which was still "tender" at the time of the trial, the following testimony by the plaintiff was all the evidence upon the question of future loss by reason of permanently diminished earning capacity:

"I went back to work as soon as the doctor at the hospital told me to. I was earning 47 cents an hour, and $3.76 a day. *** I worked for the Coast Line after that. I worked about three months; I guess two or three months after that. I am now working in Lake City, Fla., as a drug clerk. I had never suffered any injury to that hand before. *** I am not a druggist; only a clerk. When I went back to work [for the defendant] I took the same job. *** I was paid the same wages as before. *** I cannot perform the same kind of manual labor that I could before this injury. As a result of my hand being in its condition, my earning capacity has been diminished. Before the injury, I hadn't done nothing, except I farmed, and then I drug clerked. I cannot do the work even in the drug store I could before. It bothers me in wrapping packages and everything. I haven't any education or profession; my labor is all that I have to

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