City Of Atlanta v. Jolly, (No. 18917.)

• Decision Date: 09 February 1929
• Docket Number: (No. 18917.)
• Citation: 39 Ga.App. 282,146 S.E. 770
• Parties: CITY OF ATLANTA. v. JOLLY.
• Court: Georgia Court of Appeals

39 Ga.App. 282

146 S.E. 770

CITY OF ATLANTA.

v.JOLLY.

(No. 18917.)

Court of Appeals of Georgia, Division No. 2.

Feb. 9, 1929.

(Syllabus by the Court.)

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Action by Mrs. W. H. Jolly against the City of Atlanta. Judgment for plaintiff, defendant's motion for new trial was overruled, and defendant brings error. Reversed.

See, also, 141 S. E. 223.

J. L. Mayson and C. S. Winn, both of Atlanta, for plaintiff in error.

Hewlett & Dennis and C. L. Padgett, all of Atlanta, for defendant in error.

STEPHENS, J. [1] 1. While a person injured may, as compensation for damage in the nature of pain and suffering, without any proof of pecuniary loss, recover damages for impaired ability to work due to a physical injury, as was held in City Council of Augusta v. Owens, 111 Ga. 464, 36 S. E. 830, yet, where a recovery is sought for pecuniary loss resulting from an impaired capacity to earn money, resulting from a physical injury, there must appear some data from which the jury can arrive at the pecuniary value of the injured person's earning capacity both before and after the injury. Rome Railway & Light Co. v. Duke, 26 Ga. App. 52, 105 S. E. 386; Atlantic Coast Line Railroad v. Anderson, 35 Ga. App. 292 (4), 133 S. E. 63.

While proof of the plaintiff's actual earnings, either before or after the injury, is not essential to the establishment of the value of the plaintiff's decreased earning capacity, there must nevertheless appear some evidence, either direct or circumstantial, tending to show what the plaintiff was capable of earning both before and after the injury. The mere fact that the plaintiff has suffered a physical injury, such as a sprained or fractured ankle, which might permanently impair her ability to walk or to enjoy the normal use of both feet, and that she isthereby prevented from performing the duties of her employment at the time of the injury, in the absence of any evidence either direct or circumstantial tending to show what the plaintiff earned in her business, or other evidence from which the jury could estimate the pecuniary value of the plaintiff's earning capacity, either before or after the injury, even if sufficient to establish a diminished earning capacity as a result of the injury, is insufficient to establish its pecuniary value.

Where the only evidence tending to show a diminution of the plaintiff's capacity to earn money as a result of a physical injury is that at the time of the...