Collins v. McPherson

• Decision Date: 30 November 1954
• Docket Number: No. 35427,No. 2,35427,2
• Citation: 91 Ga.App. 347,85 S.E.2d 552
• Parties: COLLINS et al. v. McPHERSON
• Court: Georgia Court of Appeals

Page 552

85 S.E.2d 552

91 Ga.App. 347

COLLINS et al. v. McPHERSON.

No. 35427.

Court of Appeals of Georgia, Division No. 2.

Nov. 30, 1954.

Rehearing Denied Dec. 17, 1954.

Syllabus by the Court.

1. In the case of a parent suing for the death of a minor child, it is not necessary for the evidence to show what the future earnings might be in cases where there is no selection of a vocation or other facts from which future earnings can be determined.

2. (a) Where there is no evidence from which future earnings can be determined, it is not a proper basis for the measure of damages to require the jury to determine some amount without evidence in accordance with the expectancy of such minor and then reduce that unknown quantity by the known quantity of 7% per annum to present cash value.

(b) The rule that the full value of the life of the deceased in wrongful-death cases, under which an amount can be determined by evidence showing the future earnings of the deceased throughout the period of life expectancy and that amount reduced to its present cash value, applies only in cases where such deceased has reached the age for some earning capacity, so that the jury may estimate the amount based on direct evidence. This rule does not apply where the deceased is a child of such tender years that no earning capacity has been reached, and where there can be no evidence of future earning capacity.

(c) Where there is no evidence relating to future earnings or earning capacity, it is not error for the trial court to fail to charge that the deceased's ability to labor and earn money in the future might be affected in the declining years and thereby decreased.

Mrs. Clarence McPherson filed suit in the Superior Court of Bartow County for damages for the death of her seven-year-old daughter, the latter having been struck by a motor vehicle belonging to the defendants, Harry and Jack Collins, d/b/a Lakeside Fruit and Produce Company, and the defendant driver, Ernest D. Long. Upon the trial of the case a verdict was returned in favor of the plaintiff in the amount of $20,000, the total sum sought as a recovery. The defendants filed a motion for new trial which was amended by adding of three special grounds. The denial of this motion is assigned as error, and only the special grounds are considered here, since the general grounds, not having been argued, are treated as abandoned.

Ingram & Tull, Cartersville, T. J. Long, Atlanta, for plaintiff in error.

Davis & Cullens, Cartersville, for defendant in error.

TOWNSEND, Judge.

1. Error is assigned upon the charge of the court: (1) on the ground that the charge permitted the jury to award the full amount of damages sued for without instructing the jury that any amount awarded the plaintiff as the full value of the life of her deceased daughter should be reduced to present cash value, using as a basis of calculation 7% interest, and failed to instruct the jury that any amount should be reduced to present cash value; and (2) that it was further erroneous to fail to call the jury's attention to the fact that the deceased's ability to labor and earn money in the future might be affected in the declining years of her life and thereby decreased. On the subject of damages the court charged only the provisions of Code §§ 105-1307 and 105-1308, as follows: 'I charge you that a mother, or if no mother, a father, may recover for the homicide of a child, minor or sui juris, unless said child shall leave a wife, husband or child. The mother or father shall be entitled to recover the full value of the life of such child. The full value of the life of the decedent, as shown by the evidence, is the full value of the life of the decedent, that is, the deceased child, without deduction for necessary or personal expenses of the decedent had she lived.'

The only evidence in the case bearing upon the value of the life of the child was that she was seven years of age and had, according to the mortality tables, a life expectancy of 50.8 years. Her mother testified that she had performed services by helping in the yard, helping with the flowers, running errands, bringing in coal, ironing towels and other flat pieces, and other like services. The act of 1952, Ga.L.1952, p. 54, amending Code § 105-1307 makes it unnecessary in a suit by a parent for the homicide of a child to prove dependency and contribution to support since the passage thereof, but such evidence may be considered by the jury in connection with evidence of the age of the deceased as bearing upon her capability and precocity, thus yielding some inference as to her mental and physical potentialities. In J. S. Betts Co. v. Hancock, 139 Ga. 198, 207, 77 S.E. 77, the case of Buckry-Ellis v. Missouri Pac. Ry. Co., 158 Mo.App. 499, 138 S.W. 912, was quoted with approval, to the effect that, as to infants of tender years, it is impossible to give evidence of the pecuniary value of the probable loss, and therefore the question of damages for loss on account of impairment of future earning capacity is left to the sound judgment, experience, and conscience of the jury without any proof thereof whatever, and the Supreme Court then points out that a distinction should be expressly recognized, on the question of the loss resulting from the injury, between adults, as to whom some proof of earning capacity is available, and infants whose earning capacity is yet untried. In Seaboard Air-Line Ry. Co. v. Sarman, 38 Ga.App. 637, 639(11), 144 S.E. 810, 814, it is held: 'The value to a parent of the services of a minor child is not determinable solely from evidence as to the amount of money the child earns or is capable of earning during its minority. The value of a child's services may be determined from all the evidence, including evidence as to the age and precocity of the child, its earning capacity, and the services rendered by it, the circumstances of the family and the living conditions, and 'from experience and knowledge of human affairs on the part of the jury.' Savannah Electric Co. v. Dixon, 18 Ga.App. 314(3), 89 S.E. 373. Where the court, in the charge, virtually so instructed the jury, the charge was not subject to exception as being error in that it failed to instruct the jury as to any rule by which the amount of damages could be calculated or by which the value of the services could be reduced to a present cash value.' It follows, therefore that, in a suit by a mother for the wrongful death of a child of such tender years that no earning capacity has been established or can be directly ascertained, it is not necessary for the plaintiff to produce evidence as to earning capacity in order to recover; but the value of the child's life must be established by the enlightened conscience of an impartial jury as applied to the evidence in the case, including testimony as to such child's age, life expectancy, precocity, health, mental and physical development, family circumstances, and from the experience and knowledge of human affairs on the part of the jury.

2. (a) Since there is not, and cannot be in the very nature of this and other like cases, any evidence from which a jury could mathematically determine the value of the life of the deceased infant on the...