Florida Cent. & P.R. Co. v. Burney

• Decision Date: 15 November 1895
• Citation: 26 S.E. 730,98 Ga. 1
• Parties: FLORIDA CENT. & P. R. CO. v. BURNEY.
• Court: Georgia Supreme Court

26 S.E. 730

98 Ga. 1

FLORIDA CENT. & P. R. CO. v. BURNEY.

Supreme Court of Georgia

November 15, 1895

Syllabus by the Court.

1. The charge of the court as to the methods of using the mortality and annuity tables was incorrect and misleading, and the error thus committed was not, in view of the evidence and the amount of the verdict rendered in the present case, cured by allowing the plaintiff to arbitrarily write off a portion of the recovery. (a) Forms for instructions suggested.

2. In an action against a railroad company by an employé for personal injuries alleged to have been occasioned by the negligence of a co-employé no presumption of negligence arises against the company until the plaintiff has affirmatively shown that he himself was free from fault.

Error from superior court, Glynn county; J. L. Sweat, Judge.

Action by A. J. Burney against the Florida Central & Peninsular Railroad Company to recover damages for personal injuries. From a judgment for plaintiff, defendant brings error. Reversed.

Crovatt & Whitfield and Denmark, Adams & Freeman, for plaintiff in error.

F. H Harris and Symmes & Bennet, for defendant in error.

LUMPKIN J.

1. The reporter has been directed to prefix to this opinion a statement of the instructions given by the trial judge with reference to the methods of using the mortality and annuity tables. As will be readily perceived upon reading the same these instructions were incorrect and misleading, and, in our judgment, the error committed in giving them was not cured by allowing the plaintiff to arbitrarily write off a portion of the recovery. As cases of tort are constantly arising, both where death has been caused, and also where permanent injuries have been inflicted, occasioning a total destruction of, or a material diminution in, the earning capacity of the injured person, and generally, on the trial of such cases, these tables are introduced in evidence, and as there is much confusion with reference to the manner of using them, we have concluded to undertake the formulation of instructions concerning their use, which, in each class of cases, respectively, may be appropriately given in charge. It must not be understood that in so doing we are presuming to dictate to our brethren of the trial courts as to how they shall charge on this subject, or to prescribe forms which they must feel constrained to follow; but, as we have devoted much study and thought to this particular matter, we venture to hope that the "charges" below suggested may be found helpful. The plaintiff in the present action sought to recover damages for an alleged permanent diminution in his earning capacity; and it was not, therefore, a case in which the value of a life was involved. It will, however, in pursuance of the plan we have adopted, be more convenient to present first suitable instructions concerning the use of the tables in a case where death was caused, and then conclude with instructions appropriate to a case like the one now in hand. These instructions, as a whole, can, by making the needed changes in phraseology, be rendered readily adaptable to a case of tort in which there was no death, but a total destruction of earning capacity. On pages 844, 845, and 846 of 70 Ga., will be found, respectively, the Northampton, the Carlisle, and the Actuaries' mortality tables; and on page 847 is a table "showing the value of annuities on single lives according to the Carlisle table of mortality." In order to avoid complication, we shall frame our "charges" upon the assumption that only the tables on pages 845 and 847 are before the jury, and shall designate the last simply the "Annuity Table." Of course, if the other tables mentioned, or tables which have not been mentioned at all, are properly in evidence, the instructions may be varied accordingly. With reference to the "6 per cent." and "7 per Cent." columns in the annuity table, we have thought it best that juries should be restricted to the use of the latter only, because 7 per cent. is the legal rate of interest in this state when none is fixed by contract in writing, and calculations of annuities based upon any other rate would be purely arbitrary. Indeed, the table in the book referred to might have had, in addition to those it now contains, a 5 per cent. column and an 8 per cent. column, or any other number of columns based on different rates of interest, in which event there would have been no safe criterion, save that just indicated, as to which of them a jury should select. With the table as it stands, limited to the two columns, there is no good reason for taking the one rather than the other, except that which is stated above. The instructions we have undertaken to frame for the guidance of the jury in that class of cases in which the plaintiff seeks to recover for the homicide of another have, or course, been prepared with reference to the rule of law prevailing in this state which allows such plaintiff to recover "the full value of the life of the deceased, as shown by the evidence, without any deduction for necessary or other personal expenses of the deceased, had he lived." Code, § 2971; Acts 1887, p. 43. Assuming, then, that an action to recover the value of a life is on trial, and that the Carlisle mortality table and the annuity table are in evidence, it would, we think, be proper to give the following instructions, which (for a purpose hereinafter appearing) we will divide, somewhat arbitrarily, into paragraphs, and designate as "Charge 1":

"(1) In case you should find that the defendant is liable, it will be your duty to determine what amount of damages should be allowed.

"(2) Certain tables are in evidence before you. One of them is the Carlisle mortality table, and the other is a table showing the value of annuities. We will call the first the 'Mortality Table,' and the second the 'Annuity Table.' They are not binding upon you, and you are not obliged to use them, or either of them. If you use neither, you need not consider the instructions now about to be given; but as these tables are in evidence, and you have the right to avail yourselves of the assistance to be derived from them, it becomes proper to explain them, and inform you in what manner and for what purpose each can be made serviceable. Care, however, must be taken to avoid confusion, and you should be very particular not to use one of them where the other ought to be used. You are also cautioned that you cannot advantageously use both in one and the same calculation. While the proper use of these tables separately ought to lead to the same result, using them conjunctively or indiscriminately in the same calculation, or without understanding the real purposes they are respectively intended to subserve, will surely lead to error.

"(3) You should ascertain from the evidence the annual earning capacity of the deceased,--that is, seek honestly to reach a just conclusion from the facts before you as to what amount should be regarded as fairly representing his yearly income from his own labor to the end of his life, if he had not been killed; and, in so doing, give due weight to the various contingencies which will be pointed out before concluding these instructions. It is proper to remark just here that the age of the deceased at the time of the killing, and his probable expectancy of life, may be considered in arriving at his average yearly earnings, if in your opinion, in view of all the evidence, his earning capacity would have varied at different periods of his life between the time he was killed and the time he would have died in the course of nature.

"(4) Another and more direct use which you can make of the figures representing such probable expectancy of life will presently be stated. In fixing upon this expectancy, you may consult the mortality table, which will now be explained. This table is designed to show the expectancy of life which may be entertained by average persons of given ages. The only material information you can derive from it is the time which an average person of equal age with the one under consideration in the present case may be expected to live. This table has two sets of columns, marked, respectively, 'Age' and 'Expectation Years.' If it should be desired to ascertain how long a person of average health and constitution, aged 33 years, would probably live, you would look for the figures '33' in the 'Age' column; and opposite these figures, in the 'Expectation Years' column, on the right of the 'Age' column, you would find the figures '32.36,' which would indicate that such a person probably had 32 and 36/100 years to live. In the nature of

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