Jones v. Hutchins, 37846

• Decision Date: 15 January 1960
• Docket Number: No. 37846,2,Nos. 1,37846,s. 1
• Parties: Mrs. Benton JONES v. Mrs. Jessie HUTCHINS
• Court: Georgia Court of Appeals

Page 475

113 S.E.2d 475

101 Ga.App. 141

Mrs. Benton JONES v. Mrs. Jessie HUTCHINS.

No. 37846.

Court of Appeals of Georgia, Division Nos. 1, 2.

Jan. 15, 1960.

Rehearing Denied Jan. 29, 1960.

Syllabus by the Court.

1. Where as a result of physical injury there is a permanent impairment of the capacity to work and labor, although there is no pecuniary loss resulting therefrom, the impairment is compensable as an element of mental pain and suffering.

2. Where damages are sought as a result of physical injury for permanent impairment of earning capacity, an instruction on this issue is authorized where there is evidence of the plaintiff's earnings before the injury, the amount and nature of her work, the percentage of disability resulting from the injury, and the manner in which her earning capacity has been decreased as a result, and this is true although at the time of trial there is no evidence as to actual decreased earnings.

3. In such a case, where it appears that the plaintiff will continue to labor and earn money and the amount in which her ability to do so has been decreased percentagewise, it is not error to charge that in considering the extent of the diminution of the capacity to earn money the jury may consider the reasonable value of such loss of earnings reduced to present cash value, as against the objection that there is no evidence as to loss of future earnings.

This action was brought in the City Court of Louisville by the plaintiff Mrs. Jessie Hutchins against the defendant Mrs. Benton Jones on account of injuries sustained in an automobile collision occurring in the City of Bartow, Jefferson County. The plaintiff was seeking damages for loss of time following the injury, medical and nursing expenses, and pain and suffering. By amendment the plaintiff alleged that the injury to her leg was permanent in nature, alleged her life expectancy, and that she will be disabled at least 10% for the remainder of her life, the value of this disability on an annuity basis, and she sought damages for loss of capacity to work and earn money in the additional sum of $2,868.58.

The jury trying the case rendered a verdict for the plaintiff. The defendant filed a motion for new trial on the general grounds which was amended by the addition of one special ground, and the general grounds were subsequently abandoned. The special ground assigns error on the charge of the court as follows: 'If the jury should find the plaintiff has suffered injury to her person that will incapacitate her or reduce her earning capacity for a time extending into the future, the jury would determine the extent of the diminution of the capacity to earn money, for how long a time that loss or diminution will continue, and the reasonable value of such loss of earnings. Having done that, the jury would reduce that loss to its present value.'

Error was assigned on this instruction on the ground that there was no evidence introduced as to the earnings or earning capacity of the plaintiff after her injuries, no evidence of permanent diminution of her capacity to earn money, no evidence which would authorize an award as to future lost earnings or the pecuniary value of any diminution of her ability to earn money; that it authorized the jury to find an element of damages not warranted by the evidence, and was misleading and confusing because there was no evidence authorizing the jury to apply the formula for reducing lost future earnings to present cash value by means of the annuity table. The motion for new trial as amended was denied and this judgment is assigned as error.

Gordon Lanier, Bartow, T. Reuben Burnside, Thomson, Carlton G. Matthews, Jr., Wrens, Fulcher, Fulcher, Hagler & Harper, Augusta, for plaintiff in error.

Hull, Willingham, Towill & Norman, Robert C. Norman, Augusta, Abbot & Abbot, James C. Abbot, Louisville, for defendant in error.

TOWNSEND, Judge.

1. In the original petition the plaintiff alleged that the knee and leg injury were partially permanent and she could not determine the extent of disability. In addition to reimbursement for her expenses she sued only for damages for pain and suffering. By amendment she asked damages for loss of earning capacity based on a pecuniary decrease in earnings to be received reduced to its present cash value. The instruction complained of was undoubtedly given under this pleading, and the question is whether there was any evidence in the record to support it.

Early in the history of negligence law in this State plaintiffs were confronted with situations in which they were, either because of infancy, coverture, or like reasons, unable to show a present ability either to embark on gainful employment, or to retain the proceeds of their labor. See Metropolitan St. R. Co. v. Johnson, 90 Ga. 500, 508, 16 S.E. 49. In Atlanta St. Ry. Co. v. Jacobs, 88 Ga. 647, 650, 652, 15 S.E. 825, 826, the court charged: 'A physical injury which impairs the capacity of a married woman to labor is classified by the law with pain and suffering. It is not to be measured by pecuniary earnings, for such earnings, as a general rule, belong to the husband, and the right of action for the loss is in him, but the wife herself has such an interest in her working capacity as that she can recover something, in a proper case, for its impairment, and what she is allowed ought to be more or less according to the nature of the injury and the length of time during which the pain and deprivation is likely to continue.' The court held: 'It seems to us that the loss or material impairment of any power or faculty is matter for compensation irrespective of any fruits, pecuniary or otherwise, which the exercise of the power or faculty might produce; and irrespective, also, of any conscious pain or suffering which the loss or impairment might occasion.' As to an infant, the following charge was approved in Western & Atlantic R. Co. v. Young, 81 Ga. 397(4)(411), 7 S.E. 912, 12 Am.St.Rep. 320: 'Where the injured party is too young to have selected an avocation, or to begin to illustrate, by his labor, his wage earning capacity, the matter of the amount of damages for a permanent injury rests in the sound discretion of the jury, to be exercised in the light of their common observation and experience, and aiming to compensate the plaintiff for the injury actually sustained.' The court held that 'impaired capacity to pursue the ordinary avocations of life' might be compensated for as a part of the pain and suffering. The rule, first expressed in our law in order to award compensation for permanent injury where there was no earning capacity as such, has been fully recognized up to the present time. Atlanta & W. P. R. Co. v. Haralson, 133 Ga. 231, 65 S.E. 437; Railway Exp. Agency Inc. v. Standridge, 68 Ga.App. 836, 837, 24 S.E.2d 504; City of Manchester v. Beavers, 38 Ga.App. 337, 342, 144 S.E. 11; Wall Realty Co. v. Leslie, 54 Ga.App. 560(3), 188 S.E. 600; Chancey v. Shirah, 96 Ga.App. 91, 95, 99 S.E.2d 365; City Council of Augusta v. Drawdy, 75 Ga.App. 543, 549, 43 S.E.2d 569.

2. A different problem is presented where the plaintiff who has suffered permanent injury which will by its nature tend to lessen the amount he may be expected to receive during his lifetime as a result of gainful employment seeks compensation for such injury, and where what the plaintiff actually earns or will earn and his 'earning capacity' or capacity to gain a livelihood as the result of his work and labor tend to equate with each other. In such a case it is entirely possible that the evidence will show facts from which a mathematical calculation may be projected as to loss of future earnings, and such evidence, of course, is always sufficient on which to base an instruction as to loss of such future earnings. See Southern Ry. Co. v. groover, 41 Ga.App. 746(4), 154 S.E. 706; Pollard v. Gammon, 63 Ga.App. 852, 864, 12 S.E.2d 624; Draper Canning Co. v. Dempsey, 91 Ga.App. 593, 597, 86 S.E.2d 678.

The difficulty arises in that large class of cases, approaching a majority, in which the plaintiff has obviously been permanently injured in a way and manner which the jury through common experience knows will tend over the plaintiff's lifetime to decrease his capacity to earn a living in the occupation which the evidence shows him to engage in, and yet the evidence fails to show any actual mathematical loss at the time of trial which may be projected as such into the future. The question then arises whether this court has applied too stringently the rule that there must be evidence on which to base an instruction to the jury that they may compensate for such loss, so as to preclude the plaintiff from recovery in any case where he cannot mathematically show a pecuniary loss at the time of trial which may itself be projected into the future. That this court has done so will be seen from cases later discussed here. The result has been reached by considering 'loss of earning capacity' and 'loss of future earnings' as synonymous. See Western & Atlantic R. v. Hart, 95 Ga.App. 810, 821, 99 S.E.2d 302, 309.

Early Supreme Court cases show no such insistence upon exactitude in determining loss of earning capacity. The phrase first appears, so far as our research has indicated in Brush Electric Light, etc., Co. v. Simonsohn, 107 Ga. 70, 73, 32 S.E. 902, where a charge to the effect that mental suffering 'which a man may have from the consciousness that his earning capacity is injured for life' is compensable as pain and suffering. The charge was held correct, among other reasons, because the court also charged in connection therewith the following: 'You can give damages for diminution of earning capacity, if the evidence justifies you to find that his earning capacity has been diminished, and that defendant is liable therefor.'

We think this case enunciates the true rule, and one from which the Supreme Court, at least, has never departed. What it is...