National Upholstery Co. v. Padgett

• Decision Date: 07 January 1964
• Docket Number: No. 40415,No. 1,40415,1
• Parties: NATIONAL UPHOLSTERY COMPANY v. Edwin D. PADGETT, by next friend
• Court: Georgia Court of Appeals

Page 856

134 S.E.2d 856

108 Ga.App. 857

NATIONAL UPHOLSTERY COMPANY v. Edwin D. PADGETT, by next friend

No. 40415.

Court of Appeals of Georgia, Division No. 1.

Jan. 7, 1964.

Rehearing Denied Jan. 22, 1964.

Syllabus by the Court

The court did not err in overruling the defendant's general and special demurrers to the petition as amended.

Edwin Donald Padgett, by next friend, Mrs. Myrtice Padgett, sued Ray Quarterman White and National Upholstery Company to recover damages for injuries allegedly sustained in a collision between an automobile, driven by defendant White and in which the plaintiff was a guest passenger, and the defendant company's parked truck.

The petition, as amended four times, alleged substantially as follows: That on December 11, 1962 at about 9:25 p. m., the plaintiff was sitting in the front center seat of a 1962 Tudor Ford automobile which was being driven by defendant White in a southerly direction along U. S. Highway #1, a State-aid highway, within the city limits of Alma, Georgia; that the defendant, by its driver and agent, had parked its van type truck on the right-hand, or western, side of the road, headed south, with its right-hand side one foot from the curb and its left-hand rear side 11 feet from the center line (in violation of Code Ann. § 68-1670(a)(15)) and 9 feet from the curb; that due to a misting rain and fog, visibility was restricted to no more than 400 feet; that the rear of the truck was covered with a dark colored canvas which reflected no light and there were no lights burning on the truck which were visible from the rear; that as the automobile passed the intersection of Georgia Highway #32, or 16th Street, the driver suddenly accelerated to the excessive and unlawful speed of 40 m. p. h.; that the right-hand front fender of the automobile struck the left-hand rear portion of the truck, killing the passenger seated on the plaintiff's right-hand side; that the point of impact extended 18 inches inboard from the truck's left-hand rear side; that, although the plaintiff was looking ahead, he did not see the truck; that all of the plaintiff's alleged injuries, damages and loss of earnings were proximately caused by the joint, several and concurrent acts of negligence of the two defendants; that the negligence of the defendant company consisted of (1) violation of Code Ann. § 68-1710(b) (failure to display a light visible for 500 feet when visibility is less than 500 feet); (2) failure to place flares or warning lights to the rear of the truck after dark with vision obscured by the misty, foggy and rainy weather; (3) failure to use ordinary care in operating and parking the truck along the roadway with due regard for the safety of others traveling along such roadway; (4) violation of Code Ann. § 68-1670(a)(15) (parking the truck 11 feet from the center line); that at the time of the collision the plaintiff was a healthy, able-bodied, 18 year old high school senior and was earning $10 per week working after school as a part-time service station attendant; that the plaintiff, with a high school education, working full time, would have been capable of earning not less than $50 per week for the remainder of his life; that, prior to the collision, he had been promised a job at Padgett Pontiac Company, Inc., which paid at least $50 per week; that he was going to college in the 1963-64 school year to further prepare himself to earn a living and that his injuries did in high school and will in the future interfere with his ability to study, learn, and otherwise make a living; that the plaintiff's earning capacity has been permanently reduced by not less than 10%, amounting to $260 per year for the remainder of his expected life span, or a total sum of $11,146.

The plaintiff in error demurred generally and specially to the petition, renewing its demurrer after each amendment thereto. To the judgment of the court overruling its general demurrer and three special demurrers to the petition as finally amended defendant excepts.

Sharpe & Sharpe, T. Ross Sharpe, T. Malone Sharpe, Marvin Hartley, Jr., Lyons, for plaintiff in error.

Barrie L. Jones, Alma, for defendant in error.

FELTON, Chief Judge.

1. The first two special demurrers attack the allegations of paragraphs 19 and 20 of the petition as amended, which allege the plaintiff's reduced earning capacity as a result of the injuries sustained. The plaintiff in error contends that these allegations are speculative and have no supportable basis in fact nor a proper foundation therefor, it not being stated how or in what manner the plaintiff will have a permanent partial disability, nor facts to justify the setting of a definite monetary loss therefrom. Concerning the contention that it is not shown in what manner the plaintiff will have a permanent partial disability, it is alleged that the plaintiff has a depressed, concave fracture on the front of his head which is soft and pulpy and which results in painful headaches following any bodily exercise and in mental confusion such as to cause him to forget incidents and facts recently learned, and causing him to be vague and uncertain in conversations with others, halting in speech, and unable to 'rationalize' as well as previously. This, as well as the other alleged injuries, was alleged to be permanent in nature, for which damages for pain and suffering are sought. The injuries alleged are sufficient to support the allegation of a permanent partial disability.

We will now consider the contention that the allegation as to the basis of the amount of the plaintiff's reduced earning capacity was speculative and unclear as to the nature of the damages sought. The statement that '[t]here is only one compensation for permanent injury as related to ability to labor, earning capacity, or future lost earnings, but that one compensation in the majority of cases involves all three elements, and the elements are arrived at in a different manner because of the exigencies of the case,' does not mean that there may not be recovery for pain and suffering due to loss of ability to labor and loss of earning capacity resulting in pecuniary loss determined from sufficient evidence. Hunt v. Williams, 104 Ga.App. 442, 450, 122 S.E.2d 149. The division of compensation into elements (three in the Hunt case, supra) might be clarified by using only two major divisions, namely: (a) pain and suffering caused by loss of or decreased capacity to labor (i. e., enforced idleness, partial or complete), and (b) lost future earnings. For the purpose of proof, element (b) might be subdivided, as was done in Hunt v. Williams, supra, into (1) decreased earning capacity resulting in pecuniary loss (which must be proved by evidence from which the jury 'can arrive at, estimate, or reasonably infer' a pecuniary value for the loss) and (2) loss of definite earnings that would have been received in the future but for the injury (which is determined from evidence as to what plaintiff's actual future earnings would have been, e. g., a contract to work at a given salary for a certain period in the future). However, for purposes of pleading, with which we are concerned in the case at bar, allegations of decreased earning capacity would suffice to include both (1) and (2) above, with the evidence adduced determining the basis and the extent of the recovery. Even if the plaintiff should produce no evidence from which a jury could determine a pecuniary value for loss of his earning capacity, the courts have approved of including damages for decreased ability to labor as an element of pain and suffering to be measured by the enlightened conscience of the impartial jurors in such a case. Langran v. Hodges, 60 Ga.App. 567, 4 S.E.2d 489; City Council of Augusta v. Drawdy, 75 Ga.App. 543, 549, 43 S.E.2d 569; Hunt v. Williams, 104 Ga.App. p. 451, 122 S.E.2d p. 155, supra. This is especially true in the case of a plaintiff such as the present one, who was a senior in high school and had never held a full-time job. The Supreme Court has approved the following charge as a correct statement of the law: 'Where the injured party is too young to have selected an avocation, [vocation], 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...