Richmond & D. R. Co. v. Allison

• Decision Date: 10 November 1890
• Citation: 12 S.E. 352,86 Ga. 145
• Parties: RICHMOND & D. R. Co. v. ALLISON.
• Court: Georgia Supreme Court

12 S.E. 352

86 Ga. 145

RICHMOND & D. R. Co. v. ALLISON.

Supreme Court of Georgia

November 10, 1890

Error from city court of Atlanta; VAN EPPES, Judge.

The official report is substantially as follows: Allison sued the railroad company for damages for personal injuries. He alleged in his declaration, among other things, that, at the time he was injured, he was a postal clerk, earning $1,150 a year, with prospects for an immediate promotion to a salary of $1,300 a year, and excellent prospects for promotion in his life beyond the highest wages paid to postal clerks; and that, when he was hurt, he was 22 years old. He also set forth the nature and effect of the injuries inflicted upon him. The jury found for plaintiff $11,250, and defendant moved for a new trial upon the following grounds: (1-4) Verdict contrary to law, etc., such in amount as to show undue prejudice against defendant, and to shock the moral sense, and disproportionate to the injuries inflicted. (5) Error in charging: "Another item of damages alleged by the plaintiff is for permanent injuries. He says that he has been permanently injured, and, by reason thereof, his capacity to work and earn money by his labor throughout his future life has been practically destroyed. If this be true he would be entitled to further compensation on that account. The burden is on the plaintiff to show the fact that his capacity to labor and earn money has been permanently impaired, and the extent of such impairment, or to furnish data to the jury, from which they may be able to ascertain his financial loss in this respect. In passing upon this question, you would ascertain, from the evidence whether the plaintiff's capacity to labor and earn money is, in point of fact, practically destroyed or in part impaired by his injuries, and, if so, the extent of such impairment, and whether it will extend to the future, and through the remainder of his life; and if you so find you will award him such a sum as you think reasonable and just in view of the evidence, and the extent of such injury, and in view of all the facts and circumstances of this case, as disclosed to you in the evidence. If you believe from the evidence that the plaintiff has not suffered any permanent injury as the result of the injuries mentioned in the evidence, you would not allow him anything in the way of damages for a permanent injury. No fixed rule exists for estimating this sort of damage. The plaintiff's age, his habits, his strength, sex, vocation, the rate of wages earned by him in the past by his labor, his prospects of obtaining steady, remunerative employment in the future, prospects of increased earnings in the future by additional experience and skill acquired, if there be evidence on this point, and that evidence in your opinion is definite and tangible, these circumstances, in so far as they may be illustrated by the evidence, are all circumstances proper to be taken into account. Diminution of his ability to work, if likely to occur by growing years and infirmities of age, is also to be considered, and a proper deduction should be made on that account." (6) Error in charging: "Since the plaintiff would, if he had not been hurt, have received the fruits of his labor year by year as earned, but must now receive the sum awarded, if any, for permanent injuries, in cash, all at once by your verdict, it would be your duty to reduce the sum when ascertained, to its present cash value." (7) Error in charging: "The mortality and annuity tables have been introduced in evidence, and the means of ascertaining the conclusions reached, by pursuing their methods, will appear to you upon examination of those tables. These tables may be looked to by you in determining the question of what the future earnings of the plaintiff are worth paid down to him now, in cash, all at once, which have been cut off by his injury, if any have. These tables are not binding upon the jury as such, but may be used by you as aids or helps to the conclusion sought, and are to be considered by you along with the other evidence bearing upon the same point." Defendant contends that the error in the above charge is in stating to the jury that "the means of ascertaining the conclusion reached by pursuing their methods will appear to you upon examination of those tables." In this case the note attached to the annuity table, as set forth in the 70 Ga., was not introduced to the jury. Plaintiff's counsel introduced in evidence printed copies of the Carlisle Mortality Table and the Annuity Table, as found in 70 Ga., but without the note explaining their use. The seventieth volume of Georgia Reports was not handed to the jury. There were no means by which the jury could instruct themselves, in the absence of a charge explaining how the tables were to be used. The court manifestly used the method pursued by him, in charging where such note was before the jury, which charge, in this case, was inapplicable, and error. (8) Error in striking B. F. Wyly, Jr., for cause over the objection of defendant, under the following facts: Before the jury was stricken, Mr. Hoke Smith, of counsel for the plaintiff, stated that he had a contingent fee in the result of the litigation and that the juror, B. F. Wyly, Jr., was related to him, and that the wife of the juror was also related to him. Counsel for defendant stated to the court that, if such relationship existed, the defendant would waive it. Discussion then arose over another juror, and, when that was over, Mr. Hoke Smith again stated to the court that on account of Mr. B. F. Wyly, Jr., being his client, and his confidential friend, as well as his relative, to relieve him from any embarrassment which might be caused from trying a case in the result of which Mr. Smith was interested, he would have him stricken for cause, on the sole ground that relationship to counsel having a contingent fee would not disqualify. To this, counsel for defendant objected. The court directed the juror to stand aside for cause, and his place was filled by a talesman. B. F. Wyly, Jr., was one of the jurors regularly drawn for service at that term of the court. Defendant contends that it was error in the court to set aside such juror, without some evidence of relationship. Defendant contends further that it was error to set aside the juror for cause, even though related to Mr. Hoke Smith, after defendant had waived the relationship. Defendant further contends that, if related at all to Mr. Hoke Smith, it was so remote as not to be the ground of a challenge for cause. (9) Error in admitting the following evidence: "Question. How soon after his injury [referring to Mr. Allison] were there any vacancies at which promotions could have taken place? Answer. Vacancies were shortly afterwards; say certainly, in the course of the next three to six months, I think, after Allison was hurt. According to Mr. Allison's standing, and the classification which I gave, his prospects for promotion to one of these places was good." Defendant objected to this testimony, and to all other evidence of the said witness, tending to show prospects of promotion, as being simply the opinion of the witness, and as showing a possibility too remote to be the basis of consideration by the jury, in finding damages. In connection with the eighth ground of the motion, the defendant produced an affidavit to the effect that affiant applied to Mr. Smith to ascertain the relationship which the juror, Wyly, bore to him, and was informed that the juror's mother and the grandmother of Smith were first cousins. Dependent also applied to Wyly, who stated that he was unable to give the information, and he did not know what the relationship was.

Jackson & Jackson, for plaintiffs in error.

Hoke & Burton Smith, for defendant in error.

SIMMONS J.

1. Allison sued the railroad company for damages, and obtained a verdict. The railroad company moved for a new trial, upon several grounds, which will be found in the official report. The view we take of the case renders it unnecessary to discuss any of these grounds except the fifth and the ninth. The fifth is as follows: "Because the court erred in charging the jury as follows: 'Another item of damages alleged by the plaintiff is for permanent injuries. He says that he has been permanently injured, and, by reason thereof his capacity to work and earn money by his labor throughout his future life has been practically destroyed. If this be true he would be entitled to further compensation on that account. The burden is on the plaintiff to show the fact that his capacity to labor and earn money has been permanently impaired, and the extent of such impairment, or to furnish data to the jury, from which they may be able to ascertain his financial loss in this respect. In passing upon this question, you would ascertain from the evidence whether the plaintiff's capacity to labor and earn money, is in point of fact, practically destroyed, or in part impaired, by his injuries, and, if so, the extent of such impairment, and whether it will extend to the future, and through the remainder of his life; and, if you so find, you will award him such a sum as you think reasonable and just, in view of the evidence and the extent of such injury, and in...