Rogers v. Wilson

• Citation: 111 S.E.2d 251,100 Ga.App. 301
• Decision Date: 02 October 1959
• Docket Number: No. 2,No. 37884,37884,2
• Parties: Miss Farris ROGERS v. Mrs. J. L. WILSON et al
• Court: United States Court of Appeals (Georgia)

Page 251

111 S.E.2d 251

100 Ga.App. 301

Miss Farris ROGERS v. Mrs. J. L. WILSON et al.

No. 37884.

Court of Appeals of Georgia, Division No. 2.

Oct. 2, 1959.

Syllabus by the Court.

Where, as here, the petition makes no claim for lost earnings and where, as here, there is no evidence from which to determine the value of the diminution in the plaintiff's earning capacity, it is reversible error for the court to charge the principles of law involved in such points.

Mrs. James L. Wilson brought suit in the Superior Court of McDuffie County against Miss Farris Rogers and T. V. Benson for personal injuries allegedly sustained as a result of an automobile collision.

We will not set out the petition in its entirety but only certain portions of it which are relevant to the issues involved. Paragraphs 15(h) and (j) of the petition read as follows: '15(h). She has been rendered permanently disabled as a result of the aforesaid injuries and she will be permanently maimed and crippled for the remainder of her life. 15(j). Her permanent injuries have rendered her incapacitated to the extent of seventy-five (75) percent; that is, she has not more than 25% of her former efficiency as a normal human being.'

The trial resulted in a verdict in favor of the plaintiff and against the defendant Rogers for $15,000. The jury exonerated the defendant Benson. The defendant Rogers filed a motion for new trial on the general grounds and three special grounds.

The court denied the motion and it is on that judgment that the case is here for review.

Robert E. Knox, Thomson, E. D. Fulcher, Fulcher, Fulcher, Hagler & Harper, Augusta, for plaintiff in error.

Randall Evans, Jr., Thomson, John F. Hardin, Augusta, T. Reuben Burnside, Thomson, for defendants in error.

GARDNER, Presiding Judge.

1. Special ground 1 complains that the court erred in charging the jury as follows:

'Now, I charge you, that if the jury should find that the plaintiff is entitled to recover on account of the injuries to her person, it would be the duty of the jury to determine the amount of the damage. In that connection, the court instructs you that one item of damage that is recoverable on account of injury to the person, where there is liability, is the reasonable value of her lost earnings due to such injury prior to the date of the trial. If the jury should find that the plaintiff has suffered injuries to her person which will incapacitate her or reduce her earning capacity for any time extending into the future, the jury would determine the extent of the diminution of capacity to earn money, for how long a time that loss of diminution would continue, and the reasonable value of such lost earnings. Having done that, the jury should reduce that loss to its present value, using as a basis of reduction 7% per annum as the legal value of money in Georgia. To illustrate, $100 due and payable today would be worth $100 today. $100 to become due and payable one year from today would not be worth $100 today. It would be worth today only that sum to which you would add interest at the rate of 7% per annum for one year would, principal and interest together, make $100. To carry the illustration one step further, gentlemen, $100 due and payable two years from today would not be worth $100 today; neither would it be worth as much as $100 to become due and pyable one year from today. It would be worth today that sum to which when you add interest at the rate of 7% per annum for two years, would, principal and interest together, make $100. That is a method by which unearned earnings extending into the future may be reduced to their present value.'

It is alleged that this except was erroneous and injurious because (a) the plaintiff only sought damages for pain and suffering mental and physical, permanent disability, and for incapacity as a normal human being as opposed to the reasonable value of her lost earnings from the date of the injuries to the time of the trial; and incapacity or diminution in earning capacity; because (b) no evidence appeared during the trial in regard to the earnings of the plaintiff prior to the accident, or diminution of earning capacity; because (c) the charge was not authorized by the pleadings and evidence since there was no issue raised in the petition, and no evidence was introduced at the trial upon which to base such a charge; because (d) under the allegations of the petition and the evidence adduced the charge was harmful and prejudicial to the plaintiff. The judge charged that the jury should consider any incapacity of the plaintiff or any reduced or lost earnings of the plaintiff; that such charge authorized the jury to consider incorrect measures of damages and such charge could have influenced them in arriving at the amount of their verdict and would tend to make them return a larger amount than was warranted; because (e) the charge of which complaint is made was misleading and confusing to the jury in that there was no evidence to authorize the jury to use and apply the formula contained in such charge for reducing lost future earnings to their present value; because (f) there was no evidence introduced in regard to the earnings or the earning...