Rome Ry. & Light Co v. Duke

• Citation: 26 Ga.App. 52,105 S.E. 386
• Decision Date: 16 December 1920
• Docket Number: (No. 11611.)
• Court: United States Court of Appeals (Georgia)
• Parties: ROME RY. & LIGHT CO. v. DUKE.

26 Ga.App. 52

105 S.E. 386

ROME RY. & LIGHT CO.

v.DUKE.

(No. 11611.)

Court of Appeals of Georgia,

Division No. 1.

Dec. 16, 1920.

(Syllabus by the Court.)

Error from Superior Court, Floyd County; Moses Wright, Judge.

Action by J. W. Duke against the Rome Railway & Light Company. Judgment for plaintiff, and defendant brings error. Reversed.

J. W. Duke brought suit against the Rome Railway & Light Company, alleging that when he was 29 years old, and while in the discharge of his duties as an employe of said company, his foot and ankle were bro ken, and that his injury was permanent; that it greatly marred the physical appearance of his foot; that he would have to go through life limping; that on account of this he suffered great "mortification and embarrassment"; that "finally he was compelled to have his ankle rebroken by a specialist and a part of the bone removed"; that even after this he had to have his right ankle cut open and another operation performed thereon"; and that "he has constantly suffered the most intense pain from said injury, and will so suffer so long as he lives." He alleged that while he was descending an electric light "pole by means of sticking said spurs into said pole, and when he had reached a point on said pole about 12 feet from the ground, the surface and that part of said pole into which he had stuck said spur for the purpose of holding his weight and going down said pole, because of the sappy, doty, and decayed condition thereof, gave way and permitted said spurs to cut through said sappy, doty, and decayed part thereof, and caused petitioner to fall violently to the ground on his right foot, a distance of 12 feet, " resulting in the injury described. The petition alleged that before the injury he was capable of earning $60 per month, and but for the injury would have attained an earning capacity of $100 a month; that because of the injury his ability to earn money had been decreased by one-half; that he had been "put to a doctor's bill in the sum of $200" and had "lost labor in the sum of $500, or other large sum." He prayed that he recover the sum of $15,000. The trial resulted in a verdict for the plaintiff for $7,500. The defendant's motion for a new trial was overruled, and the movant excepted.

Willingham & Covington and L. A. Dean, all of Rome, for plaintiff in error.

W. B. Mebane and Barry Wright, both of Rome, for defendant in error.

BLOODWORTH, J, (after stating the facts as above). The evidence showed the amount which had been expended for doctor's bill, and that the plaintiff had lost about six months' time, but it did not show any specific percentage in the diminution of his ability to labor or his capacity to earn money. Complaint is made of the following charge to the jury:

"He says he suffered a permanent injury and that his capacity to earn a livelihood has deteriorated a certain per cent. You will find out what the gross sum is, if any, if you can from the evidence, and how much he probably will have lost for the remainder of his years, and find what the cash value of that would be at the present time, using any arithmetical means with which you are familiar to determine this. Now I charge you, in trying to fix the gross earnings of the plaintiff in this case, if you do, and in trying to determine what hislost services will amount to in future, that you should take into consideration the fact the plaintiff will grow older, with a possibility of diminishing ability to earn a livelihood in the latter years of his life."

This was alleged to be error because:

"While plaintiff alleged in his petition that his ability to earn money had been reduced, yet there was no proof introduced upon the trial tending to show that plaintiff bad lost any capacity to earn money; on the contrary, the uncontradicted proof shows that, except for the loss of time while lying in and being treated, he had not been injured and damaged in his earning capacity, his own proof showing that since his injuries he has earned equally as much and more than he was earning before and at the time of his injuries."

We think this point is well taken. When a person's capacity to labor has been permanently impaired by a physical injury wrongfully inflicted, and the facts authorize it, he may recover his actual pecuniary loss because of lost time, necessary expenses such as doctor's bills, and the pecuniary loss that comes from the actual diminution of capacity to earn money, and also for physical pain and suffering caused directly by the injury, and mental pain and suffering which follows from a consciousness that his capacity to labor has been diminshed for life. City of Augusta v. Owens, 111 Ga. 465 (8), 479, 36 S. E. 880; Brush Electric Light & Power Co. v. Simonsohn, 107 Ga. 73, 32 S. E. 902; Atlanta Street Railroad Co. v. Jacobs, 88 Ga. 647, 15 S. E. 825 (2); Powell v. Augusta & Summerville Railroad Co., 77 Ga. 200, 3 S. E. 757; Atkinson v. Taylor, 13 Ga. App. 100, 78 S. E. 830. Where damages for mental pain and suffering are sued for because of the consciousness of diminished capacity to labor, there can be a recovery, "although no pecuniary loss therefrom may be shown." City of Atlanta v. Hampton, 139 Ga. 390, 77 S. E. 393 (7). To measure this element of damages "there is no standard but the enlightened conscience of impartial jurors." Atlanta Street Railroad Co. v. Jacobs, supra; Atkinson v. Taylor, supra.

In Atlanta & West Point R. Co. v. Haralson, 133 Ga. 235, 65 S. E. 440, Justice Lumpkin said:

"If a plaintiff seeks to recover for pecuniary losses resulting from lost time or permanent diminution of capacity to labor and earn money, he should introduce evidence on which to predicate such a recovery. But it has been held in this state that permanent diminution of capacity to labor is an element of damages for the consideration of the jury, in determining the amount of such recovery, along with evidence as to pain,...