1. The error in the charge of the court, complained of in ground 4 of the amended motion for a new trial, if erroneous was not harmful to the defendant.
2. Where damages for pain and suffering alone are recoverable under the
pleadings and evidence, it is error for the court to authorize the jury to find an additional sum for damages for lost earnings.
DECIDED JULY 15, 1947. REHEARING DENIED JULY 29, 1947.
William Drawdy, a minor, by his next friend, E. A. Drawdy, brought an action in the Superior Court of Richmond County for $35,000 damages for personal injuries against the City Council of Augusta. He alleged: That he was an infant 12-years' old, residing with his parents in the City of Augusta near the intersection of Crawford Avenue and Board Street. On April 21, 1946, he was injured, while walking along the north side of Broad Street at a point where Crawford Avenue intersects that street, by a cement block approximately four feet high, three feet wide, and eight inches thick, weighing approximately 2000 pounds, which toppled off a cement base on the sidewalk and fell on him, wounding him, mangling his right leg, and crushing the bone so severely that it was necessary to amputate his right leg. The City Council of Augusta permitted the erection of a monument on the edge of the sidewalk on the north side of Broad Street, which monument was made of two cement slabs standing opposing each other, one facing south toward Broad Street and the other facing north toward the sidewalk paralleling Broad Street on the north. Between the center of the two slabs was a small iron pipe approximately eighteen inches long, which was used to convey water into a drinking receptacle. Some ninety days prior to the date when the plaintiff was injured, an automobile or some other conveyance had collided with the monument, breaking the bonding between the two slabs, leaving them standing and held in position only by gravity. Some ten days prior to the date of the plaintiff's injury, the slab facing south toward Broad Street toppled over the sidewalk into the edge of Broad Street, leaving the other slab facing north toward the sidewalk without support and held in position only by gravity, and this condition was known to the defendant. As the plaintiff walked along the sidewalk on the north side of Broad Street, the remaining slab weighing approximately 2000 pounds toppled over on the plaintiff. The sidewalk on the north side of Broad Street at the point opposite where the cement slab had been left standing without support was constantly and continuously
in use by the public, and the plaintiff at the time of his injury was using the sidewalk as it was intended to be used. The weight of the cement slab falling on the plaintiff bruised, mutilated, and mangled his right leg, injuring and crippling him for life. As a result of the injuries so received, the plaintiff has suffered great anguish and pain and will continue to suffer the remainder of his life. The injury to the plaintiff's leg was so severe that it has required two different amputations at two different points. The plaintiff's earning capacity, as a result of the loss of his leg, has been greatly reduced, and he will be required to go through life a one-legged man. The plaintiff brought this suit to recover damages for pain and suffering, past, present, and future, a maimed and mutilated body, and a destroyed capacity to make a livelihood. In compliance with the law, written notice was given to the City Council of Augusta before filing suit.
The defendant's answer, as amended, alleged that the alleged injury of the plaintiff, if any, resulted from his own negligence. No demurrers were filed. On the trial, the jury returned a verdict for the plaintiff in the amount of $30,000. The defendant filed its motion for a new trial, as amended, on the general grounds and two special grounds.
Special ground 4 assigns error because the court erred in charging the jury as follows: "The degree or measure of care which the child is required to exercise is that which is ordinarily exercised and which is to be reasonably expected from a child of his years and experience under the circumstances he was in, as shown by the evidence; and before a jury can find him guilty of contributory negligence — that, I will explain to you later — or a lack of due care, you must find that he failed to exercise such care and caution as might reasonably be expected of a child of his years, under the circumstances." The defendant avers that this charge was erroneous and injurious to the defendant, because due care in a child of tender years is such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation under investigation, and is not such care as is ordinarily exercised and as is to be reasonably expected from a child of his years and experience.
Ground 5 of the motion assigns error because the court charged the jury: "In that connection, the court instructs you that one
item of damage is recoverable on account of injury to the person, where there is liability, is because of physical pain and suffering. Another item that you would determine is the decrease or loss of earning capacity. If the jury should find that the plaintiff has suffered injury to his person which will incapacitate him, or reduce his earning capacity for a time extending into the future, or whether or not there has been a permanent injury, 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 a reasonable value of such lost earnings. Having done that, gentlemen, the jury would reduce the loss to its present value, using as a basis of reduction seven percent per annum, that being the legal value of money in Georgia. To illustrate: one hundred dollars due and payable today would be worth one hundred dollars today. One hundred dollars due and payable one year from today would not be worth one hundred dollars today; it would be worth today only that sum to which, when you add interest at the rate of seven percent per annum, would, principal and interest added together, make one hundred dollars. That is the method by which unearned earnings extending into the future may be reduced to their present value. Another item of damages, I think I have already mentioned, in case you find he is entitled to recover on account of personal injury, that is where there is liability, on account of pain and suffering, mental and physical, reasonably and approximately resulting from such injury. Gentlemen, there is no mathematical rule by which such damages may be ascertained or determined. The only rule recognized by our law for determining such damages is the enlightened consciences of fair and impartial jurors." Error is assigned on the charge on several grounds which will be discussed in the opinion which follows.
The court overruled the motion for new trial and the defendant excepted.
1. The charge with reference to the degree of care required to be exercised by the child, if erroneous, was not harmful to the defendant, because there was no evidence that the child was negligent under any criterion.
2. The charge excepted to in special ground 5 without question authorized the jury to find two elements of damages, one, pain and suffering, and two, loss of earning capacity. Under the pleadings and evidence, it was error for the court to authorize a finding for lost earnings, as the action was for pain and suffering and there was no evidence of lost earning capacity. A diminution in one's capacity to labor is an element of pain and suffering. Wall Realty Co. v. Leslie, 54 Ga. App. 560
(188 S.E. 60). The rule for determining such damages is the enlightened consciences of fair and impartial jurors. RailwayExpress Agency v. Standridge, 68 Ga. App. 836 (24 S.E.2d 508). A diminution in one's capacity to earn money is another distinct element of damages, and the measure of such damages involves numerous considerations, among which are, first, the earnings before the injury, earnings after the injury, probability of increased or decreased earnings in the future, considering the capacity of the injured party, effects of sickness and old age, etc. In a case where the pleadings and evidence authorize a recovery for both pain and suffering and a diminution in one's capacity to earn money, it is, of course, proper for the court to charge on both measures of damages; but in a case such as this, where the pleadings and evidence only authorize a finding for damages for pain and suffering, it is error to charge on diminished earning capacity as a separate and distinct item of damage and instruct the jury to reduce it to its present value. Shackleford v. Ridley, 71 Ga. App. 568
(31 S.E.2d, 429); Atlanta Coca-Cola Bottling Co. v. Deal,66 Ga. App. 211 (17 S.E.2d 592), and cit. The measure of damages to a child of 12 is the enlightened conscience of fair and impartial jurors. W. A. R. Co. v. Young, 81 Ga. 397
(4) (7 S.E. 912, 12 Am. St. Rep. 320). In many cases the courts of this State have repeatedly held that, where damages for pain and suffering alone are recoverable, it is error to authorize the jury to find also damages for lost earning capacity. We cite some of them: W. A. R. Co. v. Young, 83 Ga. 512 (2) (10 S.E. 197); West v. Moore, 44 Ga. App. 214 (2) (160 S.E. 811);A. W. P. R. Co. v. Haralson, 133 Ga. 231 (65 S.E. 437);Mitchell v. Mullen, 45 Ga. App. 282 (164 S.E. 278), and cit.; Central of Ga. Ry. Co. v. Morgan, 145 Ga. 656
(89 S.E. 760). The petition alleged: (par. 13) "that your petitioner's earning capacity, as a result of the loss of his leg, has been greatly reduced,
and he will be required to go through life a one-legged man;" and (par. 14) "that your petitioner brings this suit against defendant to recover damages for the pain and suffering, past, present, and future, a maimed and mutilated body and a destroyed capacity to make a livelihood." In their original briefs, attorneys for the defendant in error contended that the action was for pain and suffering alone, and not for pain and suffering and lost earnings. There was an exception to the failure of the court to charge that the child could not recover for lost earnings until he reached majority unless manumission was shown, and it was not shown in this case. In answer to this exception, the attorneys for the defendant in error contended that the action was not one for lost earnings and therefore not for lost earnings during minority. It is true that it was held in BettsCo. v. Hancock, 139 Ga. 198 (77 S.E. 77), that the lost earning capacity of a child could be considered in estimating damages when there was no proof of lost earnings. What we think the court meant was that the loss in earning capacity could be considered by the jury as an element of pain and suffering, inasmuch as the measure of such damages is the enlightened consciences of impartial jurors. In Atlanta, Knoxville Northern Ry. Co. v. Gardner, 122 Ga. 82 (49 S.E. 818), the court charged the jury that, "Where a minor . . is too young to have selected an avocation or to begin to illustrate her earning capacity, in such cases there is no measure as to the amount of damages, where such minor is entitled to recover therefor, except the enlightened consciences of impartial jurors, guided by all the facts and circumstances of the particular case." The charge was excepted to on the ground that it gave the jury an incorrect rule as to the measure of damages sought by the plaintiff for lost time, lost capacity, lost earnings, etc., and because these were matters for computation under other rules and not the consciences of jurors. The court in that case said: "The petition did not allege that the plaintiff was earning any income at the time that she was injured, nor that she had ever earned any, nor did the plaintiff undertake to sustain by evidence the allegations of the petition as to her earning capacity at the time she was injured. . . As her case went before the jury, she was seeking to recover alone for pain and suffering and permanent injuries, without undertaking to furnish the jury, by evidence, with any standard from which
to calculate the amount of diminution in her earning capacity . . for she did not offer to prove that she ever had any."
Our interpretation of these decisions is that, where there is no allegation and proof of lost earning capacity, the jury may consider the circumstance of lost earning capacity under the head of pain and suffering; and that, where there is allegation and proof of the amount of lost earnings, the jury can award an additional amount of damages, arrived at by computation from data furnished by the evidence. See also, on this point, Standard OilCo. v. Parrish, 40 Ga. App. 814 (151 S.E. 541).
Counsel for the defendant in error contend that the charge was more favorable to the defendant below than to the plaintiff below, and cite Louisville Nashville R. Co. v. Bean,49 Ga. App. 4 (174 S.E. 209). In that case only damages for pain and suffering were sought, and the court instructed the jury to reduce the damages found for the pain and suffering to its present value. The jury found for the plaintiff in that case, and whatever harm was done by the charge harmed the plaintiff if the jury reduced the amount to its present value. The charge in the instant case is vastly different. It not only authorized a finding for damages for pain and suffering, but, in addition, damages for lost earning capacity. We cannot agree with counsel that to authorize a recovery for damages for lost earning capacity, in addition to those for pain and suffering, was not harmful to the defendant when no recovery for lost earning capacity was authorized under the pleadings and evidence.
The court erred in authorizing the jury to find damages for lost earning capacity and in overruling the motion for a new trial.
The general grounds of the motion are not passed on.
Judgment reversed. Sutton, C. J., and Parker, J.,concur.