51 Ga. App. 102 | Ga. Ct. App. | 1935
Jenkins, P. J.
The general grounds of the defendant’s motion for a new trial are not argued or insisted upon. Where the amount of a verdict is attacked merely for excessiveness, and not for the inclusion of some calculable amount definitely ascertainable from the undisputed evidence, and the verdict has been approved by the trial court, it will not be set aside unless the amount is so excessive as to manifest undue bias or prejudice, gross mistake, or improper motive, on the part of the jury. Metropolitan Life Ins. Co. v. Lovett, 50 Ga. App. 763 (179 S. E. 253). It can not be said that the verdict for $2000 in favor of the plaintiff on account of alleged pain and suffering, medical expenses,
The charge as to the future impairment in earning capacity of the plaintiff was not subject to the exception that it erroneously excluded from the consideration of the jury evidence as to the plaintiff’s suffering from a previously existing stomach trouble, as an element in decreasing his life expectancy and earning capacity. Where the evidence shows that one at the time of his alleged injury from the negligence of another was suffering from a disease of the effects of a previous injury, which itself would tend to shorten life or diminish earning capacity, it is generally error to charge the usual rule of damages as to the loss or reduction of earning capacity without any reference to the existing affliction and its future effect. Central R. Co. v. Dottenheim, 92 Ga. 425 (3) (17 S. E. 662); Ala. R. Co. v. Brown, 138 Ga. 328, 332 (75 S. E. 330); Atlanta Coca-Cola Bottling Co. v. Hathcox, 45 Ga. App. 822 (2) (165 S. E. 902). It must, however, appear that the disease or the effect of the previous injury in fact existed after the injury by the defendant, and was of a nature sufficient to affect the duration of life or the earning capacity. In the instant case the evidence in question was from witnesses working on previous building jobs with the plaintiff, one of whom stated that prior to 1930 the- plaintiff complained to him of an “ulcerated stomach;” another that in 1929 or 1930 the plaintiff complained to him on one occasion of “stomach trouble,” and he thought that the plaintiff left the job, and he saw the plaintiff vomiting; and a third witness, that at some unstated time before 1932 he had “heard plaintiff complain of his stomach and seen him drink soda and coca-cola, and he said he had stomach trouble.” The alleged injury from drinking the defendant’s beverage occurred on April 25, 1932. The charge as to the future impairment in earning capacity was given at the trial on January 16, 1934. This indefinite testimony, which was denied by the plaintiff and other impeaching witnesses, failed to indicate that the prior stomach trouble of the plaintiff, whatever its actual nature, either existed at the time the beverage was drunk or continued to the time of the trial, or that it was of such a character as would continue to
“A charge which is abstractly correct is not rendered erroneous by a failure to charge some other legal principle applicable to the case.” Winn v. Bridges, 144 Ga. 497 (3) (87 S. E. 665); Hattaway v. Dickens, 163 Ga. 755 (137 S. E. 57); Van Dyke v. Van Dyke, 31 Ga. App. 67 (119 S. E. 436). There is therefore no merit in the exception to the instruction on the law of permanent injury and impairment of future earning capacity, which in itself was not erroneous, upon the ground that the court failed to charge in connection therewith or elsewhere the measure of damages applicable if the jury, under the evidence, found that the injury was temporary rather than permanent. Moreover, from an examination of the charge it appears that the court in fact submitted the question of allowing the items claimed for temporary disability, including the cost of medical treatment and an amount for pain and suffering, past as well as future, and correctly stated the rule therefor, to which no exception was taken.
In Chenall v. Palmer Brick Co., 117 Ga. 107, 110 (43 S. E. 443), the Supreme Court in defining the maxim res ipsa loquitur quoted with approval the language of the leading case of Scott v. London &c. Co., 3 Hurl. & C. 596, as follows: “There must be reasonable evidence of negligence; but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the de
Judgment affirmed.