19 Ga. App. 503 | Ga. Ct. App. | 1917
Mattie Sharp sued for personal injuries received while a passenger on a train of the Georgia Northern Eailway Company, and upon the trial obtained a verdict for $500. The railway company excepts to the overruling of its motion for a new trial.
1. Exception is taken to the following charge of the court: “Mattie Sharp, the plaintiff in this case, has instituted legal proceedings in which she seeks to recover damages for certain alleged injuries which she claims* caused her physical pain and suffering
2. In the second ground of the amendment to the motion for a new trial it is contended by the company that the court, in its charge, placed upon the company the burden of showing that the accord and satisfaction pleaded by it was not made at a time when the plaintiff was mentally or legally incapacitated to make such a contract. Without inquiry into the merits of this contention, we think it sufficient to say that the undisputed testimony in the case shows that, at the time of the alleged accord and satisfaction and the execution of the written release specially pleaded by the company, 'the plaintiff was a minor. She denied the execution of the release, and the burden was certainly upon the company to show the execution of the release, by the preponderance of the evidence. Acting upon the theory that the jury might find that an accord and satisfaction had been made, the plaintiff pleaded her minority and tendered to the company the consideration of the same. Under the charge of the court on the question of the validity of a release executed by a minor (to which no exception is taken), there was but one finding that could result. Since this is true, it is unnecessary to determine whether the charge is in all respects technically correct.
3. The excerpt from the charge in the third ground of the amendment to the motion for a new trial is conceded to be a correct statement of a principle of law, but it is complained that the verdict is contrary to the charge there quoted.’ This assignment,
4. In his instructions the judge reminded the jury that the plaintiff could not recover unless the defendant company was negligent in one or more of the ways alleged in the petition. He then said to the jury: “Neither can she recover a larger amount than that actually sued for, yet it is entirely discretionary with the jury to allow her the full amount sued for, or a part of the amount sued for, or they may find for the defendant, which of course would mean that the plaintiff would be allowed no amount whatever.” He then instructed the jury on the measure of damages for the alleged pain and suffering, and for the alleged diminution of earning capacity claimed by the plaintiff. The language of the court, in the charge above quoted, to wit, “that it is entirely discretionary with the jury,” does not furnish the jury a correct legal guide, and is inapt. In Central of Ga. Ry. Co. v. Brinson, 18 Ga. App. 113 (6), 114 (88 S. E. 1003), it was held: “Where in an action for damages there is no contention that the plaintiff, if entitled to recover at all, is not entitled to recover .as much as the amount of the verdict rendered in his favor, the instructions of the court upon the measure of-damages become immaterial. He who asserts that such error has been committed as requires the grant of a new trial must not only designate the error, but must, also show that the error worked to his injury.” If this statement of the rule be correct, the exceptions to the instructions on the measure of damages in the instant case are without merit. There is no contention that the verdict for $500 is excessive. The railway company contends that the plaintiff is not entitled to recover at all, but it is nowhere claimed that, if she is entitled to recover, she has recovered a sum in excess of her legal damages. It is true that the injury to the plaintiff is not conceded, but, under any view of the evidence in this case, a verdict for an amount of damages even larger than the amount returned by the jury would have been warranted, if she is entitled to recover at all, and the railway company does not contend otherwise. We, however, do not commit ourselves to the rule in the Brinson case, supra. We think the rule there stated is unsound, but in the case at bar the charge of the court does not require a new trial.
5. The evidence disclosed that at the time of the filing of the
Judgment affirmed.