1. The plaintiff pleaded as an item of special damages $2,921.03, alleging that he had a working agreement in which he shared in the profits of the company in which he worked; that from March through August 1961 because of his injuries he lost the sum claimed, which would have been his part of the profits during that period of time when he was unable, to work regularly. The trial court erred in overruling defendant’s special demurrer on the ground that the alleged working agreement was not set out. Loss of earnings in the form of profits can be recovered only if the loss is free from uncertainty and speculation. See
Central of Ga. R. Co. v. Cooper,
2. In Grounds 1, 2 and 3 of the motion for new trial the defendant complains that the court in giving charges tо the jury requested by defendant on the subject of injury to plaintiff *487 caused by an intervening independent agency, failed to give the charges in the exact words of defendant’s writtеn requests.
It is not necessary for us to decide whether the charges requested by defendant were pertinent to the evidence in the case, because the plaintiff’s counsel states in his brief that, in order to avoid the possibility of reversal of a verdict for the plaintiff, he “requested the judge in the trial of this case to charge all of thе written requests of the [defendant], whether they were adjusted to the facts and the evidence in this case or not.” By this action during the trial the plaintiff is estopped now to tаke the inconsistent position that the requested charges should not have been given as requested.
Partee v. State,
3. The court’s charge complained of in Grounds 4 and 5 of the motion for new trial, which instructеd the jury that the comparative negligence rule was applicable “if you also find that the plaintiff was negligent but that plaintiff’s negligence did not amount to failure on his рart to exercise ordinary care and diligence,” was error.
Underwood v. Atlanta &c. R. Co.,
4. Ground 6 complains that the trial court charged the jury the allegations of plaintiff’s petition that the defendant’s employee was exceeding the speed limit established by a specified city ordinance, and thereafter instructed the jury that the violation of a city оrdinance; is negligence per se. Neither the ordinance nor its alleged violation was proved. “While in charging the jury it is not reversible error to merely state correctly the contentions as made by the allegations of the petition, even though some of the contentions may not be supported by the evidence . . . , yet to instruct the jury on the law of a contention as to which there is no1 evidence, though the charge be correct in the abstract, is cause for a new trial, unless it is appai'еnt that the jury could not have been misled.”
Robertson v. Abernathy,
5. Grоund 7 complains of the admission of testimony of the plaintiff’s business associate concerning a working arrangement whereby the plaintiff was to receive 40% of the net profits of the business. This witness stated what the plaintiff earned for a *489 month just before the accident, and lesser amounts he was paid pursuant to the arrangement in several mоnths following the accident as his commission on contracts entered into prior thereto. He testified to the effect that when the plaintiff became unable to work after the accident, he had to be replaced, and “I feel like if he hadn’t had this accident he would have been making in the bracket of about $10,000 a year.”
This evidence as a whole was insufficient to support damages for loss of profits by the plaintiff. There was no evidence of the net profits of the business in which the plaintiff would hаve participated had he continued under the arrangement for receiving 40% of the net profits. One item of damages for personal injury is “loss of definite earnings that would have been received in the future but for the injury.”
Hunt v. Williams,
Nevertheless, the trial court did not err in overruling Ground 7, because some of the testimony embraced in defendant’s objection was admissible. It is- well settled that, when any part of evidence objected to as a whole is not subject to the objection mаde, it is proper to overrule the objection.
Jackson v. State,
6. It is error for the court to fail to instruct the jury on the measure of damages claimed, even in the absence of а request.
Brown v. Wells,
The plaintiff having claimed recovery for damages to his automobile, the trial court erred in overruling Ground 8 of the motion for new trial complaining that the cоurt failed to charge on the measure of damages to an automobile.
7. The plaintiff’s only evidence of property damage was an itemized bill for repairs to his truck. Ground 9 of the motion for new trial, contending that the court erred in submitting to the jury the question of damage to the plaintiff’s automobile because “plaintiff failed to show value immediately before and immediately after the accident,” is without merit. The defendant did not object to the admission of plaintiff’s evidence on repairs. The cоurt did not specially submit the question of property damage to the jury. His only charge on special damages was, in effect, that they must be caused by the defendant’s negligеnce and the amount of such damages must be proven by the evidence. Plaintiff’s expense in making repairs was recoverable if it was not more than the value of the truck before the accident. When the plaintiff seeks recovery for damages to an automobile, he may claim the reasonable value of repairs mаde necessary by the accident, together with hire on the vehicle while rendered incapable of use, and the value, of any permanent impairment, providеd the aggregate amount of these items does not exceed the value of the automobile before the injury with interest thereon.
O’Donnelly v. Stapler,
Judgment overruling special demurrer reversed; judgment denying a new trial reversed.