Special ground 1 of defendants’ motion for new trial complains of the admission of the testimony of a witness that in his opinion “. . . what caused the wheel, the left front wheel to lock as I described it, it could be caused from grease or brake fluid on the brakes or the brakes could be too tight on that one wheel.” The defendant objected to this evidence on the ground that “it would be a conclusion on the part of the witness.” After the admission of the above testimony the same witness testified further: “. . . As to whether there was anything on that truck that could have caused that left front wheel to slow down and locked, it could have been brake fluid or grease on the brake shoe, either one would cause a brake shoe to grab. The other reason was he could have had them too tight in adjustment. You can have one brake too tight on an automobile and when you рut it on it will pull that way, that brake will pull the car that direction for some distance. . .” There was no objection to the testimony just quoted.
Whether the court erred in admitting the testimony objected to is immaterial, since the same witness gave substantially the same testimony again and no objection was made to it.
Butts County v. Hixon,
In special ground 2 the defendants complain that their counsel asked the witness Noah Williams on cross-examination, “You don’t have a driver’s license?” and the court sustained *445 plaintiff’s objection on the ground that such matter was irrelevant. Defendants contend that by this ruling the court excluded the testimony of the witness that he, Noah Williams, did not have a driver’s license. The special ground itself and the record refute this contention. Immediately before asking the above question, defendants’ counsel had askеd the witness: hLet me see your drivers license, maybe it will tell your birthday.” And the witness answered, “I haven’t got one.” There was no motion made to rule out this testimony and it remained in evidence.
Accordingly, even though the exclusion of Noah Williams’ testimony that he did not have a driver’s license may have been error (which we do not decide), the defendants were not harmed because such testimony was already in evidence. It “is not every error which will warrant the grant of a new trial. The error must be a substantial one which harms the complaining party by depriving him of something to which he was entitled in the exercise of his right to a fair and lawful trial. . . In the case at bar the record discloses that the plaintiff in error was permitted to prove substantially everything contained in the testimony which was excluded . . . therefore he could not possibly have been harmed by being deprived merely of the рrivilege of repetition.”
Eberhardt v. Bennett,
In special ground 3 the defendants contend that the following excerpt from the court’s charge to the jury was error because it was not authorized by the pleadings and evidence: “Every motor vehicle, other than a motorcycle or motor-driven cycle, when operated upon a highway shall be equipped with brakes adequate to control the movement of and to stop and hold such vehicle including two separate means of applying the brakes, each of which means shall be effective to apply the brakes to at least two wheels. If these two separate means of applying the brakes are connected in any way, they shall be so constructed that failure on any one part of the operating mechanism shall not leave the motor vehicle without brakes on at least two wheels. . . Every motor vehicle or combination of motor- *446 drawn vehicles shall be capable at all times and under all conditions of loading, of being stopped on a dry, smooth, level road free from loose material upon application of the service (foot) brake within the distances specified below or shall be capable of being decelerated at a sustained rate corresponding to these distances. . . Vehicles or combination of vehicles not having brakes on all wheels, feet to stop from twenty miles per hour, forty, deceleration in feet per second 10.7.” This instruction was given in connection with the following: “I charge you, gentlemen of the jury, the following traffic laws of this State as being applicable to this case.” Whereupon the court charged portions of Code Ann. §§ 69-1626, 68-1633, 68-1634 and 68-1715 (the above excerpt is a рart of Code Ann. § 68-1715 (a) and (b)).
There were allegations and evidence forming an issue whether the brakes on defendants’ truck were adequate to control its movement. There was no issue in the case as to whether the brakes met the other statutory requirements embodied in the charge objected to. This court has recently held that “To authorize the court to charge on the issue of whether brakes are capable of performing аs required by
Code Ann
§ 68-1715 (b),' there must be evidence that the brakes have been tested and as to whether or not they meet the statutory requirements.”
Atlanta Metallic Casket Co. v. Hollingsworth,
Accordingly, there was no error in overruling special ground 3 of the motion for new trial.
Special grounds 4 and 5 of defendants’ motion for new trial involve exceptions to all or part of the following excerpt from the court’s charge: “The guide for fixing damages, if any, for pain and suffering and diminished capacity for labor, is the enlightened consciouses [sic] of impartial jurors. . . You will *447 look to the evidence a,nd to the rules of law which the court has given you in charge and determinе what amount, if any, you find for the plaintiff as compensation for pain and suffering and the diminished capacity to labor, past, present and future. . . I charge you, gentlemen of the jury, that if you find from the evidence and the rules of law which the court has given you in charge that plaintiff was disabled for the remainder of her life, thereby suffering a loss of earning capacity, you will apply the following rules of law which the court will now give you in chаrge.” The court then continued with instructions on the method for calculating damages for loss of earning capacity.
In ground 5 the defendants complain of the court’s charging the third paragraph quoted above together with the instruction on the method for calculating damages, on the ground that it was not supported by evidence from which the jury could ascertain with reasonable certainty what plaintiff’s earning capaсity was, or the extent to which it had been diminished.
There was evidence that the plaintiff’s ability to work was diminished after her injuries. The plaintiff testified that she had never worked at a job for wages, but that she had applied for a job at the pants factory in Toccoa and had been offered a trial at a sewing job that would have paid a dollar an hour for forty hours a week; that she was told she could have the job if she could “make production after the forty hours.” The evidence does not show whether this offer to plaintiff was before or after her injuries or whether before her injuries she was capable of performing the job, though there is evidence that the plaintiff did sewing at home before her injuries and afterwards was unable to do anything. This was not sufficient evidence from which the jury could arrive at, estimate or infer the pecuniary value of plaintiff’s earning capacity before her injury, and hence insufficient to determine the amount by which her earning capacity had been dimnished, even if we assume it was totally destroyed. “. . . Yet where a recovery is sought for pecuniary loss resulting from an impaired capacity to earn money, resulting from a physical injury, there must appear some data from which the jury can arrive at the pecuniary value of the injured person’s earning capacity both before and after the
*448
injury. . . While proof of the plaintiff’s actual earnings, either before or after the injury, is not essential to the establishment of the value of the plaintiff’s decreased earning capacity, there must nevertheless appear some evidence, either direct or circumstantial, tending to show what the plaintiff was capable of earning both before and after the injury. The mere fact that the plaintiff has suffered a physical injury, such as a sprained or fractured ankle, which might permanently impair her ability to walk or to enjoy the normal use of both feet, and that she is thereby prevented from performing the duties of her employment at the time of the injury, in the absence of any evidence either direct or circumstantial tending to show what the plaintiff earned in her .business, or other evidence from which the jury could estimate the pecuniary value of the plaintiff’s earning capacity, either before or after the injury, even if sufficient to establish a diminished earning capacity as a result of the injury, is insufficient to establish its pecuniary value.”
City of Atlanta v. Jolly,
The charge complained of was not supported by sufficient evidence, and the overruling of special ground 5 was error. It therefore becomes unnecessary to pass on other contentions made by the defendants in this ground.
In special ground 4 the defendants complain of the whole of the above excerpt from the charge, contending, first, that it erroneously authorized an award of damages for “diminished capacity to labor as a separate and distinct item of damages”; and, second, that it authorized the jury to award damages of three types, for (1) pain and suffering, (2) loss of capacity tо labor, and (3) loss of earning capacity, and thereby to award damages twice based on the effect of plaintiff’s injuries on her ability to work and earn money.
*449
In a few cases the courts have indicated that it was not harmful error, in the circumstances of these cases, for the court to fail to state specifically, in charging on diminished capacity to labor, that loss of capacity to labor is but an element of pain and suffering.
Atlanta Street Ry. Co. v. Jacobs,
Defendants’ second contention raised the question whether, as a matter of law, it is error to charge that an injured plaintiff has a right to recover damages for loss of capacity to
labor
to be determined from the jurors’ enlightened conscience and also damages for loss of
earning
capacity determined from evidence sufficient to show some pecuniary value of earning capacity. Defendants cite
Jackson v. Co-op Cab Co.,
*451
We recognize that there are some cases in which the courts have approved of including damages for decreased capacity to earn money as an element of pain and suffering to be measured by' the enlightened conscience of impartial jurors, when there was, and because there was, no evidence from which a jury could determine a pecuniаry value for loss of earning capacity.
Langran v. Hodges,
For the reason stated in subdivision 5(a) above, the overruling of ground 4 of defendant’s motion for new trial was error.
In special ground 6 the defendants complain that the court in its charge stated to the jury the allegations contained in plaintiff’s petition, and then in stating the substance of defendants’ answer restated many of plaintiff’s allegations, thus overemphasizing and impressing the jury with plaintiff’s contentions аnd underemphasizing defendants’ contentions.
Florence v. Byrd,
The'court's charge in this case does not appear to favor the plaintiff’s contentions or be prejudicial to the defendants as contended in ground 6. Therefore, this ground shows no error.
*452 Turning now to the cross-bill of exceptions, it is contended by. the plaintiff that the trial court erred in not sustaining his motion to dismiss defendants’ motion for new trial for the reason that no brief of evidence was filed within thirty days of the rendition of the verdict nor was any order granted within said thirty-day period allowing defendants beyond thirty days in which to perfect their brief of evidence. The facts on this point are as follows: A motion for new trial was made at the January term, 1961, of Stephens Superior Court, on January 13, 1961 (one.day subsequent to the verdict), by use of a so-called skeleton'printed form setting out the usual three general grounds. On this same day the trial judge thereupon signed the first printed order form setting the hearing for the motion on February 23, 1961, and granting supersedeas. The second printed order form, which contained the usual language allowing movant additional time in which to perfect the brief of evidence, was left' blank and unsigned. On February 23, 1961, and within the January term, 1961, of Stephens Superior Court, the plaintiff filed his motion to dismiss the defendants’ motion for new trial on the grounds stаted above. Thereupon, the defendants presented the court with a proposed form for nunc pro' tunc order which would give defendants until February 23, 1961, or .until a hearing was held, to prepare, file and present for approval a brief of evidence. After a hearing on these matters, the trial court on the same date entered an order nunc pro tunc, amending the rule nisi on the motion for new trial of January 13, 1961 and statеd in the order: “Whereas, at the time said order was granted it was the intention of the court that said order contain a provision to the effect that the defendants, W. H. Hunt and George Thomas Simmons, should have until 11:00 o’clock a.m. on February 23, 1961, or until the hearing on said motion, whenever it may be, in which to make out, complete, and file a brief of the testimony in said case, which provision through inadvertence, oversight, and error was omitted from the undersigned on January 13, 1961; and, Whereas, the order granted should be amended, nunc prо tunc, so as to insert in said order the provisions which through oversight and inadvertence were omitted, and so that the order as amended will be conformable to law and *453 justice and will make said order conform to the truth.” (Emphasis supplied.)
Prior to 1947 a brief of evidence was indispensable to a motion for new trial. However, even under the new- law (Ga.- L. 1947, p. 298), where all the assignments of error raised in the motion for new trial or amendments thereto require consideration of the evidence,- a brief оf the evidence is essential to the motion and in its absence, neither the trial court nor this court will consider those alleged errors which necessitate a consideration of the evidence.
Welfare Finance Co. v. Corbin,
In
Southern Ry. Co. v. Jay,
The trial judge in this case stated in his nunc pro tunc order that it was the court’s “intention” that the .order entered January 13, 1961,. .on the defendants’ motion for new- trial contain a
*454
provision that the defendants have until February 23, 1961, or until the hearing on said motion, in which to file a brief of evidence, “which provision through inadvertence, oversight, and error was omitted.” The clear intendment of the court’s order nunc pro tunc was that at the time the rule nisi was issued the court did in fact grant the extension of time to prepare and file a brief of evidence but failed to properly record this' action. We are of the opinion that the trial court did not err in this case by entering the order nunc pro tunc nor in refusing tо dismiss the motion for a new trial. A nunc pro tunc entry signifies “now for then,” and “is granted to answer the purposes of justice.”
Truett v. Justices,
On the main bill of exceptions for the reasons stated in divisions 4 and 5 the judgment must be reversed.
On the cross-bill of exceptions the judgment is affirmed.
Judgment reversed on main bill of exceptions; judgment on cross-bill affirmed.