*1 667 38087. LANIER by v. Friend. O’BEAR, Next April Rehearing deniedMay 21, 1960 16, 1960. Decided Abbot & Abbot, error. H.
Charles Hyatt, Howard & Hyatt, Schley Wm. Howard, Jr, Marshall L. Fountain, J. V. Malcolm, Jr., contra. Special Judge. ground 1.
Nichols, numbered 4 amended motion complains for new trial of the admission of quoted but does testimony, not show who the witness was. special first ground “The incomplete of the motion is and can be considered because the name of witness whose evidence objected appear to is not made to Trammell therein. See Shirley, App. Ga. (145 710, 10, page 486).” Rule S. E. Holsenbeck v. Arnold, 311, E.S. 2d Therefore, amended motion for new trial can considered. special grounds assigned 7 error is excerpts on (1) the court’s is negligence per it operate se to an per automobile excess of 35 miles hour in residential (2) area, per negligence operate it is se automo- public on the highway bile per excess of 60 miles hour. excerpts There is contention that such did not state correct principles excerpts law were by not authorized pleadings and the sole contention of the defendant “ ‘To charge. warrant authorize to- is not given topic . charging
court in clear upon it awith the evidence should shine necessary evidence. be afforded light. enough glimpses It is amongst Frequently Truth but is truth is often dim nevertheless. *2 mentioned proved the best is one which has facts witness other facts.’ testimony, being an inference from fact 13).” (4 Clegg, 94 Brown 1 E. Everett v. Mathews, S. Ga. 2d 725, 730 E.S. 600 from was the was 548 to
There evidence that defendant plaintiff feet the road up the road when started across the approxi- that the automobile skidded bicycle, defendant’s mately stop, plaintiff feet the coming 120 to a that it hit into the about a foot and enough with force to throw him air half the automobile, the of the defendant’s above hood plaintiff the automo- then struck the of windshield defendant’s ground about from bile, the and' the hit 18 feet impact. defendant point the of there was evidence the While per miles the evi- traveling speed from 20 hour, at a excerpts the from dence shown to authorize above was sufficient charge complained of. assigns excerpt error on Special charge: degree Gentlemen, from is of care “Now, there chargeable ordinary cases, In is defendant. prevention in- ordinary care must exercise defendant exception But where to himself. is rule age years fourteen is is Now, child under the concerned. diligence required with law reference age charge you child under the fourteen. that children under chargeable contributory negligence fourteen with years age are physical from care as their mental resulting a want exercising, they fits assume the risk them dangers known patent, they those obvious and are able appreciate and avoid.” “defendant” opening use italicized words “plaintiff” er- excerpt than is assigned
sentences of the rather use word ror. It “defendant” palpably clear tongue” mere opening “slip sentences was a the, excerpt quoted in view of the remainder of could have jury. according plaintiff, misled the evidence adduced trial, years on the was 12 time old at the of the incident and years excerpt when old, defendant 54 the whole com- plained together of is considered not have tongue” “slip by-the judge. misled trial assigned Error excerpt is also on the remainder of the exception it is because contended that there “person rule that a ordinary pre- must exercise care for the vention of injury to himself.”
“Due years- care child tender is such care as ca its mental pacity, fits it for physical, exercising actual circumstances investigation.” occasion situation under Code App. 694, 105-204. Streetman v. Bussey, § (104 E. recovery sought 517)) injuries where because of years a boy who old was struck while crossing a street, was said: “In this less case, however, plaintiff, being a child than years fourteen age, not bound to exercise the or *3 prudent dinary every only care of man, exacted but was bound age to to according capacity. exercise due and Kendrick care High Mfg. App. v. Shoals 21 Ga. Co., 987); S. E. Parks Code, Ann. of rule 1933, 105-204, supra].” The § § [Code case, given jury charge present in the was not error. ground assigns Special excerpt 4. error on an from the charge charge follows: “I a you, as that whether Gentlemen, person was injury consequent the extent of suf injured, and fering entirely question jury; and he testifies where he was can and accept that and suffered, knowledge preference credit his testimony based on his to college physicians he in a whole that was not jured. Take that, Gentlemen, general connection with the charge judges pre are that evidence, where ponderance lies.” of the evidence not charge
The defendant contend that here does com- plained was principle not correct law but asserts he plaintiff made no contention that the. was not injured, and emphasized the excerpt unduly plaintiff’s to his testimony as injuries. testimony George The defendant introduced of Dr. medical the case that who testified from records
Pilcher, was impaired when medical record plaintiff’s health not that would nothing in his and completed, pain for weight lose “or to suffer an extended person cause or other engage able in athletic period of months or to be not testi- physical definite conflict activities.” There was suffering was still mony plaintiff that he testimony and the the charge com- injuries at the time the trial and plained was not error. charge excerpt of an of the Special complains money ability to earn
dealing with because because, among the. future “there no evidence things, other there had been or lost lost in the future.” pain suffering from time to his testified as up trial, and as to what he until the time he not fact that time, and could do at injuries trial, time was under medical care for such at the he would would testify as to what or not did pain to what he would suffering in the future, do (Had pain undergo in the future. he testified as subject objection. have been suffering would Ray App. 763, v. E. 2d While Dr. Wood, 93 injuries to scars, result of the Davidson testified plaintiff’s ordinary legs, activity, touch he did testify cause diseom- touching that such scars would pain comfort while an element plaintiff, may disfigure- authorized take the have been suffering (Langran Hodges, ment the scars into consideration caused 567, 569, 489), complained 4 S. E. 2d *4 premise. Accordingly, charge not was was based on such this it an grant error new trial since requiring the authorized damages supported by not the evidence. item of The case Hutchins, App. E. 2d involved 475), Jones v. earning diminution in case the where'there was i.e., earnings injury, amount capacity plaintiff; the percentage disability resulting work, and nature of earning in which her had capacity manner injury, and the as only evidence was evidence been decreased. Here the ref- was instructed with plaintiff’s injuries properly the jury (an element labor, work impairment erence dealt pain suffering). case, Jones with supra, of a diminution of situation there was evidence where as is case, and, not distinguished, was as only present case, where there labor. impaired capacity work and evidence as to again gen- Inasmuch be tried the case must unusual eral motion will grounds passed for new trial not be except by that the verdict rendered was demanded to state alleged special complained nor will error evidence, ground be inasmuch as on another trial inci- considered complained probably not dent of will reoccur.
Judgment reversed. Felton, C. J., Gardner, Townsend, J., P. Carlisle and Frankum, JJ., J., concur. Bell, disents. After Judge, dissenting. concurring majority with the
Bell, in their as to first grounds nine motion for trial, new I am constrained disagree with conclusion (10). reached Ten Ground This asserts that charging jury court erred in follows: “But if the should think he to recover on is entitled the, injury person account of jury to his duty damages. to determine the amount that connection court jury instructs one item damage, where there value of liability, the reasonable lost due earnings, injury will extend injury into But that should future. you compensate injury the defendant for damages lost earning capacity or because incapacitated he is be- cause of injury, have to reduce to its value present .” objection The movant’s to this instruction is follows: charge this “Movant- avers erroneous because there evidence that there lost had lost capacity the future and no- the, compute certainty with pecuniary reasonable value earning capacity future, future lost any, injurious being because it movant authorized the award which there was no evidence of existence *5 compute dam- as to how to of such and evidence they if did exist.” ages to be erroneous the instruction claiming basis, then, any loss of to find upon which there was future, and no earning capacity in the or lost compute certainty with reasonable the jury which damage, found. any value if
pecuniary these elements this instruction authorized The contention is further damages for which there no evidence jury to award computing such dam- damage existence of such basis or as ages they did exist. any, sufficient, or not or whether there was
As injuries permanent nature which to existence find future, earning capacity, the record would affect shows presented. record discloses the such has been fourteen testimony: years “I was twelve old then and I am years per- question am I able to your now. As to old form the or the same manner that I could play same duties play like football well, or did before I used accident, puts it play have to over to football and strain but bend now part I leg being on this it hurts. am treated and reporter’s in the injury.” record, result Further, jury go was allowed note shows that the room with counsel so could view the, the in- injuries legs. page, same Also, witness’ jured boy’s I was be- playing states: “I football said it when bend over fore that time but I haven’t since because I Before, puts I hurts. a strain on those and it the accident cuts trips activities camping engaged football, baseball, perform like accident I can like that. Since the activities performing any of those painful it is I I am but when do. painful. I did Before accident activities now because it is of stuff but running jumping and all sorts exercises of that or since accident I to do have not painful. like do it is don’t of that because it hurts.” to do- because I have to. I don’t like sometimes testifying: result of "As a injured boy quoted Further, there and I was sore all my legs hurt and down accident over especially up pain down here. four or This lasted five six pain period months. The lasted that of time pain my my stomach. As a result the accident legs hurt, they ache when I am a lot tired when I over, bend *6 they pain legs just me and my now then.” hurt
The further record shows Dr. [R], who cared for in- jured boy, testified as follows: deep rather long had “[H]e upper thighs lacerations both . They through extended through the skin part and fat and of the am There, muscle. I speaking deep hamstring group posterior in muscles aspect thigh. might say You function of those muscles flex help leg and extend the let to some me extent, but refresh my just memory here minute. This lacera- is muscle. The tion just through extended few fibers of muscle itself. muscle itself is very thick testi- muscle.” Dr. further [R.] fied: only regards “The note I have his face or head this small puncture right in- wound his “We were temple”, terested whether or not any damage done”, nerve been had developed complications “There particularly wounds, more on right leg; slight there was separation on the lateral side, part right thigh.” outside the wound on the
The testimony fragmentary cited above is doctor’s total general testimony, and doctor’s as he were, conclusions opinion stated to jury, that his there was permanent injury boy. However, done compelled accept against his their own observations their own views of the testimony boy. record discloses that the of the mother injured boy included boy statement: “After the days came home he was in for ten bed and he wait on couldn’t at He himself all. couldn’t bathe didn’t himself, he have bath- required my room couldn’t privileges, and, he walk of course, it waiting on him help because I at I had had at home all. everything. on him for Then wait at the end of that time put kept days, we him in a wheel chair and him ten about ten on days, standing somewhere between and twelve with him just begin straight feet intervals to walking his at then out just began let him in the house at until we walk odd times he I began really walk, strength walk, After he get back. his legs like out to walk with noticed he would have his whether leg, feet. That his I know drag cut didn’t feet or not dragging to have boy going a life kept six I would That on for months and really worried me. everything pick I to do your up’, wanted say, ‘Son, can’t feet engage push along.” him “He was engaged activities after the he same accident.” (D) of his examination of the
Dr. testified that as a result one each scars, over found: “He has three rather noticeable left upper posterior over distal third thigh, and one thighs healed, were well tibia. that I found The scars wound, deep rather although fairly broad, probably implying a which had closed.” scars pictures addition the shows record numerous *7 boy’s in body
contained on the which were admitted evidence jury. and exhibited to the interspersed the is
Admittedly referred to here is exhibits. through voluminous While it the acknowledged expert and freely there was evidence both general permanent never- boy any did not suffer injury, the upon in the theless there is record sufficient evidence was in could conclusion that the some base a injuries. permanently injured by and affected these The contention of the there was second movant is earning of future which the capacity loss compute their certainty with reasonable value. pecuniary in injury But in mind that case the it must be borne was to trial 12-year-old of the case in boy, and the was held his four- year. regularly teenth there is to an Where infant age expected to employed, regularly and not of the be em- ployed, any the determination loss of future must be, substantially in nature its left the sound discretion jury. possibility There of detailed itemization is computation earnings loss of future infant keep life. earning phase of his We must embarks rights into it enters realm of infant’s mind the law as law length place is of the market cold, arm’s law Georgia from courts have of the adult world of conflict. Mr. Jus- early recognized implemented times this attitude. 77) (77 E. 198, Hancock, tice Hill in Betts Co. v. minor states: “The evidence shows different' age years. case', under of 14 In such a is rule sues from where the one is an adult. Where an adult capacity personal proof earning must injuries, there be com- support plaintiff, order such a in- plained personal sue for of here . . . But where minors Georgia Supreme juries, the rule seems to otherwise.” The Hancock, approval quoted with case further Court language Buckry-Ellis Ry. Co., Mo. Pac. 912-914): of tender Mo. S. W. “As to infants impossible give pecuniary is evidence of value years, it question of probable therefore the loss; rule is that the earning impairment on damages for loss account judgment, and conscience capacity experience, is left the sound . Mr. proof thereof whatever jury, without substantially, says 514, work Watson, Damages, § untried, infant of an speaking whose amount require specific pecuniary that to alto- recovery on this deny such cases would be expressly gether. distinction therefore that a result plaintiffs recognized between such cases and where the cases prove prior inability adults. The are fact in- against to be probable invoked is not wrong-doer innocent victim and the fant; for, as between con- suffer the latter, not the should former, tort, *8 And loss.” extent of the in the sequences uncertainty of (138 Co., 158 Mo. Ferrier Mercantile Schoenberg in sought for recovery is said: “When a 893-894), it is S. W. possible pleader past earnings, is of time or loss is for he respect matter, of in a fair estimate and claim make past, it. pertaining It is all facts possessed then of however, true, is experience. Such knows the from one loss where, earnings for the loss of claim is in case foresee one can for no future, in diminished with certainty such loss this may be; especially what recognize true in the this case of an infant. Indeed, the courts feature matter extent such an as to affirm in cases trade, is an where the infant with no^fixed avocation or conjecture wholly prob- even therefore unable what earnings of re- calling may be, future and loss therein a covery may be any proof allowed that score without what- ever suggesting amount’; citing numerous authorities.”
The contention of the movant here is evidence that there is no however, for the determination of this monetary minor; loss of proof alone impairment agility permanently of minor’s proof muscular coordination and some control Would be future. earning capacity loss of There also evidence opinion have in the from which could based an record basis be suf- earnings, any, to' loss this juiy taking the action support, proper, ficient to The; damages. shows awarding into account record element injured Bachelor Science boy held the father Georgia Tech, from and it shows engineering technical called contracting business, running him to business employs Waterproofing Company, Southern which some persons. were to 40 The father and mother of the juiy before the from this had some evidence family station which is relevant in life of their determining infant child. proper base prospective This is which to a child’s majority. after See the observations of (152 subject courts on in Gill v. 51 R. I. A. Laguerre, (33 796) 795, Lee, 1110). and Morel v. Ark. 985 S. W. 2d support thought appears Note inference in of this also the, Division 2 as shown majority quote the cited Brown v. Ga. 1 Mathews, case of S. E. also length expectancy properly child shown life in evidence. following: in the record shows the “After he
got pick hospital guitar. out all about do was bicycle He not ridden since the accident, has he tried . legs great he was deal hurt his Before the accident *9 home. help doing chores around business and around the perform those acci- He has seldom been able to duties since' the he has been lot of around help dent. Before the accident load- running years, hé has tractor three or four farm, performing ed and The activities he had been unloaded trucks. accident, activities after the accident, before the those ceased he dropped quit. perform them and He not been he has up point but then he will sit in of them to this now and physical physical office for me work, heavy but work.” engage “He same after Also, not able to activities engaged injuiy before the accident.” evidence, does sufficient evidence, The record have some lay groundwork determining the loss of future justifiably of this and it was minor, submitted Although jury for their consideration. the evidence specific might be monetary loss that entailed in for an specific not as for an adult, would be it is sufficient boy’s age award by the infant here concerned. Within instructions, its could have found permanent injury evidence that there was no to the infant justifiably, loss of earning capacity, they also, slight permanent thus some could have injury, found some slight jury’s verdict the future. The $2,500' awarding the amount of for all sus- misapplication was no tained indicates that obvious basis evaluating damage, and there is insufficient element objection as raised Ten movant’s Ground (10) motion for trial defendant’s a new trial. The court’s re- overruling order trial not be the motion a new should assignment (10). on the versed error stated Ten Ground holding Jones v. Hutchins, construe the As support E. 475), 2d it tends to conclusions as- in this dissent. serted