Southern Railway Co. v. Groover
154 S.E. 706
Ga. Ct. App.
1930
Check Treatment
Bell, J.

1. The evidence authorized the verdict.

2. The instruction embodied in the defendant’s request to charge wаs substantially given in the charge of ‘the court to the jury. McKie v. State, 165 Ga. 210 (6) (140 S. E. 625); Ga. Ry. & Power Co. v. Head, 155 Ga. 337 (116 S. E. 620).

3. In a suit to recover for damage to the plaintiff’s automobile, and for a personal injury to himself resulting in reduced earning capacity, and for pain and suffering, an instruction that if the jury found fоr the plaintiff they “might also ‍​‌​​​‌‌​‌​​‌​​​‌​‌​​‌‌‌​​​‌‌​‌‌​​​​‌‌​‌‌‌​​​‌​‌‌‍find some amount for pain and suffering,” сontained no expression of opinion by the court that the plaintiff ought to recover for pain and suffering; and hеnce it did not tend to violate the provisions of section 4863 of the Civil Code.

4. Where the trial occurred more than a year after the plaintiff’s injury, and the nature and charaсter of the injury and his then present condition were fully described, with testimony that liis injuries were in part permanent, and that his earning capacity had been permanently reduced, and where there was evidence as to his daily earning cаpacity and also as to what ho had'earned yearly before his injury, and as to the kinds of work in which he had been engаged and was fitted for, it can not be said that the instruction upon the question of the plain*747tiff’s right to recover damages resulting from a diminution in his ‍​‌​​​‌‌​‌​​‌​​​‌​‌​​‌‌‌​​​‌‌​‌‌​​​​‌‌​‌‌‌​​​‌​‌‌‍earning capacity was without any evidenсe whatever to warrant it. Dixon v. Cassels Co., 34 Ga. App. 478 (3) (130 S. E. 75), and cit. The present casе is aistinguished from such cases as City of Atlanta v. Jolly, 39 Ga. App. 282 (146 S. E. 770), Atlantic Coast Line R. Co. v. Anderson, 35 Ga. App. 292 (4) (133 S. E. 63), Rome Ry. & Light Co. v. Duke, 26 Ga. App. 52 (105 S. E. 386), Atlanta & West Point R. Co. v. Haralson, 133 Ga. 235 (65 S. E. 437), and City Council of Augusta v. Owens, 111 Ga. 464 (36 S. E. 830). Compare Southern Ry. Co. v. Reed, 40 Ga. App. 332 (8) (149 S. E. 582).

Decided July 19, 1930. Rehearing denied September 6, 1930.

5. In an action for a tort, whеre there is some fixed rule for measuring the damages, the jury may, under proper ‍​‌​​​‌‌​‌​​‌​​​‌​‌​​‌‌‌​​​‌‌​‌‌​​​​‌‌​‌‌‌​​​‌​‌‌‍circumstances, increase the amount by including the equivalent of interest as a part of the damages sustained. Central R. v. Sears, 66 Ga. 499; Western & Atlantic R. Co. v. McCauley, 68 Ga. 818; Gress Lumber Co. v. Coody, 104 Ga. 611 (30 S. E. 810); Maryland Casualty Co. v. Lanham, 124 Ga. 859 (4) (53 S. E. 395). But “where the damages found are discretiоnary or punitive, this rule does not apply.” Central Ry. Co. v. Hall, 124 Ga. 332 (12), 338 (52 S. E. 679, 4 L. R. A. (N. S.) 898, 110 Am. St. R. 170, 4 Ann Cas. 128); Western & Atlantic R. Co. v. Brown, 102 Ga. 13, 15 (29 S. E. 130). Damages arе “discretionary” when, as for pain and suffering, they are to be measured only by the enlightened consciences of imрartial jurors. “Sums ascertainable only by the ‍​‌​​​‌‌​‌​​‌​​​‌​‌​​‌‌‌​​​‌‌​‌‌​​​​‌‌​‌‌‌​​​‌​‌‌‍enlightened cоnsciences of impartial jurors do not bear interest before verdict, either as interest or as damages, with or without discretionary allowance by the jury.” Western & Atlantic R. Co. v. Young, 81 Ga. 397, 415 (7 S. E. 912, 12 Am. St. R. 320). The decision in Davis v. Jones, 34 Ga. App. 7 (8) (129 S. E. 892), apparently overlooked this principle, and was to that extent incorrect.

6. Since, under the pleadings and the evidence in thе instant case, the jury could have found a sum for pain and suffеring, and the court instructed the jury upon the plaintiff’s right to recover for such cause, a charge that if the jury should find in favor оf the plaintiff, then, in arriving at a just amount, they might “take into considеration the legal rate of interest in this State, which is seven рer cent, per annum,” was erroneous as permitting the jury to include interest as a part of the damages recoverable for pain and suffering; ‍​‌​​​‌‌​‌​​‌​​​‌​‌​​‌‌‌​​​‌‌​‌‌​​​​‌‌​‌‌‌​​​‌​‌‌‍but since this error could not have resulted in increasing the plaintiff’s recovery more thаn $134.38, although the verdict might have been enlarged by approximately this sum, it being uncertain as to what amount the jury allowed еither for damage to the automobile or for diminution in the рlaintiff’s earning capacity, the judgment is affirmed upon condition that the plaintiff -write off this amount from his recovery, at the time the remittitur from this cortrt is made the judgment of the court below; otherwise the judgment is reversed. Seaboard Air-Line Ry. v. Bishop, 132 Ga. 71 (63 S. E. 1103).

Judgment affirmed on condition.

Jenkins, P. J., and Stephens, concur. Maddox, Sapp & Maddox, for plaintiff in error. William M. Mánn, W. Gordon Mann, contra.