Payne v. Meadows , 27 Ga. App. 412 ( 1921 )

Bloodworth, J.

1. The petition as amended set out a cause of action, and the court did not err in overruling the demurrer.

2. Under the evidence in the case, and when read in connection with the remainder of the charge, there is no error in the excerpts from the charge of which complaint is made in the motion for new trial.

3. The verdict is not without evidence to support it, and is not excessive in amount. The trial judge found no fault with it, and this court will not disturb it.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.

The defendant demurred to the petition generally and specially. The special grounds relied upon in the brief of counsel were, in substance, that the allegations of paragraphs 9 and 10 of the petition were too vague and indefinite, and set forth conclusions of the pleader, without the facts upon which they were based.

The first special ground of the motion for a new trial is: “ Because the verdict is excessive, not warranted by the evidence, and shows bias and prejudice on the part of the jurors trying the case, and because the evidence shows that the plaintiff is entitled to nominal damages only.”

For the alleged reasons that the instructions complained of were not authorized by the evidence, that the evidence showed that the inconvenience and physical illness of the plaintiff were not a natural or reasonable consequence of the alleged tort and could not have been anticipated, that she suffered nothing more than mental anguish, or physical pain unaccompanied by physical injury, and her pain and suffering were not the result of the alleged tortious act, but were due to other and contingent circumstances, the motion for a new trial assigns error upon the following extract from the charge of the court: “ The plaintiff sues in this case for pain and suffering and also for permanent injuries which she claims she has sustained. If you think she is entitled to recover, you would, in estimating the damage, allow her such an amount as in your judgment, under the evidence, would compensate her for the pain and suffering which she has already endured by reason of the injury received, if you believe, under the evidence, she will continue to suffer. The loss of capacity to labor, occasioned by physical injury, may be considered by the jury as in the nature of pain and suffering, although no pecuniary loss therefrom may be shown.”

It is alleged that the court erred in charging as follows: “ If you believe, however, that the negligence on the part of the defendant was such as to cause her the injury which she alleges in her petition, then you would be authorized to find in her favor such an amount as you might see fit and proper as damages for the injury which she has sustained, as you may 'find from the evidence. This amount of damages you must arrive at from the evidence, as upright and impartial jurors. Under our law, where a person is entitled to recover damages for pain and suffering, the enlightened mind and conscience of the ju^i, of impartial jurors, is the only manner in which the amount could be estimated; and in giving damages for pain and suffering under these circumstances the jury should be careful not to act oppressively or do an injustice to either party.” This extract from the charge is complained of for reasons similar to those stated in the preceding ground of the motion for a new trial, and for the reason that “ the recovery should have been limited by the charge of the court to nominal damages only.”

Felton & Felton, Yeomans & Yeomans, for plaintiff in error. G. G. Robinson, T. S. Felder, contra.