Bussey v. Thomas , 123 Ga. App. 653 ( 1971 )

Pannell, Judge.

Plaintiff appellee brought an action against the defendant appellants, seeking recovery for injuries sustained in an automobile collision "for past, present and future physical injuries, and past, present and future mental anguish, pain and suffering” together with medical expenses. A verdict was rendered by the jury in favor of the plaintiff and against the defendants. The defendants appealed to this court, enumerating error on a charge of the court relating to damages because of loss of future earnings. The record, as perfected by order of the trial judge, shows the following transpired after the court charged the jury: "By the Court: Any exceptions or objections? By Mr. Pierce [plaintiff’s attorney]: If your Honor please, you charged the jury with reference to future earnings, and there was no earnings lost. I don’t think it will confuse the jury, though. I don’t have any objections to the charge. By the Court: Well, you had the allegation in there about loss of earnings. One doctor did say that she would never be able to work, or something. By Mr. Pierce: I think you correctly gave it. By the Court: All right, sir. Mr. Fulcher.” Whereupon Mr. Fulcher (defendants’ attorney) made extensive objections to the charge, whereupon the following occurred: "By the Court: Well, how do you think it can be corrected, Mr. Fulcher? By Mr. Fulcher: I think it could be corrected by instructions to disregard all of the charge with reference to the loss of earnings, past, present and future. By the Court: Do you want it done? By Mr. [Pierce |: No, sir, I don’t want it done. By the Court: All right sir, I make the point that no motion was made to strike that allegation of the plaintiff’s complaint before the case went to the jury.” Mr. Fulcher, attorney for the defendants, made no objection, exception or response at this point, but remained silent. No correction of the charge was made. The court’s order perfecting the transcript discloses that the court was under the impression that the statement made by Mr. Pierce, "No, sir, I don’t want it done,” was made by Mr. Fulcher, which subsequently proved to be incorrect and an order so stating was entered. Held:

Argued January 5, 1971 — Decided April 16, 1971. Fulcher, Fulcher, Hagler, Harper & Reed, E. D. Fulcher, A. Montague Miller, for appellants. Max Rubenstein, Hinton R. Pierce, Franklin H. Pierce, for appellee.

1. There was no express waiver by counsel for the defendant of the objections made to the charge, and we are of the opinion that after objecting, and offering a method of cure of the error claimed, his silence under the particular circumstances here was not a waiver of the objections already made.

2. The complaint did not seek damages for loss of future earnings nor was there any evidence to sustain a finding in that regard. It was, therefore, error to charge the jury on the subject. See Ga. Power Co. v. Moore, 121 Ga. App. 480 (1) (174 SE2d 478); Hunt v. Williams, 104 Ga. App. 442 (122 SE2d 149); Smith v. Burtts, 116 Ga. App. 649 (158 SE2d 702).

Judgment reversed.

Bell, C. J., and Deen, J., concur.