American Fidelity & Casualty Co. v. Farmer , 77 Ga. App. 187 ( 1948 )

1. Divisions 1, 2, 3, and 4 of the opinion in the case of American Fidelity Casualty Company v. Farmer, ante (No. 31953) are applicable and controlling on the same assignments of error in the present case.

2. The verdict is authorized by the evidence.

3. Division 6 of the opinion in American Fidelity Casualty Company v. Farmer, ante, is applicable and controlling on the same questions in this case.

4. Divisions 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, and 18 of the opinion in American Fidelity Casualty Company v. Farmer, ante, are applicable and controlling on the same questions in this case.

(a) The objection interposed at the trial to the evidence is not set out in ground 20 of the amended motion and for this further reason this ground is without merit.

5. A request to charge containing the statement that the jury should consider the inclination of the plaintiff to work before the accident occurred is not a correct statement of law, where the allegations in the petition are for damages due to pain and suffering, of which the loss of ability or capacity to labor is a species. It was not error to refuse to give in charge to the jury the request set out in special ground 17 of the motion.

6. The court did not err in overruling the motion for a new trial.

DECIDED APRIL 29, 1948. REHEARING DENIED MAY 26, 1948. Mrs. Emily Farmer sued Ralph M. Bowman, doing business as Bowman Transportation Company, and American Fidelity Casualty Company, his insurance carrier, in the Superior Court of Dade County, seeking to recover damages for personal injuries sustained in a collision between a truck of the defendant Bowman, driven by his employee, and a wagon in which the plaintiff was riding with her husband along U.S. Highway No. 11 in Dade County, Georgia. This is a companion case to that of J. J. Farmer against the same two defendants, and the allegations of the petition in this case are the same as the allegations of the petition of J. J. Farmer in American Fidelity Casualty Co. v.Farmer, ante, with the exception that no special damages are sued for in this case and the allegations of the two petitions as to the personal injuries sustained by J. J. Farmer and Mrs. Emily Farmer and the amounts sued for are different. The plaintiff in this case alleged that as a result of the collision she sustained injuries about her head, chest, back, shoulders, and other parts of her body, that her left arm was broken, that the phalanges of her left hand and the bones of her left wrist were broken and the muscles and ligaments thereof torn and strained, as a result of which she lost the use of her left arm to the extent of 90%, and that her head injuries included a concussion of the brain, causing severe headaches intermittently, which she has been advised will continue to recur, and that she suffered severe nervous shock, has attacks of dizziness, and that she was confined to the hospital for 12 days, thereafter at her home in bed for 3 or 4 weeks, and to the house for several weeks thereafter, as a result of these injuries, and has undergone intense pain and suffering, and will continue to suffer hereafter, and that her injuries are permanent, and that the petitioner is entitled to recover exemplary damages to deter the defendant, his agents, and employee, from repeating such trespass, and as compensation for the wounded feelings of the petitioner, because the driving of the vehicle into and against the wagon in which petitioner was riding when the way for clear and free passage was open constitutes aggravating circumstances and shows a conscious indifference to the safety of persons using the highway. The plaintiff prays for process and that service be made on the Comptroller General of Georgia as agent for the defendant Bowman and on William A. Mitchell Jr. of Atlanta, as agent for the defendant insurance company, and for judgment for $20,000 as damages for personal injuries.

The defendants filed pleas in abatement on the same grounds as those set out in American Fidelity Casualty Company v.Farmer, ante. The plaintiff demurred generally to the pleas in abatement and the trial judge sustained the plaintiff's general demurrers and dismissed the pleas in abatement. The defendants excepted pendente lite.

The plaintiff amended her petition by striking therefrom the word "Incorporated" wherever the same appeared after the trade name of "Bowman Transportation Company," and the defendant Bowman demurred to this amendment on the grounds that the amendment set out a new and different party to the one originally sued and that a new process was not issued and served on the defendant. The trial judge overruled the demurrer, and the defendant Bowman excepted pendente lite.

The defendants filed general and special demurrers to the plaintiff's petition and the special demurrers raised substantially the same objections as did the pleas in abatement. The court overruled these demurrers, except as to the ground complaining that the plaintiff had not attached a copy of the insurance policy sued upon. The plaintiff amended her petition in the same manner in this respect as the plaintiff did in AmericanFidelity Casualty Company v. Farmer, ante, and on the call of the case for trial, the court overruled a motion to strike the case from the docket for failure to comply with the demurrers. The defendants excepted pendente lite to these judgments.

In their answers the defendants deny the allegations of negligence charged in the petition and deny liability for the alleged injuries to the plaintiff. This case was tried together with that of American Fidelity Casualty Company v. Farmer, ante, and the jury returned a verdict for the plaintiff for $5000 and judgment was entered accordingly. The defendants made a motion for a new trial, which was later amended by adding 21 special grounds, and the motion as amended was overruled. The defendants, as plaintiffs in error here, except to the sustaining of the plaintiff's demurrers to their pleas in abatement, to the overruling of the defendants' demurrers to the petition of the plaintiff, to the overruling of the motion to strike the case from the docket, and to the judgment overruling the motion for a new trial.

This case and the case of J. J. Farmer (No. 31953) against the same two defendants were tried together and the evidence on the trial, in so far as it relates to this case, is the same as that set out in American Fidelity Casualty Company v. Farmer, ante, and only that evidence pertaining to Mrs. Farmer's personal injuries, and which is not shown in that case, is set out here.

Mrs. Emily Farmer testified that, as a result of the collision of the truck with the wagon on which she and her husband were riding, she was knocked unconscious and regained consciousness after she was carried to the hospital, and that she received injuries to her head and chest, that two ribs were broken, and both bones of her left arm were broken just above the wrist, that her left arm was in a cast for 5 weeks, and thereafter in a sling for 7 or 8 weeks, and that while in the hospital and since, she has suffered from dizziness and severe headaches on account of her head injuries, that her chest injuries have caused severe pain and suffering, the headaches and dizziness being intermittent, and the pain in the chest being more or less constant, and that she was in the hospital for 10 and 3/4 days, thereafter in bed at home for 3 weeks, and thereafter confined to her home for 2 months, and that since the accident she could not do her house work as well as she could before she was injured, could not do any washing, and could only milk with one hand, but that before the accident she had the full use of her left arm, hand, and fingers, indicating to the jury the present use, and that she was not nervous prior to the accident, but that "most any little thing" upset her now; that she was 63 years of age at the time of the trial.

Dr. D. S. Middleton testified that he had examined Mrs. Farmer after the accident, and that her arm was in a cast at the time, and she was suffering such intense pain in her chest that she could scarcely get her breath, and that from an examination now he could tell that her arm had been broken and in his opinion there was a 50% permanent disability of the left arm, and that her dizziness was the result of some injury to a nerve, and that since the accident he had treated the plaintiff for dizziness and headaches. 1. Divisions 1, 2, 3, and 4 of the opinion in the case of AmericanFidelity Casualty Company v. Farmer, ante, deal with the rulings of the trial judge on the plaintiff's demurrers to the defendants' pleas in abatement; the defendants' demurrers to the plaintiff's amendment to the petition; the general and special demurrers of the defendants to the plaintiff's petition, and the motion of the defendants to strike the case from the docket. The same assignments of error are made in the present case as were made and dealt with in divisions 1, 2, 3, and 4 in the case just referred to and the rulings there made on such assignments of error are applicable and controlling on the same questions in the present case. Accordingly, the trial judge did not err in sustaining the plaintiff's demurrers to the defendants' pleas in abatement; the defendants' demurrers to the plaintiff's amendment; the general and special demurrers of the defendants to the plaintiff's petition, and the motion of the defendants to strike the case from the docket.

2. The evidence, though conflicting, is sufficient to support the verdict, and the judge did not err in overruling the general grounds of the motion for a new trial. This being the sole question presented for consideration under the general grounds, the other contentions of the defendant with reference to the general grounds of the motion cannot be considered by this court, for the reasons given in division 5 of the opinion in AmericanFidelity Casualty Company v. Farmer, ante, which ruling is applicable and controlling here.

3. Special grounds 1, 2, 3, 4, 12, 13, 14, 15, and 16 of the amended motion for a new trial in this case are the same as the corresponding nine grounds in the case of American Fidelity Casualty Company v. Farmer, ante, which are dealt with in division 6 of the opinion in that case. The rulings there made are applicable and controlling on these same grounds in the present case.

4. Special grounds 5, 6, 7, 8, 9, 10, 11, 18, 19, 20, and 21 of the amended motion for a new trial in this case are the same as the 11 grounds which are dealt with in divisions 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, and 18, respectively, of the opinion inAmerican Fidelity Casualty Company v. Farmer, ante, and said rulings in that case are applicable and controlling on these same questions in this case. In special ground 20 it does not appear what objection was interposed to the evidence therein referred to and for this further reason special ground 20 in this case is without merit. See Clare v. Drexler, 152 Ga. 419 (5) (110 S.E. 176).

5. In special ground 17 error is assigned on the refusal of the court to instruct the jury that "in determining the damage from permanent loss of ability to work, if any, by Mrs. Emily Farmer, you should consider her capacity and inclination to work before the accident occurred, her probable life expectancy, her health and physical condition before the accident occurred, her probable loss of her capacity to work due to old age, illness, and causes other than the accident." The plaintiff did not sue for damages due to decreased earning capacity, but sought to recover damages for pain and suffering occasioned by her alleged injuries. The loss of ability or capacity to labor occasioned by physical injuries is a species of pain and suffering and a proper element of compensation. Langran v. Hodges, 60 Ga. App. 567 (4 S.E.2d 489); Rome Ry. Light Co. v. Duke, 26 Ga. App. 52 (105 S.E. 386). The fact that the plaintiff was a housewife and attended merely to the duties around the house did not deprive her of the right to recover for loss of ability to work; however, whether or not she was inclined to work before the accident would not determine whether or not she was entitled to recover damages for loss of ability to work, nor would such inclination be a proper element to be considered by the jury. A person is not deprived of the right to recover damages because of inability to labor in the future because at the time of the injury such person was not employed, or because prior to such injury she may or may not have been inclined to labor. The requested charge did not state a sound principle of law, and the court did not err in refusing it.

6. The verdict is supported by the evidence, no error of law appears, and the judge did not err in overruling the amended motion for a new trial.

Judgment affirmed. Felton and Parker, JJ., concur.