Southern Cotton Oil Co. v. Skipper , 1906 Ga. LEXIS 161 ( 1906 )

Lumpkin, J.

(After stating the foregoing facts.) In one respect this ease brings to mind the words of Juvenal: “Bara avis in terris, nigroque simillima cygno.” Its quality of rarity consists in the fact that counsel for both sides concur in the opinion that the trial judge erred in giving to the-jury a particular charge, and that a new trial should be granted. In this unusually harmonious view we concur with them. Thus is furnished the spectacle (more rare indeed than a black swan) of a court of last resort being able to render'a judgment which, as to one point at least, meets the concurrent views of counsel for both litigants. At this point, however, the harmony ends; and there are numerous subjects of disagreement. ■

The headnotes cover the substantial questions in the case, and do not require elaboration. The other matters which are presented in the motion for new trial are of such a character that they are not likely to again arise, and therefore do not require specific consideration. The writer deems it proper to say that he has never been able to approve a part of what was said in Pierce v. Atlanta Cotton Mills, 79 Ga. 782, which has been to some extent followed since. If the common-law rule with reference to master and servant has been modified by the Civil Code, §3850, as was held to be the case in Hill v. Callahan, 82 Ga. 113, it is not easy to see why that section does not become an integral part of the law of such a case. It declares, that “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. But in other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.” To hold that this applies to a suit by a servant against a master on account of negligence of the latter, but that it need not be given in charge unless requested, seems to be out of harmony with the current of other cases. It is not generally held that in actions for personal injury the plaintiff, by alleging that he was without fault, stakes his entire right to recover any amount upon that allegation, and that he must admit in his declaration that he was somewhat at fault before he can obtain the benefit of the right to.recover diminished damages. It has usually been thought that the greater includes the less, and that if a plaintiff seeks to prove that he was entirely faultless, yet the jury believe from the evidence that he is somewhat, at fault, but that his negligence is not such as to prevent a recovery, a verdict may be rendered in his favor, but the amount of it would be diminished according to the extent of his negligence. The decision in the Pierce case would seem to have the result of applying the section of the code referred to differently, according as the plaintiff might be an injured servant or another. Besides, the various limitations. stated in the decision in the Pierce case (79 Ga. 784) practically make the ruling applicable to that case alone, or one exactly like it. Thus it says that “where the declaration alleges that the plaintiff was without fault, and she did not claim damages for contributory negligence in the court below nor in this court, it is a rule that there can be no dispute about that, if a party complaining of an injury of this kind, not an injury caused by a railroad company, could have avoided the injury, or if the party by his own negligence contributed to the injury, no recovery can be had for full damages. . . So we think there is no error in that charge, inasmuch as the plaintiff claimed full damages, and did not insist before us that she was entitled to damages if she contributed to the injury, and did not rely on section 2972.” (Civil Code, §3830).

Damages are given as compensation for the injury done, and generally this is the measure where the injury is of a character capable of being estimated in money. If a plaintiff is entitled to recover full damages on account of a personal injury of a permanent character, one element of such damage, if the evidence authorizes it, is a fair and reasonable compensation for the loss of what he would have otherwise earned in his trade or profession. To recover for loss of probable future earnings, the plaintiff must furnish some basis in the evidence. The mortality and annuity tables are often introduced, along with evidence as to age and decreased capacity to earn money, in cases of permanent injury; but there is no absolute rule which requires the jury to be bound by such tables. Florida Central R. Co. v. Burney, 98 Ga. 1. Indeed some courts of high authority have gone so far as to approve charges submitting generally to the jury the question of what would be a fair and reasonable compensation for such loss, taking into consideration what, under the evidence, the plaintiff’s income would probably have been, how long it would have lasted, and all the contingencies to which it was liable. Vicksburg R. Co. v. Putnam, 118 U. S. 545; Phillips v. Southwestern Ry. Co., L. R. 4 Q. B. Div. 406; Wood’s Mayne on Damages, §627; Thompson on Trials, §2077; Field on Damages, §615.

As to what amount should be awarded for pain and suffering, the law prescribes no exact mode of computation, but declares that it must be reasonable, and the jury should apply an enlightened and impartial conscience to its determination.

Judgment reversed.

All the Justices concur.