Judges： Lumpkin
Filed Date： 11/15/1895
Status： Precedential
Modified Date： 10/19/2024
1. 'The reporter has been directed to prefix to this opinion a statement of the instructions given by the trial judge with reference to the methods of using the mortality and annuity tables. As will be readily perceived upon reading the same, these instructions were incorrect and misleading, and, in our judgment, the error committed in giving them was not cured by allowing the plaintiff to arbitrarily write off a portion of the recovery.
As eases of tort are constantly arising, both where death has been caused, and also where permanent injuries have been inflicted, occasioning a total destruction of, or a material diminution in, the earning capacity of the injured person; and generally, on the trial of such cases, these tables are introduced in evidence; and as there is much confusion with reference to the manner of using them, we have concluded to undertake the formulation of instructions concerning their use, which, in each class of cases, respectively, may be appropriately given in charge. It must not be understood that in so doing we are presuming to dictate to our brethren of the trial courts as to how they shall charge on this subject, or to prescribe forms which they must feel constrained to follow; but as we have devoted much study and thought to this particular matter, we venture to hope that the “charges” below suggested may be found helpful.
The plaintiff in the present action sought to recover damages for an alleged permanent diminution in his earn
On pages 844, 845 and 846 of the 70th Georgia Reports will be found, respectively, the “Northampton,” the “Car-lisle,” and the “Actuaries” mortality tables; and on page 847 is a table “showing the value of annuities on single lives according to the Carlisle table of mortality.” In order' to avoid complication, we shall frame our “charges” upon the assumption that only the tables on pages 845 and S47 are before the jury, and shall designate the last simply the “annuity table.” Of course, if the other tables mentioned, or tables which have not been mentioned at all, are properly in evidence, the instructions may be varied accordingly. '
With reference to the “6 per cent.” and “7 per cent.” columns in the annuity table, we have thought it best that juries should be restricted to the use of the latter only, because seven per cent, is the legal rate of interest in this State when none is fixed by contract in writing, and calculations of annuities based upon any other rate would be purely arbitrary. Indeed, the table in the book referred to- might have had, in addition to those it now contains, a five per cent, column and an eight per cent, column, or any other number of columns based on different rates of interest, in which event there would have been no safe criterion, save that just indicated, as to which of them a jury should select. With the table as it stands, limited to the two columns,
The instructions we have undertaken to frame for the guidance of the jury in that class of cases in which the plaintiff seeks to recover for the homicide of another, have, of course, been prepared with reference to the rule of law prevailing in this State which allows such plaintiff to recover “the full value of the life of the deceased, as shown by the evidence, without any deduction for necessary or other personal expenses of the deceased, had he lived.” Code, §2971; Acts of 1887, p. 43.
Assuming, them, that an action to recover the value of a life is on trial, and that the Carlisle mortality table and the annuity table are in evidence, it would, we think, be proper to give the following instructions, which (for a purpose hereinafter appearing) we will divide,'somewhat arbitrarily, into paragraphs, and designate as:
Charge 1.
(1) In case you should find that the defendant is liable, it will be your duty to determine what amount of damages should be allowed.
(2) Certain tables are in evidence before you. One of them is the “Carlisle mortality table,” and the other is a table showing the value of annuities. "We will call the first “the mortality table,” and the second “the annuity table.” They are not binding upon you, and you are not obliged to use them, or either of them. If you use neither, you need not consider the instructions now about to be given; but as these tables are in evidence, and you have the right to avail yourselves of the assistance to be derived from them, it becomes proper to explain them, and inform you in what manner, and for what purpose, each can be made serviceable. Care, however, must be taken to avoid confusion; and you should be very'particular not to use one of them where the other ought to be used. You are also cau
(3) You should ascertain from the evidence the annual earning capacity of the deceased; that is, seek honestly to reach a just conclusion from the facts before you as to what .amount should be regarded as fairly representing his yearly income from his own labor to the end of his life, if he had not been killed; and, in so doing, give diie weight to the various contingencies which will be pointed out before concluding these instructions. It is proper to remark, just here, that the age of the deceased at the time of the killing and his probable expectancy of life may be considered in -arriving at his average yearly earnings, if in your opinion, :in view of all the evidence, his earning capacity would have varied at different periods in his life between the time he was killed and the time he would have died in the course of nature.
(I) Another and more direct use which you can make •of the figures representing such probable expectancy of life will presently be stated. In fixing upon this expectancy, you may consult the mortality table, which will now be explained. This table is designed to show the expectancy of life which may be entertained by -average persons of given .-ages. The only material information you .can derive from it is, the time which an average person of equal age with ■the one under consideration in the present case may be expected to live. This table has two sets of columns, marked, respectively, “Age” and “Expectation Years.” If it should be desired to ascertain how long a person of average health and constitution, aged 33 years, would probably live, you would look for the figures “33” in the “Age” column; •and opposite these figures, in the “Expectation Years” col-
(5) Having from the evidence fixed, as accurately and as fairly as you possibly can, upon the number of dollars-representing the yearly earnings of the deceased; and having ascertained from the mortality table, in connection with all the other evidence, his expectancy (that is, the number of years, which he would probably have lived), you could, by multiplying one of these numbers by tire other, determine approximately what would have been the gross amount of the earnings of his whole lifetime.
(6) This gross amount, when ascertained, would, of course, have to be reduced to its present value — that is, to a sum which, paid down all at once, would be the just and legal cash equivalent of such gross amount. The present value would necessarily be less than the gross amount; and the longer the life, the greater would be the difference in these respective sums. If you pursue the course above indicated, and arrive at the gross amount in the manner which has just been explained to you, it would then be incumbent
(Y) Suppose a man 33 years old was killed, and, at the time of his death, was earning $40 per month, which would, make $480 per year. If it was certain that he would continue to earn this amount every year as long as he lived, his labor would represent a yearly annuity of $480; and one entitled to recover the value of his life would have the right to receive such an amount as would be the fair cash equivalent of an annuity of $480, payable in yearly installments, during the period the deceased would have lived but for the homicide.
(8) To arrive at such amount in the case supposed, the annuity table could be made available in the following manner: First, you would look in the column marked “Age” till you found the figures “33.” Opposite these figures you would find, in a column marked “Y per cent.” (it being on the right of the “Age” column), the figures “11.448.” The meaning is, that an annuity of one dollar, in favor of an average person 33 years old, and to continue through life, would, on the Y per cent, basis, be worth, cash down, eleven dollars and 44 8-10 cents.
(9) Therefore, multiplying $480 by the' figures “11.448,” would give the cash value of a like annuity of $480, viz: $5,495.04.
(10) This annuity table can be used for any age up to 103, and with reference to any sum of money representing, or standing in the place of an annuity. The illustration
(11) You will also observe that the illustration given is based upon the assumption that the deceased would have actually earned $480 every year during the entire period of his life> if he had not been killed.
(12) It rarely, if ever, happens that a man labors every day until his death, or receives all the while a fixed and regular income from his labor; nor does his capacity to earn money often remain undiminished to old age. In arriving at the amount to be allowed as damages in any particular case, these things should be carefully borne in mind. The illustration given is also based upon the further assumption that the supposed person was one whose expectancy of life was that of an average man. If, in any case, the expectancy of the person under consideration would, under the evidence, have probably been greater, or less, than that of the average man, the amount of the damages to be allowed should be increased, or diminished, accordingly. In applying these instructions to tire case which you are now trying, you will, of course, be governed by its facts and circumstances as proved. Feebleness of health, actual sickness, the loss of employment, voluntarily abstaining from work, dullness in business, reduction in wages, the increasing infirmities of age, with a corresponding diminution of earning capacity, and other causes, may contribute, in greater or less degree, to decreasing the gross earnings of a lifetime. In estimating damages, a proper allowance and deduction should be made in favor of the defendant for any diminution in income from labor which would have resulted from any of these sources. The defendant is not responsible for the consequences of the acts of others not its agents, nor for results which would in any event, and with
(13) In arriving at the cash value of the life of the deceased, and fixing the amount of tire damages, you should .take all these matters into consideration, and give them due weight.
(14) If the defendant is not liable at all, the instructions which have been given concerning these, tables should be disregarded entirely. If liable, and you see proper to use the tables, or either of them, an observance of these instructions will aid you in reaching a proper conclusion as to the amount of damages to be allowed.
\_Nole: If the evidence so warrants, an additional instruction, such as is embraced in the words below quoted, may be added to paragraph 12. But this should not be done unless in view of all the testimony the propriety and fairness of such an instruction is manifest.
* * * * * * * * “You should also take into consideration, and give the proper effect to, any evidence before you, if there be such, tending to show a reasonable prospect of increased earnings on the part of the deceased.”]
When the above mentioned tables are introduced in evidence upon the trial of an action for personal injuries involving an alleged diminution of the plaintiff’s earning capacity, and there is evidence to warrant a finding that there was such a diminution, and that it will be permanent (that is, lasting during the plaintiff’s life), the following instructions as to the methods of using the tables may be given. We will designate the same:
Charge- 2.
(1) If you find that the defendant is liable, it will be your duty to fix the measure of the plaintiff’s damages. Among other things, he claims that he has been permanently injured; that his capacity to labor and earn money has been decreased, and that this condition will continue to the end
(2) [Same as paragraph 2 of Charge 1.]
(3) You should ascertain from the evidence the annual loss which has been occasioned to the plaintiff by reason of his injuries. To do this, you will have to take into consideration his earning capacity before he was injured, and the per cent, (or ratio) in which that capacity has been diminished. Seek honestly to reach just conclusions from the facts before you as to what amount would have fairly represented the yearly earnings of the plaintiff to the end of his life, had he not been injured, and as to the proportion — whether one fourth, one half, or more or less than these fractions — in which such earnings will be reduced because of his injuries. In estimating what-would have been the plaintiff’s probable earnings through life, if his laboring capacity had remained unimpaired, you should give due weight to the various contingencies that will be pointed out to you before concluding these instructions. It is proper to remark, just here, that the plaintiff’s age at the time he was injured, and his then probable expectancy of life, may be considered in arriving at what would have been his average yearly earnings but for the injury, if in your opinion, in view of all t-he evidence, his earning capacity would have varied at different periods of his life, in case there had been no injury.
(5) Having from the evidence fixed, as accurately and as fairly as you possibly can, upon the number of dollars representing the yearly loss in earnings occasioned to the plaintiff by his injuries; .and having ascertained from the mortality table, in connection with all the’ other evidence before you, his expectancy (that is, the number of years which, at the time of his injury, he could reasonably have expected to live), you could, by multiplying one of these numbers by the other, determine approximately the gross amount of the loss.
(G) [Same as paragraph 6 of Charge 1.]
(7) Suppose a man 33 years old, and capable of earning $40 per month, or $480 per year, was so injured that he could earn only $20 per month, or $240 per year, and that tins decreased capacity to earn money would last during his entire life. If it was certain that, but for the injuries, he would have continued to earn the full amount of $480 every year as long as he lived, his loss on account of the injuries would represent a yearly annuity of $240; and, if entitled to recover for such loss, his damages, as to this matter, should be such an amount as would be the fair cash equivalent of an annuity of $240, payable in annual installments, until the end of his life.
(8) [Same as paragraph 8 of Charge 1.]
(9) Therefore, multiplying $240 by the figures “11.-448,” would give the cash value of a like annuity of $240, viz: $2,747.52.
(10) [Same as paragraph 10 of Charge 1.]
(11) For instance, you will have noticed that the case supposed in the illustration is one where the earning capacity was reduced one half. It might be that it was reduced two thirds, or only one third, or one fourth, or any other fraction. The true per cent, of the decreased capacity must in each case be ascertained from the. evidence, the question being: In what proportion does it show the
(12) [Same as paragraph 12 of Charge 1.]
(13) In arriving, therefore, at the amount which should be allowed the plaintiff on account of loss arising from diminished ability to labor, you should take all these matters into consideration, and give them due weight.
(14) [Same as paragraph 14 of Charge 1.]
[Note: In a proper case, the reading of paragraph 12 of Charge 1, as a part of Charge 2, may be followed by giving the additional instruction below quoted. In this connection, however, see note at end of Charge 1.
* * * * -x- * * * “You should also take into consideration, and give the proper effect to, any evidence before you, if there be such, tending to show that there was a reasonable prospect of increased earnings on the part of the plaintiff, in case he had not been injured.”]
2. The rule announced in the second head-note is well settled in this State. It was recognized in the recent case of Georgia Railroad Company v. Hicks, 95 Ga. 301.
Judgment reversed.