Opinion
38002.
DECIDED NOVEMBER 24, 1959.
Action for damages. Gwinnett Superior Court. Before Judge Clinkscales. July 29, 1959.
Smith, Field, Doremus Ringel, Sam F. Lowe, Jr., for plaintiff in error.
Hewlett, Hewlett Wall, Sam Hewlett, Jr., Alford Wall, contra.
A gratuity paid to an injured person in substantially the amount he would have earned during a period of time following his injury will not mitigate damages due to the injured party for loss of earning capacity during the time for which he was paid.
DECIDED NOVEMBER 24, 1959.
Donald L. Pless brought suit against Lawton Story, Jr., alleging injuries and damages to the plaintiff in the amount of $75,000 because of alleged negligence on the part of the defendant. The plaintiff alleges that he had parked a 1 1/2 ton truck, owned by his employer, the D. L. Pless Construction Company, in the west lane of the north-bound side of the north expressway; that the place at which the truck was parked was at the intersection of Clairmont Road and the expressway. The petition further alleges that the defendant drove the defendant's truck at a speed of about 50 to 55 miles per hour until he reached the point about 50 feet south of the truck parked by the plaintiff, suddenly applied the brakes of the defendant's truck and turned it to the right, causing it to slide, spin and travel in an easterly direction toward the shoulder on the other side of the expressway where the plaintiff was standing, striking him while he was standing off the expressway and on the shoulder.
The defendant filed an answer by way of general denial of the allegations of the petition and alleged that the plaintiff had parked the truck negligently on the highway; that the defendant was following an automobile immediately ahead of him about three or four car lengths behind that automobile, both traveling at about the same speed, that the automobile immediately ahead swerved sharply to the right, for the first time leaving clear the defendant's vision of the road ahead, when the defendant saw the Ford truck parked in the lane in which he was traveling about 25 to 35 feet away from the defendant's position at that time; that this required the defendant to swerve suddenly to the right and off the road and onto the shoulder of the road where the truck turned over, doing damage to the truck and causing physical injury to the plaintiff.
The case proceeded to trial by jury and resulted in a verdict in favor of the plaintiff and against the defendant for $5,000. The defendant filed a motion for new trial on the general grounds and one special ground. The court denied the motion, and it is to that judgment that the case is here for review.
The evidence as contained in this record is sufficient to sustain the verdict, and we will direct this decision to the special ground only.
Special ground 1 contends that the court erred in instructing the jury as follows: "With reference to the loss of wages, you would have to be guided by the amount that he was earning at the time, the length of time he was out of employment, as developed by the evidence, and would be controlled by those features. You would also, if you find for any future element, be required to reduce such future element to its present cash value, figured at the rate of seven percent per annum. You should also give credit, in estimating any amount for diminished earning capacity, if any, for the natural loss of ability to earn money, giving credit to the defendant for such as would be the natural result by reason of a man growing older, voluntarily abstaining from work, sickness, or other similar circumstances." The special ground goes on to quote a paragraph from the petition to the effect that the plaintiff was an able-bodied man of 23 years of age, earning and capable of earning $70 per week as a truck driver, and that since the date of his injuries the plaintiff has been totally disabled and unable to work at all and will continue so to be in the future, — the exact duration of time cannot be stated. The special ground then quotes extensively from the evidence in regard to the earnings of the plaintiff. It is contended that there was no evidence on which the jury could base a determination that the plaintiff suffered a diminished or decreased earning capacity. We have read all the evidence carefully and it is our opinion that the evidence not only justifies, but demands, the charge substantially as given by the court.
The defendant makes much of the fact that the plaintiff was still being paid $70 a week by his uncle until shortly before the trial of the case. Being paid by a relative in a case such as this certainly does not indicate that the money was earned. The evidence shows positively that the plaintiff was unable to work. The record also shows that the uncle who was paying the plaintiff was an uncle who had reared him and there is no indication that the uncle thought that the plaintiff was earning the money. Plainly the plaintiff was not earning the money since he could not drive a truck and, so far as the record shows, could not engage in any sort of gainful occupation, because of the injury sustained. It is clear to our minds that the uncle was paying the plaintiff for other reasons than earnings made by the plaintiff, and we decline to concur in the theory that the $70 per week paid by the uncle to the plaintiff from the time of the injury to the time of the trial was paid as wages earned. Moreover, it would be grossly unfair to allow the defendant, on appeal, to take advantage of any such contentions. This record does not reflect any reason why the jury should not have been able to arrive at a determination as to the earning capacity of the plaintiff. It does, perhaps, show that the jury brought the potential earning capacity into consideration in arriving at a verdict of $5,000 when the petition alleged injury and damages amounting to $75,000. In Nashville, C. St. L. Ry. Co. v. Miller, 120 Ga. 453 (1) ( 47 S.E. 959, 67 L.R.A. 87, 1 Ann. Cas. 210), the Supreme Court said: "The fact that a person other than the wrongdoer, as a mere gratuity, pays to one injured as the result of his negligence a sum of money equal to the amount he would have earned had he been able to work during the period of disability, will not mitigate the damages due by the wrongdoer to the injured party for lost time." The excerpt from the charge of the court as set out in special ground 1 shows no reversible error. The whole charge was fair and accurately adjusted to the pleadings and the evidence.
The court did not err in denying the motion for new trial.
Judgment affirmed. Townsend and Carlisle, JJ., concur.