DECIDED OCTOBER 27, 1964.
Action for damages. Bibb Superior Court. Before Judge Aultman.
Martin, Snow, Grant Napier, T. Baldwin Martin, for plaintiffs in error.
Westmoreland, Hall Pentecost, John L. Westmoreland, Jr., Harris, Russell Watkins, contra.
1. (a) Where photographs are otherwise relevant, it is not a good ground of objection to their admissibility that the witness whose testimony prepared the foundation for their admission was not present when the pictures were taken.
(b) Photographs tending to show a relevant and material fact are not subject to an objection that their admission in evidence would prejudice and inflame the minds of the jurors.
(c) It does not constitute reversible error for a trial court to admit in evidence on the trial of a case more than one photograph tending to prove a fact.
2. The trial court did not err in giving the instructions assigned as error in the special ground considered in this division of the opinion.
DECIDED OCTOBER 27, 1964.
The plaintiff, Busick, sued the defendants for certain damages for personal injuries received by him by virtue of an automobile collision and sued for the loss of consortium of his wife and for loss of her services. The case was tried before a jury and a judgment based on the verdict was entered by the trial judge.
The defendants except to the judgments of the trial court in denying their motion for judgment notwithstanding the verdict and overruling their motion for new trial as amended.
1. The first special ground of the defendant's motion for new trial assigns as error the trial court's admitting in evidence four color photographs showing the plaintiff's wife's face with lacerations exposed and blood on it. The defendant based his objections to the admission of this real evidence on the grounds: (a) the witness attempting to offer the foundation for the admission of the photographs did not make the photographs and was not present when they were made; (b) the purpose for introducing the photographs was to prejudice the jury and inflame their minds; and (c) each of the photographs showed practically the same thing and any one of them would have sufficed to answer plaintiff's stated purpose for offering them.
(a) From early times the Georgia Supreme Court has followed a liberal policy toward the allowance of photographic evidence. See Franklin v. State, 69 Ga. 36, 42 (1) (47 AR 748); Green, The Georgia Law of Evidence, 202, § 86; and annotations in 9 ALR2d 899 and 73 ALR2d 760.
The plaintiff testified that according to his recollection the several photographs were correct and true representations of the "looks" of his wife in the hospital in Macon where she was taken right after the collision. Since the plaintiff was suing for the loss of consortium of his wife and because of the injuries she received in the accident, evidence tending to show the extent of her injuries was certainly relevant. Under these circumstances it is not a good ground of objection to the admissibility of the photographs that the witness whose testimony prepared the foundation for their admission was not present when the pictures were taken. Toler v. State, 213 Ga. 12 (3) ( 96 S.E.2d 593); Hill v. State, 201 Ga. 300, 307 (6) ( 39 S.E.2d 675); Evans v. State, 70 Ga. App. 500 (1) ( 28 S.E.2d 671); Whaley v. Sim Grady Machinery Co., Inc., 107 Ga. App. 96, 98 (5) ( 129 S.E.2d 362).
(b) Photographs tending to show a relevant and material fact are not subject to an objection that their admission in evidence would prejudice and inflame the minds of the jurors. "Photographs when properly identified by preliminary proof, as showing an accurate representation of an object which is material to the issue, are admissible. [Citations omitted.] The location of the wounds was material to the issue. [Citations omitted]. . . A relevant and material fact is not subject to an objection that it would inflame the minds of the jurors." Bryan v. State, 206 Ga. 73, 74 ( 55 S.E.2d 574), Hill v. State, 211 Ga. 683, 684 (3) ( 88 S.E.2d 145).
(c) Whether any one of the four photographs offered in evidence would have been sufficient to accomplish the plaintiff's stated purpose, is immaterial, and the admission of all of them does not constitute a ground requiring reversal. "That such evidence of payment was cumulative does not render it inadmissible; as more than one witness may testify to a fact, so there may be more than one document tending to prove a fact." Warren v. Gray, 90 Ga. App. 398, 402 ( 83 S.E.2d 86). The holding in the Warren case is sufficient authority to support the holding here that it does not constitute reversible error for a trial court to admit in evidence on the trial of a case more than one photograph tending to prove a fact.
There is no merit in special ground 1 of the defendant's motion for new trial for any of the reasons assigned.
2. The remaining special ground of the motion for new trial complains of a portion of the trial judge's instructions to the jury in which he charged as follows: "The plaintiff claims damages for diminished capacity to labor and work. . . If you find there has been an impairment in the capacity of the plaintiff to work and labor, in arriving at the amount of such damages for pain and suffering, consider the extent of the impairment, whether it has ceased or whether it is temporary or whether it is permanent or just how long it will continue into the future."
The defendants contend that the charge was erroneous for the reason that the plaintiff had not adduced evidence showing any permanent reduction in earning capacity and in fact had conceded that reduction in earning capacity was not an issue to be submitted to the jury.
The judge's charge was directed merely to the question of impairment of ability to work and labor as an element of pain and suffering which was fully authorized by the evidence. The instructions had nothing to do with lost earnings. There was no error in the charge. See Porter v. Bland, 105 Ga. App. 703, 707 (5) ( 125 S.E.2d 713); Hunt v. Williams, 104 Ga. App. 442, 448 (5) ( 122 S.E.2d 149); McDuffie v. Tanner, 108 Ga. App. 213, 217 (6) ( 132 S.E.2d 675).
"Impairment of ability to work and labor is an element of pain and suffering for which damages may be recovered by one who is physically injured by the negligence of another. It is the fact of impairment or loss of ability to work, with or without compensation, that is to be considered by the jury in determining the amount to be allowed for pain and suffering, and no evidence as to earnings is necessary in such calculation, the only standard of measurement being the enlightened conscience of impartial jurors. . . It is the loss of capacity to work and labor, and not the loss of earnings, for which the plaintiff is entitled to compensation, as a part of pain and suffering, when physically injured by the negligence of another. . ." Railway Exp. Agency, Inc. v. Standridge, 68 Ga. App. 836, 837-838 ( 24 S.E.2d 504). See also Myers v. Pearce, 102 Ga. App. 235, 236 (8) ( 115 S.E.2d 842); and Wright v. Lail, 219 Ga. 607, 609 ( 135 S.E.2d 418).
This special ground is without merit.
3. The second special ground of the motion for new trial has been expressly abandoned.
4. The evidence having authorized a verdict for the plaintiff the trial judge did not err in overruling the general grounds of the motion for new trial nor in denying the defendant's motion for judgment notwithstanding the verdict.
Judgment affirmed. Jordan and Eberhardt, JJ., concur.