DECIDED JULY 11, 1957.
Tort; automobile and tractor collision. Before Judge Hicks. Floyd Superior Court. May 3, 1957.
Matthews, Maddox, Walton Smith, for plaintiffs in error.
Cecil Franklin, Clower Anderson, contra.
The trial court did not err in any of the rulings.
DECIDED JULY 11, 1957.
James Floyd Kelly filed a petition against William C. Puckett and Rome Provision Company. The defendants filed an answer to the petition, which is hereinafter set forth. The Rome Provision Company filed a general demurrer to the petition. A verdict of $8,000 was returned in favor of the plaintiff. The defendants filed a motion for new trial on the statutory grounds and thereafter added eight special grounds. The general grounds and special grounds 2 and 8 are abandoned. The court overruled the general demurrer and denied the motion for new trial and it is on these judgments that the case is here for review.
The evidence shows substantially as follows: James Floyd Kelly, the plaintiff here, testified substantially that on November 22, 1955, at approximately 5 or 5:15 p. m. he had just finished up his work on James Thomas' land using a borrowed tractor; that he hooked up a four wheel wagon type trailer with a wooden chassis bed to the tractor and started toward the highway; that the tractor carried lights and James Waddell pulled on the light switch; that the wagon trailer had no lights; that he came into the highway and was traveling north going approximately 10 or 15 miles per hour with about three feet of the tractor riding the pavement when a car struck the wagon trailer from the rear; that it happened at 5:15 or 5:30 p. m.; that he didn't know what happened; that he woke up in the hospital around 2 o'clock the next morning; that he received injuries growing out of the collision, which he described in detail. As to the testimony of the plaintiff regarding the time of the accident, the plaintiff was asked if he did not testify on deposition that it was around 5:30 p. m. when he left James Thomas' place and he testified that "I figure it might have been 5:30 when I actually had the collision," and "It could have been as late as 5:30 when I did leave James Thomas' place."
The plaintiff further testified that he had previously worked some 19 years at a mill but had to leave because his nerves were bad; that he thought he left in August 1954; that he got better when he went to farming; that his general condition at the time of the accident was nervousness and that he had suffered "whole lot worser pains after the accident" and that since the accident he hasn't been able to do anything but weigh up cotton (not doing any lifting) and haul it to the gin earning $3 per day for about six weeks. The plaintiff exhibited pictures showing his condition as of October 1956 (nearly one year after the accident) and testified substantially that this condition did not exist before the accident but commenced a day or two after he came home from the hospital, and he has suffered "ever since the night I got hurt." On deposition taken in Rockmart on September 27, 1956, the plaintiff testified substantially that his only complaints were bruises in his chest, left leg and left groin.
Ed Yarbrough, a witness for the plaintiff, testified that he came upon the scene of the accident a short time after the collision and he figured it was around 6 o'clock; that it could have been some after six; that he had his own parking lights on because it is his safety habit at that time of the day.
James Waddell, a witness for the plaintiff, testified substantially: that he turned the lights on the tractor himself because the plaintiff said he might need some lights before he got to his destination (some three miles away); that the approximate height of the tail light on the tractor was 3 1/2 feet from the ground; that the plaintiff came to his house a little after five o'clock and he (witness) learned of the collision approximately a half hour later.
Dr. T. E. McBryde, by deposition, testified substantially: that he had treated the plaintiff in July 1953 for a stomach condition which lasted six to eight weeks and in January 1955 for chest trouble accompanied by pain and coughing; that he referred him to another doctor for X-rays and that the general condition of the plaintiff at the time was that he was run down and weak; that his constitution was not normal; that he was not a strong able-bodied man at that time.
Dr. Harold Golden, by deposition, testified: that he saw the plaintiff last in May of 1955 and had made X-rays in March of that same year; that the patient complained of being extremely nervous with upset stomach and low back pains; that he found weakness in joints of the vertebral column; that he was not having pain sufficient to completely disable him. On recall Dr. Golden testified that the condition he found with reference to complaint of pain in the back was such that it could definitely be aggravated by trauma.
Dr. Charles M. Smith, who examined the plaintiff immediately following the accident, testified substantially: that on November 22, 1955 he examined the plaintiff and found contusions and abrasions of his left chest, flank and thigh; that the patient remained in the hospital three to five days; that a technician made X-rays and found no really severe bone damage but moderate damage to cartilage or true ribs (he could not remember which and it did not show on the records); that the plaintiff's main complaint was low left chest pain; that he suffered moderate to severe bruises of the left flank but none directly to privates; that there was no indication of injury to bony parts of spine to any degree; that the plaintiff had no complaint of back pains or damage to privates; that he found the injuries of a temporary and passing nature; that he made two or three house calls, treating the plaintiff for a nervous condition and severe chest cold which he had developed following his hospitalization; that so far as he could see the patient had a slow but full recovery from such injuries; that he did not discharge the plaintiff but the plaintiff did not come back; that he last saw him on December 9, 1955.
James H. Thomas, a witness for the plaintiff, testified substantially: that he saw James Waddell turn the tractor lights on; that there was a rear light fastened right under the seat of the tractor and it was in good shape but he did not see it lit; that the rear tractor wheels were 60 inches high while the top of the wagon trailer wasn't over 40 inches from the ground; that when he arrived on the scene shortly after the collision it was not dark but the sun was down.
John L. Brazil, a witness for the plaintiff, testified substantially; that when he heard the noise of the collision it was just getting dusky dark; that there were lights on inside at the garage but none outside.
Macky Moates, plaintiff's witness, testified substantially: that he came upon the scene almost immediately after the accident; that it was not dark but the sun had already gone down; that he saw the plaintiff all "balled up in a knot," he was not unconscious but he could not tell him his name.
Austin White, a witness for the plaintiff, testified substantially: that he heard the noise of the collision, stepped over to the highway and saw the wreck about 1/4 mile away; that it was not dark but was after sundown; in driving his own car to the scene he did not turn on the lights; that 10 or probably 15 minutes after the accident he was with Horace Williams while he called the State Patrol.
Patrolman H. G. Minshew, testifying on behalf of the defendant, testified substantially: that the call reporting the accident was logged in on his blotter at 6:12 p. m.; that he examined the wagon trailer and found that it had no lights and was not wired for lights; that the tractor was wrecked and he could not determine if the tail light would operate before the wreck; that the point of impact was approximately 400 feet from the top of the hill over which the vehicles passed just before the collision.
Mrs. Mack Moates, a witness for the defendant, testified substantially: that she passed the vehicles being driven by the plaintiff shortly before the collision and that the tractor did not have any lights on it; that her own parking lights were on.
Mrs. Donald Crowder, testifying on behalf of the defendant, testified substantially: that she believed she and her husband were driving directly behind the defendant; that it was around six o'clock when they passed through Aragon and they turned on their lights at that time; that they arrived at the scene of the accident right afterwards; that the sun had set but it was still light.
William Puckett, one of the defendants, testified substantially that he had been working on a sales route on November 22, 1955, making his last sale in Dallas, Georgia, and he was on his way to Rome, Georgia; that he came through Rockmart at approximately 6 o'clock, at which time he put on his lights; that 20 or 30 minutes later as he passed over a hill he met a car coming from the opposite direction with his lights on; that he was traveling 45 to 50 miles per hour; that he didn't see the trailer until he was 20 feet away; that he saw no lights on it; that he put on brakes but had already hit the tractor when he stopped; that he saw Mr. Kelly sitting on the tractor and he was easing along the road and cut off on the left shoulder into a field; that he asked Mr. Kelly if he was hurt and he said, "No"; that Mr. Kelly got down off the tractor and appeared to be limping a little and he asked him again if he was hurt and he said he didn't think so; that he examined the wagon trailer and found no wires for lights; that the bed of the trailer was at least as high as his car, approximately 5 feet. The defendant further testified substantially that the plaintiff did not alight from the tractor at any time before it went off the embankment; that he was sitting on the seat as it went from the point of impact to where it went off the road.
Lucius P. Spicer of the U.S. Weather Bureau, a witness for the defendant, testified substantially that sunset on November 22, 1955, was at 5:33 p. m. and it was a matter of seconds from the point of calculation to the point where the accident occurred.
We have set out the evidence somewhat in detail, even though the general grounds are abandoned, for the reason that the evidence is closely interrelated with the special grounds.
The petition reads: "The petition of James Floyd Kelly, hereinafter referred to as plaintiff, brings this suit against and names as defendants herein, William C. Puckett and Rome Provision Company, Inc., hereinafter referred to as defendants, who have damaged plaintiff in the amount of $30,000 on grounds hereinafter alleged:
"(1) That defendant, William C. Puckett, is a resident of the county and State aforesaid and is subject to the jurisdiction of this court. That Rome Provision Company is a corporation with its principal office in Floyd County, Georgia, within the jurisdiction of this court and with officers and agents upon whom services can be perfected.
"(2) That on November 22, 1955, and prior thereto, defendant, William C. Puckett was an employee and agent for Rome Provision Company, and on said date was engaged as salesman in selling meat and meat products for Rome Provision Company. Said defendant was acting within the scope of his employment as a salesman of meat and meat products and in furtherance of his employer's business.
"(3) It is shown that on November 22, 1955, at about 5:30 o'clock p. m., petitioner was operating a farm tractor along the easterly side of State Highway No. 101 and traveling in a northerly direction. It is further alleged that on the same date and time, defendant, William C. Puckett, while in and about his duties as an agent and servant of Rome Provision Company was driving an automobile in a northerly direction along the easterly side of State Highway No. 101.
"(4) It is shown that when plaintiff reached a point about three miles northeast from Aragon in Polk County, said tractor was being operated along the easterly side of said highway and the left wheels of said tractor were about two and one-half feet over on the pavement while the two right wheels were approximately two and one-half feet to the east of the edge of the pavement and were rolling along the dirt shoulder of the road. Plaintiff shows that there was hitched to said tractor a David Bradley rubber-tired wagon. The left wheels of said wagon were about two and one-half feet over on the pavement and the right wheels were about two and one-half feet on the dirt shoulder of said road.
"(5) It is shown that plaintiff was operating the aforesaid tractor which was a 1952 model Case, the property of Leonard Thomas.
"(6) It is alleged that at said time and place, defendant, William C. Puckett, operating a Mercury automobile ran into and struck the rear end of said wagon with great force and violence. The impact was of such force as to demolish the wagon. The tongue of the wagon was firmly hitched to the tractor and the resulting blow of automobile knocked plaintiff unconscious. The impact caused by said Mercury automobile caused the tractor to swing westerly across the highway for about 150 feet where it came to a stop in a field.
"(7) As a result of said collision plaintiff received severe and painful injuries. All the muscle, ligaments and tissue in and about plaintiff's chest and shoulders were bruised and contused. Plaintiff's left hip was bruised and contused. All of plaintiff's ribs were bent, sprung, bruised and contused. Plaintiff sustained a laceration across the right forearm. The muscles, ligaments and tissues in and about plaintiff's neck and spine were wrenched, bruised, sprained and contused. Plaintiff's kidneys were bruised and contused. That blood vessels in plaintiff's kidneys were broken."
The following was added to this paragraph by amendment: "His spine was injured and a herniated or slipped disc has resulted. He sustained a severe trauma to his left testicle and scrotum which has caused a condition known as hydrocele to develop, and the scrotum had become so filled with fluid that it was necessary to tap the same and remove such fluid. This hydrocele condition, causing enlargement of the scrotum, has rendered plaintiff impotent, and plaintiff has been advised that it will require an operation in order to correct this condition, costing at least $300."
"(8) It is shown that plaintiff was carried to Rockmart-Aragon Hospital immediately after the collision and was in an unconscious condition. He remained in the hospital until November 23rd at which time he was removed to his home and was confined to his bed for approximately four weeks.
"(9) That petitioner, at time of sustaining the injuries as aforesaid was earning and capable of earning $1,500 a year as a skilled tractor operator. Plaintiff has not been able to do any work since sustaining said injuries and because of said injuries, which are permanent in character, plaintiff has lost all earning capacity.
"(10) At the time of said accident plaintiff was 45 years of age and had a life expectancy of 24.46 years.
"(11) That plaintiff incurred medical expenses in the amount of $200 which was reasonable and necessary in the premises.
"(12) Plaintiff shows that where said accident occurred the highway is approximately 50 feet in width while the pavement is 20 feet in width.
"(13) That defendant, William C. Puckett was negligent in the following particulars, to wit: (a) In failing to keep a lookout ahead and observe plaintiff so as to avoid running into and against said wagon and tractor. (b) In failing to keep a proper lookout ahead so as to steer his automobile to the left of said wagon and tractor and, thereby pass without striking and running into said wagon and tractor. (c) In not having his automobile under control so as to slow down or stop without running into and colliding with said wagon and tractor. (d) In not giving a warning or signal so that plaintiff could try and avoid said automobile. (e) In traveling at such speed as not to be able to slow down so as to avoid said collision. (f) In failure to turn his automobile to the left and pass plaintiff's wagon-tractor.
"(14) That all the above and foregoing acts of negligence concurred and jointly co-operated to cause and did cause, directly and approximately, the injuries to petitioner.
"(15) Plaintiff shows that where said accident occurred the roadway is straight and there were no obstructions of any kind with clear visibility and that if defendant had been on the lookout, plaintiff's tractor and wagon could have been seen at least 300 yards from the rear, the direction from which defendant was approaching.
"Wherefore, the premises considered, plaintiff prays: (a) That process issue requiring each of the defendants, who are being sued jointly and individually, to be and appear in terms of the law and answer the foregoing allegations. (b) For judgment in the amount of $30,000 on grounds heretofore alleged. [By amendment this was changed to $35,000.]"
By a second amendment the following was added: "(16) Plaintiff, prior to November 22, 1955, had a condition of his spine diagnosed by Dr. Harold Golden as spondylolisthesis and from which condition he had improved prior to November 22, 1955, to the extent he could work in the fields and carry on his normal occupation from which he earned a livelihood. As a result of the injuries plaintiff sustained in said collision, the aforesaid condition has been aggravated, and the severity and frequency of pain has increased to the extent that he is unable to work and earn a living and carry on his occupation as a farmer.
"(17) Plaintiff has suffered, now suffers and will continue to suffer pain and suffering as a result of the injuries sustained in said collision, and for such pain and suffering, past, present and future, he sues for damages."
The joint answer of the defendants Puckett and Rome Provision Company, Inc., reads: "(1) the allegations of paragraph 1 of the petition are admitted.
"(2) The allegations of paragraph 2 of the petition are admitted.
"(3) Answering the allegations of paragraph 3 of the petition, defendants deny that the time of the incidents alleged was about 5:30 o'clock p. m. Except as answered above, the other allegations of said paragraph are admitted.
"(4) Answering the allegations of paragraph 4 of the petition, defendants admit there was hitched to said tractor a rubber-tired wagon. Except as answered above, the other allegations of said paragraph are denied.
"(5) For want of sufficient information, defendants can neither admit nor deny the allegations of paragraph 5 of the petition.
"(6) Answering the allegations of paragraph 6 of the petition, defendants admit the Mercury automobile operated by William C. Puckett struck the rear end of said wagon. Except as answered above, the allegations of said paragraph are denied.
"(7) For want of sufficient information, defendants can neither admit nor deny the allegations of paragraph 7 of the petition.
"(8) For want of sufficient information, defendants can neither admit nor deny the allegations of paragraph 8 of the petition.
"(9) The allegations of paragraph 9 of the petition are denied.
"(10) For want of sufficient information, defendants can neither admit nor deny the allegations of paragraph 10 of the petition.
"(11) For want of sufficient information, defendants can neither admit nor deny the allegations of paragraph 11 of the petition.
"(12) The allegations of paragraph 12 of the petition are denied.
"(13) The allegations of paragraph 13 and each subparagraph thereof are denied.
"(14) The allegations of paragraph 14 of the petition are denied.
"(15) The allegations of paragraph 15 of the petition are denied.
"(16) Further answering the allegations of said petition, defendants show that they and neither of them are liable to plaintiff because: (a) Neither of said defendants were negligent; (b) Plaintiff's injuries and damages, if any, were solely and proximately caused by his failure to exercise ordinary care for his own safety; and (c) The negligence of plaintiff, at said time and place, was equal to or greater than any alleged negligence on the part of defendants or either of them."
1. The court did not err in overruling the general demurrer of the Rome Provision Company.
2. Special ground 1 assigns error because it is alleged that the court erred in charging the jury as follows: "Now the defendant comes into court and each of them, and files their plea and answer and denies that they are liable to the plaintiff in any sum whatsoever. The defendants contend that the defendant Puckett was not negligent as alleged in the plaintiff's petition. They contend that he was at the time of the alleged incident in the exercise of ordinary care, and that he nor either of the defendants are responsible to the plaintiff for any injuries he claims to have sustained and that they are not liable to him in any amount.
"The allegations set forth in the petition of plaintiff together with the plea and answer of the defendant as amended constitute the written contentions of the parties. These are the issues stated briefly for you to determine. You will have out before you the pleadings that I have referred to here, and I charge you now that the pleadings are not evidence and have no probative value. That is, they prove nothing except where you find an allegation in one which is admitted in the other, you will take such admitted allegations as being true without requiring proof as to such admitted allegations. You are authorized and instructed to read these papers as often as you like for a more specific elaboration of the contentions of the parties and of the case which you are to decide.
"Now, I have thus submitted to you the contentions of the plaintiff on the one hand and the contentions of the defendant on the other briefly upon the issues as to whether or not the plaintiff or the defendant is entitled to have and receive a verdict at your hands.
"You will not take the statement on the part of the court of the contentions of the parties as having any evidentiary force or value whatsoever. I have simply recited to you the contentions of the plaintiff and the contentions of the defendant as applicable to the evidence and the law in the case."
Movants aver that such charge was erroneous and injurious to them jointly and severally because it failed to set forth the contentions of the movants.
Counsel for the defendants contend that the charge of the court erroneously excluded from the jury the defenses of contributory and comparative negligence. Counsel states that where a trial court in a charge makes a reference to the pleadings which the jury will have out with them, this is usually a sufficient statement of the contentions, but contends that the trial court took this case out of that category by adding the following words: "I have simply recited to you the contentions of the plaintiff and the contentions of the defendant as applicable to the evidence and law in the case." Counsel cites in support of this contention Hightower v. Ansley, 126 Ga. 8 (6) ( 54 S.E. 939, 7 Ann. Cas. 927) and Potts v. Reconstruction Finance Corp., 76 Ga. App. 796 ( 47 S.E.2d 178). We have read the full charge of the court in those cases and compared the charges there with the charge in the instant case and find that the charge in the instant case covers the evidence and the pleadings thoroughly, and the two cases cited by counsel for the defendants are not binding. In Haslerig v. Watson, 205 Ga. 668 (5) ( 54 S.E.2d 413) the Supreme Court said: "An assignment of error based upon a particular excerpt from the charge of the court, complaining because therein the court omitted certain contentions of the complaining party, shows no ground for reversal, where the charge as a whole fairly states the contentions of the parties and further instructs the jury that the pleadings will be out with them, and that the jury can refer thereto in order to ascertain the contentions of the parties." This special ground is not meritorious.
3. Special ground 3 assigns error because it is alleged that the court erred in charging the jury as follows: "I further charge you gentlemen that under the law of this State no person shall drive a vehicle on a street or highway at a speed greater than is reasonable or prudent under the conditions and having a regard to the actual or potential hazards then existing. In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle, or other conveyance on the highway in compliance with the legal requirements and the duty of all persons to use due care.
"I charge you further that the driver of every vehicle shall, when a special hazard exists with respect to pedestrians or other traffic, or by reason of weather or highway conditions, drive at an appropriate or reduced speed so as to avoid colliding with other vehicles or pedestrians using the highway." It is contended that this charge imposed on the defendants a greater duty than the law requires. Counsel argues that Code (Ann.) § 68-1626 when presented to the jury without further explanation or qualification is not sufficient to enlighten the jury so that they may determine the matter presented to them; that the qualifications imposed by isolated statements in Code sections are understood by the bench and bar but the jury is not supposed to know any law except that which is given to them in charge by the trial court. In Moody v. Threlkeld, 13 Ga. 55 (7) the Supreme Court said: "Courts, in construing statutes . . . must have some respect to the substance, and not adhere too closely to the letter." Counsel also cites Lucas v. Smith, 201 Ga. 834 ( 41 S.E.2d 527) and A. C. L. R. Co. v. Canty, 12 Ga. App. 411 ( 77 S.E. 659) in support of this contention. It is our opinion that these cases are not authority for reversal for the case at bar but rather that this case is determined by the ruling in Alfriend v. Fox, 124 Ga. 563 (1) ( 52 S.E. 925) wherein the following is held: "When a charge correctly sets forth a rule of law, it is not rendered erroneous merely for the reason that the rule is not stated in the exact language of the Code." See also Alabama Great Southern R. Co. v. McBryar, 65 Ga. App. 153 ( 15 S.E.2d 563), Dyer v. State, 71 Ga. App. 41 ( 29 S.E.2d 922), and City Council of Augusta v. Tharpe, 113 Ga. 152 (2) ( 38 S.E. 389). This special ground shows no cause for reversal.
4. Special ground 4 assigns error because it is alleged the court erred in charging the jury as follows: "I charge you that if you determine from a consideration of the evidence and under the rules of law as given you in charge by the court that the defendant has violated one or more of the State's statutes about which I have just charged you, the defendant is guilty of negligence per se; that is to say, negligence in itself, negligence of itself, negligence as a matter of law.
"Whether or not the plaintiff has shown that the defendant Puckett as agent of the defendant, Rome Provision Company, has violated one or more of the statutes referred to by the court in this charge is a question of fact for the jury to determine under the rules of law given you.
"I charge you that if you should believe from the evidence that the defendant Puckett was guilty of a violation of any one or more of the State's statutes about which I have charged you, that such violation was the approximate cause of the plaintiff's injury, if he was injured as alleged, the plaintiff would then be entitled to a verdict at your hands, provided you believe that plaintiff was in the exercise of ordinary care for his own safety.
"The rules of law given you in charge concerning the laws applicable to negligence per se would not apply unless the jury should determine from the evidence that the defendant had violated the terms of one or more of the State's statutes as referred to." Counsel contends that the language of this excerpt was calculated to mislead the jury into thinking erroneously that the laws applicable to negligence per se would not apply to the plaintiff.
Special ground. 5 assigns error because it is alleged that the court erred in failing to charge that portion of the law on negligence per se to the effect that the plaintiff would be guilty of negligence per se if he violated the law requiring the use of lights upon the tractor he was operating. When we consider the entire charge of the court on this principle of law, it will be seen that the court did not err in this respect and these special grounds are not meritorious.
5. Special ground 6 assigns error because it is alleged that the court erred in charging the jury as follows: ". . . The plaintiff is entitled to recover if he proves to your satisfaction under the rules of law given you in this charge that the defendant was negligent as alleged in his petition as amended, and was injured and damaged as an approximate result thereof." It is contended that the effect of this charge was to instruct the jury that they need not consider any negligence of the plaintiff in getting into the dangerous situation, the negligence of the defendants being the only thing to consider and that such charge deprived the defendants of their defenses of contributory negligence and comparative negligence. On this point counsel cites the following cases: Benton Rapid Express v. Sammons, 63 Ga. App. 23 ( 10 S.E.2d 290), W. A. R. Co. v. Jackson, 113 Ga. 355 (2) ( 38 S.E. 820), Morrison v. Dickey, 119 Ga. 698 (2) ( 46 S.E. 863), and C. S. National Bank v. Kontz, 185 Ga. 131 (2) ( 194 S.E. 536). It has been held that even though a trial judge gives an inaccurate charge such is not reversible error if the complete charge did not mislead the jury. See A. C. L. R. Co. v. Taylor, 125 Ga. 454 ( 54 S.E. 622). The whole charge of the court must be taken into consideration rather than excerpts lifted from the context. See Morrison v. Dickey, supra. The charge of the court as a whole on this principle of law was full and complete and was not conflicting in any way and this special ground is not meritorious.
6. Special ground 7 assigns error because it is alleged that the court erred in charging the jury as follows: "The plaintiff also claims damages for what he alleges to be a permanent decrease in his capacity to labor and earn money. You will look to the evidence and determine how much, if any, his capacity to labor and earn money has been reduced on account of the injury. You will determine if the evidence discloses the fact that he would probably . . . what he probably would have been able to earn but for the injury, and what he will probably be able to earn in the future, and if he will be able to earn less in the future than he would have been able to earn without the injury, then the difference between the two sums would represent the loss, if any, to his earning capacity by reason of the injury. You will find that that would be the fair average yearly of the loss, if any, and multiply that amount by the number of years, if any, that the evidence disclosed this decrease in earning capacity will continue.
"If you find from the evidence that his decreased earning capacity is permanent, then you would multiply what the evidence shows to be the plaintiff's average yearly loss on this account, if any, by the number of years that you find from the evidence he would probably have lived but for the injury. In either case, this would give the gross amount of loss due to decreased earning capacity. In determining this amount you would take into consideration the fact that men's capacity to labor and earn money rarely ever remains undiminished to old age. You will also take into consideration the fact that men frequently voluntarily abstain from labor, and that loss of employment, dullness in business, sickness, voluntarily abstaining from employment, increased infirmities of age and other things independent of the alleged injury may contribute to diminish the gross amount of the alleged loss of earning capacity. You would then reduce this gross amount to its present cash value by any correct method known to yourselves, using the basis that money is worth 7 percent per annum interest, because if the plaintiff had earned the money he would have received it from year to year as he earned it, whereas if he recovers it in this case it would be paid to him in cash." Counsel argues that this is an erroneous charge because the court confused the formula of life expectancy and work expectancy. On this point in relation to the measure of damages counsel cites A. C. L. R. Co. v. Thomas, 83 Ga. App. 477, 491 ( 64 S.E.2d 301), Central R. Bkg. Co. v. Dottenheim, 92 Ga. 425 (3) ( 17 S.E. 662), and W. A. R. Co. v. Roberts, 144 Ga. 250 (8) ( 86 S.E. 933). We do not think that these cases are binding authority for reversal. See Central of Ga. Ry. Co. v. Dumas, 44 Ga. App. 152, 155 (16) ( 160 S.E. 814), Southern Grocery Stores, Inc. v. Cain, 50 Ga. App. 629, 630 (5) ( 179 S.E. 128), and Central of Ga. Ry. Co. v. Gibson, 90 Ga. App. 512 (1) ( 83 S.E.2d 271). This special ground is not meritorious.
The court did not err in any of the rulings.
Judgment affirmed. Townsend and Carlisle, JJ., concur.