32. ATLANTA STREET RAILROAD COMPANY v. JACOBS COURT OF APPEALS OF GEORGIA. 88 Ga. 647, 15 S. E. 825 1891. MRS. JACOBS sued for damages from personal injuries, alleging that she had a separate estate. The other material allegations of her declaration are quoted in the opinion. Before the trial defendant moved to dismiss the case because plaintiff's husband was not joined in the suit, it appearing from the declaration that she was a married woman. This motion was overruled, and this ruling is one of the errors assigned. The jury found for plaintiff $3,000. Defendant's motion for new trial was overruled, and it excepted. The evidence for plaintiff was to this effect: she was quite stout, weighing 165 or 170 pounds. She had twelve children, ten of them at home. Her oldest child was thirty-two, and her oldest child at home was twenty-eight. Otherwise her own age did not appear. Before she was hurt she had been accustomed to doing most of the sewing for the family, using a sewing-machine, and did all of the cooking. Since she was hurt she has had to employ a servant, not being able to do the cooking, and she cannot use a sewing-machine. Her husband is living, and there are three children living with them, over twenty years of age. She boarded a car of defendant, paid her fare, and when she got to the place at which she wished to stop, rang the bell. The driver stopped long enough to let her get to the rear platform and get down upon the step, but as she was about to step to the ground, and before he had stopped long enough for her to get off, he started the car and she fell. Both her knees were hurt; her right knee has never got well, and probably never will. She suffered much, and still suffers from the injury. She can get about in the house by holding to the walls and chairs, but cannot get around in the yard without a crutch, etc. The evidence for defendant was, that when plaintiff rang the bell the driver stopped the car, and plaintiff went out the rear door and fell; and that the car was not started nor moved at all until the driver went to her and helped her up. In addition to the grounds that the verdict was contrary to law, evidence, etc., the motion for new trial alleges that the verdict was grossly excessive, and assigns error on the following parts of the charge of the Court: "A physical injury which destroys or impairs the power of a human being to labor is an actionable injury, and this is true though the person injured should be a married woman. A physical injury which impairs the capacity of a married woman to labor is classified by the law with pain and suffering. It is not to be measured by pecuniary earnings, for such earnings, as a general rule, belong to the husband, and the right of action for their loss is in him, but the wife herself has such an interest in her working capacity as that she can recover something, in a proper case, for its impairment, and what she is allowed ought to be more or less according to the nature of the injury and the length of time during which the pain and deprivation is likely to continue. Under such circumstances there is no known rule of law by which witnesses can give you in dollars and cents the amount of injury, but this is left, as I have remarked, to the enlightened conscience of impartial jurors." John L. Hopkins & Son, for plaintiff in error. In this case the plaintiff could only recover for pain, and in the preceding section the Court had charged fully upon this branch of the case. The destruction of the power of labor was not a separate item for which a recovery could be had; it was but one element of pain. By giving this section in the charge, the Court in effect allowed a double recovery for the same thing, and the jury promptly took advantage of the opportunity, as shown by the amount of the verdict. The impairing of plaintiff's working capacity was not an element of damages. If proper at all, it should have been submitted under the head of pain. Hoke & Burton Smith and W. H. Rhett, contra. BLECKLEY, C. J. 1. The contention of the learned counsel for the railroad company is that it was error to submit the impairment of the power of a married woman to labor as a distinct element of damage, and allow her to recover for it. He insists that this damage was not sued for, and that in another part of the charge of the Court the entire subject of pain was dealt with; hence the jury were allowed to give for impairment of her power to labor what they pleased, even though it were greatly more than her husband would be entitled to recover were he the plaintiff in the action. It is true that it is not expressly alleged in the declaration that the capacity of Mrs. Jacobs, the plaintiff in the court below, to labor was impaired, but a definite injury to her person is alleged and described, which incapacitated her to walk without the aid of crutches. An injury which disables one from walking without crutches necessarily impairs to some extent ability to labor. It follows that such impairment is embraced by necessary implication in what the declaration alleges. The injury sued for being one which incapacitated the plaintiff to walk without crutches, and consequently one which impaired her ability to labor, compensation for this impairment of her physical perfection was a part of the redress for which the action was brought, and to which the plaintiff, when she verified by evidence the case set out in her declaration, was entitled. According to the declaration, the plaintiff "was thrown violently to the ground, striking her knees on the stone pavement of the street. The fall caused great pain and suffering and injury. She will always suffer from said injury, and her capacity for enjoyment has been greatly lessened. Her knees were very much bruised, and the bones. much injured. She has been compelled ever since to remain under the treatment of surgeons. She has been confined to her bed six weeks, and has been unable to walk at all since the occurrence except on crutches. The injury to her knee is permanent, and she will be compelled to use crutches all her life. She has been put to great expense and suffering on account of said injuries, and has been entirely unable to care for herself." She claims damages in the sum of $1,500. 2. Grant that the entire subject of pain was dealt with in a previous part of the charge of the Court, the jury could not have understood, from the instructions added on the subject of impaired power to labor, that they were to give double damages for pain and suffering. On the contrary, they must have understood that the general instructions related to pain other than that discussed in the special instruction. It seems to us that the loss or material impairment of any power or faculty is matter for compensation, irrespective of any fruits, pecuniary or otherwise, which the exercise of the power or faculty might produce; and irrespective, also, of any conscious pain or suffering which the loss or impairment might occasion. Every person is entitled to retain and enjoy each and every power of body and mind, with which he or she has been endowed, and no one, without being answerable in damages, can wrongfully deprive another, by a physical injury, of any such power or faculty, or materially impair the same. That such deprivation or impairment can be classed with pain and suffering was ruled by this Court in Powell v. Railroad Co., 77 Ga. 200, 3 S. E. Rep. 757; and, inasmuch as enforced idleness or diminished efficiency in offices of labor is calculated to give rise to mental distress, it is not error to describe the thing by its effects, and call it pain and suffering. But it need not be so called necessarily, and consequently it was not misleading for the Court to treat of it separately as a subject-matter for compensation in damages, although the plaintiff was a married woman. Touching this element of her case, the measure of damages would be neither more nor less than that which the law recognizes for pain and suffering. There is no standard but the enlightened conscience of impartial jurors. The other points made by the record were not argued by counsel, and, if they embrace any error, we have been unable to discover it. Judgment affirmed.1 Topic 3. Illness caused without Bodily Impact 2 33. ALLSOP v. ALLSOP EXCHEQUER OF PLEAS. 1860 5 H. & N. 534 DECLARATION. That, before the committing of the grievance, the said Hannah was the wife of the plaintiff William Allsop; and the de 1 [NOTES: "Recovery by wife of damages for impaired earning power." (H. L. R. IX, 473; XIV, 61.) "Decreased earning capacity as element of damages." (H. L. R., XV, 76.)] 2 [For the application here of the principle of remoteness of consequence, see Book II, Title C, Sub-title (II), post.] fendant, on divers occasions, falsely and maliciously spoke and published of the plaintiff Hannah the words following (to the effect that he had had carnal connection with her whilst she was the wife of the plaintiff William Allsop); Whereby the plaintiff Hannah lost the society of her friends and neighbours, and they refused to and did not associate with her as they otherwise would have done, and she was much injured in her credit and reputation, and brought into public scandal and disgrace: and, by reason of the committing of the grievances, the said Hannah became and was ill and unwell for a long time and unable to attend to her necessary affairs and business, and the plaintiff William Allsop was put to and incurred much expense in and about the endeavouring to cure her of the illness which she laboured under as aforesaid by reason of the committing of the said grievances; and the said William Allsop lost the society and association of his said wife for a long time in his domestic affairs, which he otherwise would have had. Demurrer and joinder. Quain, in support of the demurrer. The words in this declaration are not actionable without special damage, and no sufficient special damage is alleged. . . . Prentice, contra. Admitting that the declaration does not show a cause of action in respect of the loss of society by the plaintiff Hannah, there is an allegation that "by reason of the committing of the grievances the said Hannah became and was ill and unwell for a long time and unable to attend to her necessary affairs and business." The question. is whether such illness is not a sufficient special damage to constitute a cause of action. [POLLOCK, C. B. The law deals with damage which might reasonably result, not with that which may depend on the idiosyncrasy of the party. Suppose the allegation was that the plaintiff, being a person liable to the gout, was thrown into a violent fit of anger, and was seized with a fit of the gout.] It is submitted that it would be sufficient; since the defendant was guilty of a wrongful act. POLLOCK, C. B. We are all of opinion that the defendant is entitled to judgment. There is no precedent for any such special damages as that laid in this declaration being made a ground of action, so as to render words actionable which otherwise would not be so. We ought to be careful not to introduce a new element of damage, recollecting to what a large class of actions it would apply, and what a dangerous use might be made of it. In actions for making false charges before magistrates, for giving false characters, and for torts of all kinds, illness might be said to have arisen from the wrong sustained by the plaintiff. The case of Ford v. Monroe, 20 Wendell, 210, is the only authority that has any tendency to throw light on the argument; but we ought not to act upon the authority of that case, opposed as it is to the universal practice of the law in this country. The courts here have always taken care that parties shall not be responsible for fanciful or remote damages, or in fact any that do not fairly and naturally result from the wrongful act itself. . . In one sense nothing is more natural than that such [suffering] should be the case. So there are many other consequences which may follow in libel and slander in respect of which there is no remedy. This particular damage depends on the temperament of the party affected, and it may be laid down that illness arising from the excitement which the slanderous language may produce is not that sort of damage which forms a ground of action. . BRAMWELL, B. I am of the same opinion. The question seems to me one of some difficulty, because a wrong is done to the female plaintiff who becomes ill and therefore there is damage alleged to be flowing from the wrong; and I think it did in fact so flow. But I am struck by what has been said as to the novelty of this declaration, that no such special damage ever was heard of as a ground of action. If it were so I am at a loss to see why mental suffering should not be so likewise. It is often adverted to in aggravation of damages, as well as pain of body. But if so, all slanderous words would be actionable. Therefore, unless there is a distinction between the suffering of mind and the suffering of body, this special damage does not afford any ground of action. There is certainly no precedent for such an action, probably because the law holds that bodily illness is not the natural nor the ordinary consequence of the speaking of slanderous words. Therefore on the ground that the damage here alleged is not the natural consequence of the words spoken by the defendant, I think that this action will not lie. 34. Judgment for the defendant. WRIGHT v. SOUTHERN EXPRESS COMPANY UNITED STATES CIRCUIT COURT, WESTERN DISTRICT OF TENNESSEE. 1897 ACTION by Florence H. Wright against the Southern Express Company. This is an action for damages for personal injuries alleged to have been sustained in a struggle between the plaintiff and the defendant's agent over a parrot in its cage, constructed of wooden strips tacked together with nails, such as is commonly used in shipping birds. It had come from Nicaragua, consigned by a brother to his sister Mrs. Williams. The plaintiff, being a sister of the consigner and consignee, had heard, according to her story, that the bird was to be sold for charges, delivery to the consignee having been delayed by her absence. The plaintiff, appearing at the express office, proposed to buy the bird. Parleying ensued, which resulted in her paying the amount of the charges, executing a receipt on the delivery book, and the consequent delivery to her then and there. She laid her hands upon the cage to send it away by her servant, accompanying her, when the agent was warned by a bystander |