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HOGAN v. MALCOM et al.
Action for damages. Walton Superior Court. Before Judge Cobb.
HALL, Judge.
When there is evidence of pain and suffering by the plaintiff but no evidence to support the special damages pleaded in the petition a verdict in the same amount as the plaintiff's pleaded medical expenses will not be set aside as being inadequate.
The plaintiff (plaintiff in error) sued the defendant (defendant in error) for personal injuries the plaintiff allegedly received in a collision when the defendant ran into him in an intersection after failing to stop at a stop sign and otherwise driving negligently. The plaintiff pleaded damages of $5,272.38, of which $272.38 were special damages (medical expense). After being awarded a verdict and judgment of $272.38 the plaintiff made a motion for new trial on the general and special grounds. The trial court overruled the motion for new trial, and the plaintiff assigns error on this judgment.
1. Special ground 7 complains that the trial judge charged the jury on comparative negligence when the evidence did not authorize a finding of negligence on the part of the plaintiff. The defendant makes the point that the charge complained of is not set forth in the plaintiff's assignment of error. "A special ground of a motion for a new trial is not complete within itself so as to present a question for adjudication where, to make it intelligible, it is necessary to refer to other parts of the record, including the charge of the court." Bryant v. State, 104 Ga. App. 496, 497 (121 SE2d 920).
2. There is no merit in special ground 8 which complains that the court failed to charge the jury on the measure of damages for diminution in the plaintiff's capacity to earn money. The court's charge included an instruction on this subject. See Hunt v. Williams, 104 Ga. App. 442, 450 (122 SE2d 149), respecting proof of such damages.
The case of Tallent v. McKelvey, 105 Ga. App. 660 (125 SE2d 65), cited by the plaintiff is different from this case. There the evidence "authorized the finding of the jury establishing the liability of the defendant, and the undisputed evidence showed actual [special] damages to the plaintiff resulting from the injuries sustained" of a greater amount than the jury's verdict; and the verdict was set aside as being inadequate under the undisputed evidence. In the present case, however, the record does not disclose any proof of the special damages alleged in the petition. There is evidence of pain and suffering by the plaintiff. As the court charged the jury, there is no mathematical rule by which damages for pain and suffering may be ascertained; the only rule recognized by law for determining such damages is the enlightened conscience of fair and impartial jurors. Redd v. Peters, 100 Ga. App. 316, 318 (111 SE2d 132). The jury was authorized to award the verdict in the present case as damages for the plaintiff's pain and suffering.
The trial court did not err in overruling the motion for new trial.
Judgment affirmed. Carlisle, P. J., and Bell, J., concur.
William L. Preston, contra.
Mark Dunahoo, for plaintiff in error.
Friday May 22 22:19 EDT

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