Candler v. Smith

Stephens, J.,

dissenting. Plaintiff sues to recover damages for alleged severe nervous shock caused from her having become frightened at the animal and having fallen and become injured in efforts to escape from it while it was pursuing her. There is evidence that, after the plaintiff’s alleged experience with the animal which was in August, 1931, notwithstanding she went to bed, she drove her automobile and went to the defendant’s house, that she was in bed at intervals, but pursued her duties as a school-teacher, that she lost one day prior to the Christmas holidays, and that was immediately following the attack by the monkey, that from September, 1931, until September, 1932, she lost only thirteen days, that in October, 1932, she was in bed over four weeks suffering with nervousness and pains in her head, that she was not treated by a physician until April, 1932, that the physician who treated her testified that if her nervous condition had been caused by heavy work and on account of her age and her physical makeup, and if she was in good condition, he would not think the fright caused her nervous condition, that after 1932 the plaintiff’s nervous condition became worse. The entire evidence was sufficient to authorize an inference that the plaintiff’s nervous condition was not caused entirely by her experience with the animal. The allegations in the petition that the plaintiff’s nervous condition was caused from her experience with the animal, and the denial of this allegation by the defendant in the plea, and the evidence, made an issue under the pleadings and the evidence for the jury as to whether the plaintiff’s condition was caused entirely or in part from her experience with the animal as alleged.

The court charged the jury generally that the burden was on the plaintiff to prove the allegations of the petition by a preponderance of the evidence. The only charge relative to damages was as fol *679 lows: “If you believe plaintiff is entitled to recover, and you believe she suffered pain, and permanent resulting injuries, she would be entitled to recover on this specification of damages. As to. the amount of damages, the law declares there is no standard by which' it can be measured except the enlightened consciences of impartial jurors. You would determine this from the evidence and see what sort of injuries she received; their character as to producing or not producing pain, whether they have ceased, or whether they will continue in the future, and then desiring to be fair and just to both parties, if the plaintiff is entitled to recover you would award her on this classification of damage such sum as you believe would be fair compensation for her pain and suffering, such sum as would receive the approval of your enlightened consciences.”

The defendant duly made the written requests to charge as follows, and to the refusal of the requests he excepts: “If the damages are only the imaginary or possible result of the tortious act, or other and contingent circumstances preponderate largely in causing the injurious effect, such damages are too remote to be the basis of recovery against the wrong-doer (section 4509).” “If you believe from the evidence that subsequent to the date of the alleged tort the plaintiff suffered an illness or a nervous breakdown, as claimed, before you would be authorized to allow damages on account of this subsequent condition, you must believe by a preponderance of the evidence that this physical condition was a result, directly or consequently, of the tortious act complained of.” “I charge you' that if the plaintiff, subsequent to the date of the alleged tortious act, suffered an illness or physical impairment, and you believe from the evidence that this condition resulted from causes not attributable to or connected with the alleged'tort, you would not be authorized to allow any damages on account of this subsequent condition.” “In determining whether the damages claimed from a subsequent illness can be traced to a prior injury, you would have the right to consider the length of time between a former injury and the subsequent illness; also you may consider the fact that such subsequent illness was the result of other causes, and if in your opinion such damages are only the imaginary or possible result of the tortious act, or other and contingent circumstances largely preponderate in causing the injurious effect, such damages are too remote to be the basis of a recovery.” “Before the plaintiff can *680 recover damages for physical injuries, you must find from the evidence that the proximate cause of such injuries was the negligent act of defendant. By proximate cause is meant the direct and natural result of an act done and that there is no other culpable and efficient agency or act intervening between the defendant’s act and the plaintiff’s injury.” "Damages traceable in some measure to a tortious act, but resulting chiefly from other and contingent circumstances and not the legal or natural consequences of the act, may be too remote to be the basis of a recovery against the wrongdoer.”

The above requests, while some of them are more or less duplications of one another, were pertinent to the issues made by the pleadings and the evidence and were not covered by the general charge. The defendant was entitled to have the issue as to whether the plaintiff’s injuries were caused from her alleged experience with the animal, or from other causes, specifically submitted to the jury. The defendant invoked such specific charge in the written requests to charge which were refused. The court should have charged the law as embodied in these requests. In my opinion the court’s failure to charge as requested was error demanding the grant of a new trial to the defendant. Civil Code (1910), § 4509. See Central of Georgia Railway Co. v. White, 135 Ga. 524 (3) ( 69 S. E. 818 ).

I concur in the other rulings, but not in all that is said in the opinion. I dissent from the judgment of affirmance.