376 F2d 146 Tucker v. B B Lewis

376 F.2d 146

Vernon TUCKER and Ruthlyn O. Tucker, Appellants,
B. B. LEWIS, Appellee.

No. 23594.

United States Court of Appeals Fifth Circuit.

May 1, 1967.

Frank Love, Jr., Atlanta Ga., for appellant.

Ralph Roger Williams, Tuscaloosa, Ala., Jackson W. Stokes, Elba, Ala., Steven C. Stone, Chattanooga, Tenn., L. Norman C. Fisher, Atlanta, Ga., for appellee.

Before TUTTLE, Chief Judge, AINSWORTH, Circuit Judge, and FULTON, District Judge.


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Appellants are aggrieved by the general verdict of damages for physical injuries which the jury awarded plaintiff-appellee, a truck driver, in this diversity case. They assigned several errors by the district judge in the trial of the case, most of which relate to the instructions given to the jury. The principal error complained of concerns the trial court's instruction on the question of damages for loss of future earning power. Though it is true that the district court sustained an objection by defendants-appellants based on the ground that some of plaintiff's evidence was speculative as it related to the claim for loss of future earnings, we cannot say, considering the record as a whole, that it was error to charge the jury on this element of damages. The judge's charge was carefully phrased, and placed the responsibility on the jury, where it properly belonged, to determine if there was sufficient evidence to justify awarding damages for loss of future earning power. There was definite medical evidence of permanent physical disability to plaintiff of 25 per cent of his body as a whole. We believe, under the circumstances, there was ample evidence to warrant submission of this issue to the jury under the charge given by the trial court, which followed the Georgia law on the subject. See Jones v. Hutchins, 101 Ga.App. 141, 113 S.E.2d 475 (1960); Wright v. Lail, 219 Ga. 607, 135 S.E.2d 418 (1964). We do not read Hunt v. Williams, 104 Ga. App. 442, 122 S.E.2d 149 (1961), as opposed to our view. Cf. Neese v. Southern Railway Company, 350 U.S. 77, 76 S.Ct. 131, 100 L.Ed. 60 (1955), reversing the Fourth Circuit Court of Appeals, 216 F.2d 772 (1954).


After considering all the errors complained of, we are satisfied that the judgment, based on the jury verdict, should be affirmed.