Leggett v. Benton Bros. Drayage & Storage Co.

227 S.E.2d 397, 138 Ga. App. 761, 1976 Ga. App. LEXIS 2313
CourtCourt of Appeals of Georgia
DecidedApril 20, 1976
Docket51635
StatusPublished
Cited by24 cases

This text of 227 S.E.2d 397 (Leggett v. Benton Bros. Drayage & Storage Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Leggett v. Benton Bros. Drayage & Storage Co., 227 S.E.2d 397, 138 Ga. App. 761, 1976 Ga. App. LEXIS 2313 (Ga. Ct. App. 1976).

Opinions

Deen, Presiding Judge.

Code § 3-1004 provides for a general two-year statute of limitation on actions for "injuries to the person”; there is a four-year limitation applicable to actions for injuries to personalty. Code § 3-1002. The issue here, simply stated, is whether a claim for lost wages and for lost earning capacity must be brought within two years or within four years after the right of action accrues; and [763]*763while the question may be stated simply, its resolution proves more difficult.

We begin with Frazier v. Ga. R. &c. Co., 101 Ga. 70, 76 (28 SE 684) wherein it was held: "Where an injury is done to the person of the plaintiff, the pecuniary damage sustained thereby can not be so separated as to constitute an independent cause of action; for the cause of action is single and consists of injury to the person, and the damages are the consequence merely of that injury.” This reasoning was reiterated by the Supreme Court in Hutcherson v. Durden, 113 Ga. 987, 991 (39 SE 495), the language of Code § 3-1004 "injuries done to the person” being held to include "... not only injuries to the physical body, but every other injury, for which an action may be brought, done to the individual and not to his property.” The Court of Appeals decision in Dalrymple v. Brunswick Coca-Cola Bottling Co., 51 Ga. App. 754 (181 SE 597) was consistent with the Supreme Court’s analysis: "An injury to the 'person,’ for which, when a right of action accrues, the action must be brought within two years; . . ., is an injury to the physical body of the person. An injury to one’s health is an injury to the person. The mere fact that one who has received an injury to his person suffers as a result thereof a monetary loss such as expenditures for doctors’ bills, loss of earning capacity, etc., does not make the injury any less an injury to the person. The resulting monetary damages are damages resulting from an injury to the person, and not from an injury to a property right.” And again in Fraser v. Atlanta Title &c. Co., 66 Ga. App. 630 (1) (19 SE2d 38) we find this court holding that "[a]n injury to one’s health is an injury to the person.” After Fraser however, the issue of the applicable statute of limitation to claims for medical expenses, lost wages and lost earning capacity follows a confusing and somewhat tortuous path through the decisions of the Court of Appeals.

In Robinson v. Bomar, 122 Ga. App. 564 (177 SE2d 815) it was held that a claim for lost wages sought recovery for an injury done to the plaintiffs personalty and that the four-year limitation was applicable. This seemingly is in direct opposition to the Supreme Court’s statement in Frazier that pecuniary damages suffered as [764]*764the result of physical injury are "injuries to the person” and in contradiction to the Court of Appeals’ holding in Dalrymple that monetary damages suffered as the result of an injury to the person are not injuries to a property right. Significantly Robinson does not cite Frazier or Dalrymple but merely offers the Code section as authority for its holding.

In Davis v. Patrick, 128 Ga. App. 677 (197 SE2d 743) it was held, again without mention of Frazier or Dalrymple, that a claim for loss of earnings and/or earning capacity was for damage done to property and not for injury to the person and that the four-year statute of limitation applied. Thus Davis had the following results: (1) With regard to lost wages or earnings, it stands with Robinson and is thus in apparent conflict with theFrazierDalrymple line of decisions; and (2) with regard to lost earning capacity it is in apparent conflict with Frazier and in express conflict with Dalrymple.

There is thus a conflict, either express or apparent, in the cases on the statute of limitation applicable to a claim for lost wages and lost earning capacity.

Were we able to settle the conflict strictly by resort to the rule of stare decisis, the oldest unoverruled decision, in this case Dalrymple would be followed and we would affirm this case, holding that the claims for lost wages and lost earning capacity were for injuries to the person and barred by a two-year limitation. See Boston Ins. Co. v. Barnes, 120 Ga. App. 585, 590 (171 SE2d 626); Dixon v. Phillips, 135 Ga. App. 161, 163 (217 SE2d 331). We agree, however, with the Supreme Court that stare decisis is a valid and compelling basis of argument but that it is not a talisman before which justice must give way. Hall v. Hopper, 234 Ga. 625, 631 (216 SE2d 839). See also Jarrett v. Parker, 135 Ga. App. 195, 197 (217 SE2d 337). We are also mindful that this court is bound by the decisions of the Supreme Court. Thus we are required to analyze the Dalrymple, Robinson and Davis decisions with the precedents of the Supreme Court and with the concept of justice as our polestars.

1. We turn now to the issue of the applicable statute of limitation for a claim for lost earning capacity. It is probable that no element of damages has caused more [765]*765confusion than recovery for "lost earning capacity”; perhaps this stems from the similar sounding "diminished capacity to labor,” which is an element of pain and suffering recoverable by one who is physically injured. Recovery for "lost earning capacity” is, however, a separate element of damages recovery of which physical injury to the plaintiff resulting in a permanent or total physical disability is the essential element. McDonald v. Southern R. Co., 24 Ga. App. 608 (2) (101 SE 714). Damages allowed to a plaintiff for injury to his earning capacity are compensatory, allowing a pecuniary recovery for a diminution in the physical ability to work resulting from an injury to the person of the plaintiff. Atlantic C. L. R. Co. v. Ansley, 84 Ga. App. 89 (65 SE2d 463). The confusion as to the applicable statute of limitation stems, we believe, from the fact that recovery for "lost earning capacity” is an item of special damages which requires some evidence upon which a jury can base with reasonable certainty a finding as to amount of such damages. City of Atlanta v. Feeney, 42 Ga. App. 135 (3) (155 SE 370). This evidence as to the measure of such damage includes earnings before and after the injury. City Council of Augusta v. Drawdy, 75 Ga. App. 543, 547 (2) (43 SE2d 569). This is but another way of saying that the law does not presume damage to one’s earning capacity but that there must be evidence as to the measure of such damage to be recoverable. Code § 105-2006. The gravamen of the action remains compensation for physical injury. McDonald v. Southern R. Co., 24 Ga. App. 608 (2), supra; Holt v. Ga. R. & Power Co., 24 Ga. App. 607 (2) (101 SE 758). The pecuniary damage which must be shown is merely proof of the measure of recovery. See Atlantic C. L. R. Co. v. Ansley, 84 Ga. App. 89 (1), supra. On this analysis, if allowable damages for lost earning capacity are compensatory, allowing a pecuniary recovery of a diminution in the claimant’s physical ability to work, then the monetary damage which is the measure of recovery is, in the language of Frazier, "the consequence merely of that injury [to the person].” The fact that the plaintiff has suffered an injury to his pocketbook or his personalty as the result of an injury to his person does not "constitute an [766]

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Leggett v. Benton Bros. Drayage & Storage Co.
227 S.E.2d 397 (Court of Appeals of Georgia, 1976)

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Bluebook (online)
227 S.E.2d 397, 138 Ga. App. 761, 1976 Ga. App. LEXIS 2313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leggett-v-benton-bros-drayage-storage-co-gactapp-1976.