
    SOUTHERN RAILWAY COMPANY v. CLARIDAY.
    Where on the trial of an action for damages for personal injuries counsel for the plaintiff announced to the court and jury that he claimed nothing- for permanent injuries, a charge of the court which, fairly construed, authorized a recovery for permanent injuries was erroneous, and, when the verdict for the plaintiff was, under the evidence, extremely liberal, cause for a new trial.
    Argued May 25,
    Decided June 10, 1904.
    Action for damages. -Before Judge Fite. Gordon superior court. November 14, 1903.
    
      Shumate & Maddox and Harkins & Dodd, for plaintiff in error.
    
      W. 22. Rankin, contra.
   Fish, P. J.

Clariday sued the Southern Railway Company for damages for personal injuries. There was a verdict for the plaintiff. To the overruling of its motion for a new trial the defendant excepted. -On the trial plaintiff’s counsel announced to the court and jury that the plaintiff claimed nothing for permanent injuries. The court instructed the jury as follows: “ In • the event you should find that he .[the plaintiff] has not entirely recovered, and is still unable to do as much manual labor as he would had he not been injured, you would allow him something for that, from now up to the time he would entirely recover, and would get the present value of that at seven per cent.” Error is assigned upon this charge in the motion for a new trial, one of the grounds of alleged error being that it, in effect, authorized a recovery of damages for permanent injuries, in the face of the fact that plaintiff’s counsel had announced to the court and jury that none were claimed. We think the point well taken. While the words “permanent injuries ” were not in the charge excepted to, the language used plainly authorized a recovery for the plaintiff’s diminished physical capacity to work from the time of the trial to some indefinite period in the future when he might entirely recover. Such a recovery would certainly be for future disability to labor, and might possibly cover permanent disability. The amount of the verdict was extremely liberal, and the error in the charge requires the grant of a new trial.

Judgment reversed.

All khe Justices concur.  