
    George W. French vs. Antonio Forgoine.
    Knox County.
    Decided March 7, 1925.
   Action to recover-personal damages resulting from an automobile collision. The defendant was defaulted and the case was submitted to the jury on the question of damages. The plaintiff recovered a verdict of four thousand eight hundred eighty-five ($4,885) dollars. The defendant seeks a new trial on the ground that the damages assessed are excessive.

The plaintiff is a fish peddler, aged seventy-five years. He was confined to the hospital for three weeks as a result of the accident. After leaving the hospital he was confined to his bed more or less for about five weeks. During the latter period he was cared for by his son and daughter. He claims that from the time of the accident to the time of the trial, a period of about ten months, he has been unable to labor, still suffers pain, is nervous, and has lost about thirty pounds of flesh. He also claims debts incurred for one hundred dollars, borrowed money, for ambulance service and medical bills of about thirty dollars. According to the medical testimony there is doubt as to complete recovery.

Z. M. Divinal and O. H. Emery, for plaintiff.

Arthur Chapman and William B. Mahoney, for defendant.

Necessarily no. fixed standard, applicable to all cases, can be adopted for the measure of damages in an action like the one at bar, and we are hesitant about reducing a jury verdict upon that question, but after a careful consideration of the record, taking into account the plaintiff’s age, his earning capacity which must decrease with increasing years, the annuity value of a verdict, and all the other factors in the problem, we feel that the verdict is excessive.

If plaintiff remits all the verdict in excess of three thousand dollars within thirty days after receipt of rescript by the Clerk of Courts then motion is overruled, otherwise new trial granted. So ordered.  