I concur in all divisions of the majority opinion except division 9, from which ruling I dissent. In paragraph 25 of the original petition it is alleged: "That petitioner's brother was a strong and able-bodied man 37 years of age, who had a reasonable expectancy of 29.64 years, and was capable of earning the sum of $125 to $130 per month as bridge *Page 745 gang workman; that with increasing years and added experience his earning capacity should have increased to at least $175 per month, or other large sum." By amendment the figures "29.64" in paragraph 25 were struck and "at least 40" was inserted. On the trial Mrs. Mamie Wright testified: "I am a sister of the late Oscar Petty . . at the time of his death he made his home with me. He worked on the Western Atlantic Railroad. . . My brother was not married. Neither one of his parents were living at the time he was killed. . . My husband is not living, he is dead; he has been dead about eleven years. . . At the time that my brother was killed, he had been making contributions to my support all along. At the time he was killed, as to how much he was contributing to me per month, well, he just lived there as one of the family, and I never thought of keeping up with anything like that; he was just like the man of the house, when he seen I needed anything like that; he would get it, and he paid me so much, I say $40, and it might have been more than that if I had just kept up with it. I wasn't keeping books on it. . . At the time that my brother died, as to whether or not I know approximately how much he was making per month as an employee of the defendant, well, he was making around $175 or $180, I think it was, I seen his checks several times, I don't know exactly what; I seen two of his checks after he was killed. . . As to how much I averaged making per week, the high and the low, well, $11 or $12, I don't remember, because I would get to work more some weeks than I did others. I said I was under the care of a doctor, and I had doctor bills to pay. Yes, I have a family and was maintaining a home at the time my brother was killed. I did not have any other income other than the work I was able to do myself and the contributions that my brother made to me." According to certain payroll checks and data introduced in evidence, the average monthly wages of the deceased, Petty, for the period from January to June were approximately $129.70. According to the employee's withholding exemption certificate filed with the employer, he claimed exemptions from taxation of his income for two persons, in that he furnished more than one-half the support of those two persons. No mortality tables or annuity tables were introduced in evidence, and the court charged the jury: "On the *Page 746 other hand, if upon consideration of the case at this point you decide that the plaintiff is entitled to recover, you would go further and determine how much the plaintiff is entitled to recover, and I charge you, gentlemen, in that connection, that the plaintiff in this case, if you find that Oscar Petty was her brother, and that he contributed to her support, and that she was dependent upon him, then your verdict would be conditioned upon how much contributions he made to her support, to what extent and how much this contribution was to her support. In other words, she would not be entitled to recover for the full value of his life, but would be entitled to recover whatever her pecuniary loss is by reason of the death of her brother. In that connection, you would look to the age of her brother, his health, his habits, his ability to earn money, the amount that he earned, and you will take into consideration that people do not work every day of their life, frequently in old age their earning capacity becomes impaired, and you would take into consideration how much he contributed toward the support of his sister, how long he would have been in position on account of his age and his physical strength and earning capacity to have contributed to her support. You would determine how much she would be entitled to recover on that basis, and having done that, it would then be your duty to reduce to its present cash value, and the way you do that would be what is known as the seven percent interest rule, reduce the gross amount she would be entitled to recover for year after year during his expected life down to its present cash value, being the seven percent per annum interest rule."
It seems to me that the jury was authorized to find or infer that the deceased was acting as the head of his sister's family, and that in addition to what his sister earned and what he regularly contributed to her, the deceased, within the limits of his earnings, had furnished anything that was reasonably necessary for the support of his sister's family from his earnings from the railroad company. It also seems to me that the jury would have been authorized under the evidence to find that the brother's life expectancy was greater than that of the average man, that his earning capacity would increase, and that he would, as his earnings increased, increase his contributions to his sister, thereby *Page 747 making the total pecuniary loss to her by reason of his death proportionately greater. Central of Georgia R. Co. v. Minor,2 Ga. App. 804 (59 S.E. 81). Under the evidence and the charge of the court as given, the jury was not required to use the annuity tables, and in passing on the amount to be allowed the plaintiff (if they found for her), and the jury may, as indicated above, employ any method known to them as upright and intelligent men which is just and fair in estimating the damages. CentralRailroad Bkg. Co. v. Wiggins, 91 Ga. 208 (18 S.E. 187). The verdict in this case is the second award by a jury of a verdict for the plaintiff in the amount of $20,000. On the former trial the trial judge himself granted the new trial on account of an error in his charge. We thus have the damages fixed at $20,000 by two juries, and the verdict has the approval of the trial judge in the present case. There is no contention that there was anything to show bias and prejudice on the part of either jury except what the defendant claims is the excessiveness of the verdict. I do not think that the verdict should be upset on the ground that it shows bias and prejudice; and if this be correct, the mere voluntary writing off of part of the verdict by the plaintiff is not itself a ground for reversal, where it does not appear that this was done on the suggestion of the trial judge or that his refusal of the new trial was influenced by the reduction of the verdict. Bugg v. Harper, 36 Ga. App. 39, 40 (135 S.E. 109). I do not think that the motion for new trial should be granted on the ruling made in division 9 of the majority opinion, and I think that the motion for rehearing should be granted.