We reverse. The testimony of the plaintiff as to his damages was based wholly upon speculation and conjecture, and a verdict based upon evidence of that character cannot stand.
Southern Grocery Stores v. Greer,
There is nothing that would authorize a finding that the company was liable to Mallard in any sum under the policy, even if demand had been made and if suit had been brought in his behalf against the company. The policy provisions were neither pleaded nor proven. Plaintiff’s contract for fees was wholly contingent upon a recovery from the company by Mallard. The testimony of plaintiff’s supporting witness concerning what would-have been a reasonable fee was based entirely upon plaintiff’s testimony, and thus was just as speculative and conjectural in character as was plaintiff’s.
While it is true that an expert may give his opinion without stating the facts upon which it is based, yet when the basis of his opinion is given and it appears that it is wholly speculative or conjectural, it must follow that his opinion is without foundation and has no probative value. Speculation and conjecture by an expert is still speculation and conjecture, and will not support a verdict. “It must be remembered that the opinion evidence is that of an expert in respect to the
stated facts
about which the opinion was expressed. It is proper and desirable that expert testimony should be kept within proper bounds. . . ‘Expert testimony is' to be weighed and judged like any other, and the same tests are to be applied thereto. . .” 16 CJ 756, § 1556.”
Buckhanon v. State,
*112 It was error to overrule the general grounds of the motion.
The testimony relative to what the insurance company would have done had demand been made on it, and what would have been done in connection with the bringing of a suit against the company, and what the verdict of the jury would have been, was speculative and conjectural and its admission over the objection was error. “ [I] f it appears from the [witness’] own testimony that [he] is merely surmising ... it should be excluded. . .”
English v. Georgia Power Co.,
For the same reason, admission of testimony as to what the insurance company had done in another case concerning the claim of another individual under the disability provisions of the same kind of policy, as evidence of what the company would have done with the claim involved in this litigation, and that the company would have acted in bad faith in denying the claim, over the objection that it was purely conjectural and that what had happened in one case as to one individual could not be assumed as the fact as to what would happen in another case as to another individual, was error, especially since it did not appear whether the policy provisions were the same or whether the basis of the claims was the same.
We observe that plaintiff asserted in his testimony that he was assuming the verdict in the other case would stand up on appeal and it was his opinion that it would do so, but in fact it did not stand. The other case to which he referred,
United Ins. Co. v.
*113
Murray,
The case of
Studdard v. Evans,
Nevertheless, since an attorney’s contract of employment, though contingent in nature, is a property right
(Studdard v. Evans,
Concerning his actual damages, in
Witham v. Cohen,
100 Ga.
*114
6701 (
By the same token, the procuring of the cancellation of the contract between Mr. Fryhofer and his client could not have damaged him in a sum greater than that which might have accrued to' him as a benefit under it. How is that to be measured? It is that percentage of the recovery that his client was entitled to have under provisions of the policy as provided in the contingent fee contract. Consequently, if Mr. Fryhofer is to recover more than nominal damages he must plead and prove, by competent evidence, the extent of his client’s right to recover against the company. Cf. Richards v. International Agricultural Corp., 10 F2d 218, 219, where Judge Sibley, dealing with a situation where the defendant was alleged to have wilfully and wrongfully withheld a book of accounts making it impossible for plaintiff to collect moneys owing to him, said: “A result intended by a wrongdoer cannot be remote. Civ. Code Ga. 1910, §§ 4510, 4511 [now §§. 105-2009, 105-2010]. Nor is the damage too speculative. While details as to the solvency of each debtor and the amount due by him are not pleaded, as they should ordinarily be, the lack is excused by the allegation that the plaintiff has not the information and is deprived of it by the wilful act of the defendant. . .” Mr. Fryhofer neither pleads the provisions of the policy nor the facts showing a right of his client to recover thereunder, and the amount of his entitlement, nor offers proof thereof; nor does he excuse himself from doing SO' by any allegation of the petition, as was done in the Richards case. “ [W] hile imaginary and speculative profits can not be recovered as dam
*115
ages, profits which would, have been received but for the acts of the defendant may be recovered as damages when there are criteria, definite and certain, upon which an adjudication may be based.”
Central of Ga. R. Co. v. Cooper,
Nothing said in this opinion is to be construed as an approval of the conduct of the agents 1 of the insurance company or of the derogatory remarks made by them concerning the plaintiff.
Judgment reversed.
Notes
We have observed it heretofore.
Clinton v. State Farm Mut. Auto. Ins. Co.,