Padgett v. WilliamsPadgett v. Williams
- Reporters:
- , ,
- Before:
- Sutton
L. W. Padgett filed this suit against A. H. Williams in the Civil Court of Fulton County and alleged, substantially, that the defendant had damaged the personal property of the plaintiff, a certain described Plymouth automobile, in the sum prayed for in the petition; that said automobile was parked in front of the plaintiff’s home at 877 Boulevard, N. E., Atlanta, on the night of May 9, 1949, and at about 9:30 that night the defendant drove his described Buick automobile at a reckless and high rate of speed into and struck the plaintiff’s automobile and damaged it in the manner alleged; that the defendant was operating his automobile while intoxicated when he struck and damaged the plaintiff’s automobile; that the, plaintiff’s automobile was damaged to such an extent as to require certain repairs, the cost of the material and labor for making these repairs being $299.09, an itemized statement being set out in the petition; that the plaintiff’s automobile prior to said damage was reasonably worth $875, and after said damage and repairs was reasonably worth only $725, and that the petitioner was damaged in the sum of $150 in depreciation of the value of said automobile; that the plaintiff’s operations as a real-estate salesman require the use of his automobile in the course of his business and that on account of the alleged damage to his car he was deprived of the use of the same for eight days, the value thereof being $7 per day or $56 for the eight days that he was out of the use of his car; that the defendant was negligent in running into and damaging the plaintiff’s automobile in several particulars as alleged in the petition. Judgment was prayed against the defendant in the sum of $505.09. The defendant filed his answer in which he denied that he was liable to the plaintiff in any amount.
The case was tried before the judge without the intervention of a jury. The plaintiff’s testimony and the other evidence in his behalf tended to prove and substantiate his case as laid in his petition. At the conclusion of the testimony for the plaintiff the trial judge, on motion of counsel for defendant, granted a nonsuit. It appears from the record and statements of counsel in their briefs that the trial judge granted the nonsuit on the
“In an action to recover damages for injuries to an automobile from a collision, the measure of damages is ‘the difference between the value of the property before the damage and after-wards’ (Douglas v. Prescott, 31 Ga. App. 684 (1), 121 S. E. 689), but in a case where the owner has undertaken to make proper and necessary repairs, he may, in establishing such damage, include such proper and necessary expenses, provided such items are the direct and proximate result of the collision, and represent the reasonable value of such necessary material and labor, and provided the aggregate of these amounts, together with hire on the machine while rendered incapable of being used, and the value of any additional permanent impairment, does not exceed the value of the machine before the injury with interest thereon. [Citing].” Lamon v. Perry, 33 Ga. App. 248 (1) (125 S. E. 907). This ruling was quoted and followed in O’Donnelly v. Stapler, 34 Ga. App. 637 (5) (131 S. E. 91), and the following additional ruling in this respect was there made: “In the absence of a request for more specific instruction, a charge in general terms that the measure of damages is ‘the difference between the value of the property before the damage and afterwards’ would ordinarily be sufficient; but since, as in the instant case, the plaintiff alleged the several elements of his damage, and the amounts thereof, in accordance with the ruling quoted above, and these allegations were supported by the evidence, it was error to fail to instruct the jury upon the contentions of the plaintiff as made.”
The nonsuit in this case was granted on the ground that the plaintiff failed to allege and prove the correct measure of damage to his automobile, the difference between the value of the car before and after it was damaged, so as to entitle him to recover. The plaintiff alleged and proved that the value of his automobile before the damage was $875, that the reasonable and necessary cost expended by him for having the car repaired was $299.09, that the value of his car after it was repaired was $725, and
It is error to grant a nonsuit where the evidence would authorize a recovery for the plaintiff for any amount; and in passing on the question of whether or hot the court properly granted a nonsuit, the evidence must be taken most strongly in favor of the plaintiff. Pendleton Bros. v. Atlantic Lumber Co., 3 Ga. App. 714 (1) (60 S. E. 377); Yeager v. Weeks, 74 Ga. App. 84 (2) (39 S. E. 2d, 84); Jackson v. Thompson, 77 Ga. App. 367, 370 (48 S. E. 2d, 903); Hamilton v. Cooper, 149 Ga. 669 (101 S. E. 909); Code, § 110-310. A motion to nonsuit is in the nature of a general demurrer to the evidence and does not go to any defect in the pleadings, the only question being whether the evidence proves the-case as laid. Kelly v. Strouse, 116 Ga. 872(4) (43 S. E. 280); Reeves v. Jackson, 113 Ga. 182 (1, 2) (38 S. E. 314); Yeager v. Weeks and Jackson v. Thompson, supra. Under the evidence in this case it was error to grant a nonsuit.
It was not error for the trial judge to refuse to permit the plaintiff to show that the defendant was adjudged guilty in the traffic court of the City of Atlanta of the offense of driving his automobile while intoxicated at the time and place he ran into and damaged the plaintiff’s automobile. See
Pollard
v.
Harbin,
56
Ga. App.
172, 174 (192 S. E. 234);
Cottingham
v.
Weeks,
54
Ga.
275;
Tumlin
v.
Parrott,
82
Ga.
732 (2) (9 S. E. 718);
Seaboard Air-Line Ry.
v.
O’Quin,
124
Ga.
357 (52 S. E. 427);
Powell
v.
Wiley,
125
Ga.
823 (54 S. E. 732). This seems to be the correct rule in respect to the evidence that was rejected, instead of the ruling made in
Hardeman
v.
Ga. Power Co.,
42
Ga. App.
435 (156 S. E. 642), and
Douglas
v.
Central of Ga. Ry. Co.,
48
Ga. App.
427 (172 S. E. 828). “The rule supported by the great weight of authority is to the effect that a judgment of conviction or acquittal rendered in a criminal prosecution cannot be given in evidence in a purely civil action, to establish the truth of the facts on which it was rendered.” 31 A.L.R. 261, 262. Also, see 57 A.L.R. 504; 80 A.L.R. 1145; 130 A.L.R.
Judgment reversed.
Felton and Worrill, JJ., concur.