Todd v. Hodges, 152 Ga. App. 346

152 Ga. App. 346 | Ga. Ct. App. | 1979

Shulman, Judge.

Default judgment was entered in favor of plaintiff-appellant in a trover action seeking the return of a tar kettle and hire and profit. This appeal follows the ensuing trial on damages wherein the trial court directed the verdict in favor of appellee-defendant. We affirm.

1. In seeking to establish value as to the converted property’s hire, appellant testified as to damages based in part on an unaccepted offer to rent the tar kettle and on a telephone conversation concerning rental rates (the details of which were not disclosed). We conclude that this testimony failed to establish damages.

While opinion as to value may rest partly upon an unaccepted offer, the opinion testimony in this case shows no facts demonstrating that the witness has had an opportunity of forming a correct opinion. Compare State Hwy. Dept. v. Parker, 114 Ga. App. 270 (2b) (150 SE2d 875), with Gibbs v. Clay, 137 Ga. App. 381 (1) (224 SE2d 46). This being so, regardless of the trial court’s reason for directing the verdict, a directed verdict was properly entered on the ground that damages were not established. Turk v. Jackson EMC, 117 Ga. App. 631 (161 SE2d 430). As to damages, see Downs v. Berryman, 24 Ga. App. 170 (2) (100 SE 226); Ambort v. Tarica, 151 Ga. App. 97.

Submitted September 6,1979 — Decided November 15, 1979. John E. Pirkle, for appellant. J. Noel Osteen, for appellee.

2. Appellant made no motion to reopen the case. We refuse to hold that the court erred in failing to reopen the case sua sponte. Cf. Callahan v. Atlantic Ice & Coal Corp., 33 Ga. App. 330 (2) (126 SE 278).

Judgment affirmed.

Deen, C. J., and Carley, J., concur.