6 S.E.2d 80 | Ga. Ct. App. | 1939
1. In an action for damages on account of illegal seizure of an automobile under a claim of right, it was error for the court to give in charge to the jury the provisions of the Code, § 105-2003, as to damages in torts where the entire injury is to the peace, happiness, and feelings of the plaintiff.
2. In the absence of evidence showing some amount of loss, it was error to charge the jury that they could find damages by reason of the loss of the use of the automobile.
The defendant filed an answer denying nearly all of the allegations of the petition, and alleging that the automobile was purchased by the plaintiff from Lowe Motor Company under a conditional-sale contract which Lowe sold and assigned to the defendant; that the contract provided that on default in the payments prescribed therein the defendant would have the right to repossess the automobile and resell it for the purpose of crediting the proceeds on the outstanding balance of said contract; that on or about April 10, 1937, the contract was in default, and the full outstanding balance of $76 was due and payable because the plaintiff had failed to pay the monthly instalment of $19 due on the contract on March 9; that because of such default the defendant repossessed *134 the automobile for the purpose of reselling it, but on account of the plaintiff's objections did not resell it but returned it to him, and that thereafter the balance on the contract was paid to the defendant by C. E. Lowe. The jury found for the plaintiff in the sum of $600. The defendant moved for a new trial on the general grounds and on several special grounds. The motion for new trial was overruled and the defendant excepted.
1. In the first special ground of the motion the defendant alleges that the court erred in giving in charge to the jury the Code, § 105-2003, which reads as follows: "In some torts the entire injury is to the peace, happiness, or feelings of the plaintiff; in such cases no measure of damages can be prescribed, except the enlightened conscience of impartial jurors. The worldly circumstances of the parties, the amount of bad faith in the transaction, and all the attendant facts should be weighed. The verdict of a jury in such a case should not be disturbed, unless the court should suspect bias or prejudice from its excess or its inadequacy." The complaint of this instruction is that it was materially harmful, was not applicable, and was not warranted by the pleadings or evidence for the reason that this was not a case where the entire injury sued for was to the peace, happiness or feelings of the plaintiff; that the suit was to recover the value of a certain automobile and damages for being deprived of its use. It may be noted that the court in another part of the charge stated: "The plaintiff in order to recover damages for wounded feelings need not prove any amount, or swear to any amount, though he must prove that he is entitled to that class of damages. The enlightened conscience of the jury is the guide the law prescribes in such cases. The jury can give such damages as the circumstances of each case require, if such circumstances in their opinion require any damages at all." Under the decision of this court in Hooks v. Sanford,
2. The charges complained of in the second and third grounds of the motion for new trial authorizing the jury to find for the plaintiff a sum equal to the loss sustained by the plaintiff from not having the use of his car are subject to the objection that there was no evidence whatever which would enable the jury to estimate the amount lost by the plaintiff in this way.
The court erred in not granting a new trial.
Judgment reversed. Sutton and Felton, JJ., concur.