8 Ga. App. 168
Ga. Ct. App.
1910

Lead Opinion

Russell, J.

This caso lias previously been before this court, and is reported in 1 Ga. App. 831. At that time the judgment of *169the lower court, sustaining a general demurrer to the plaintiffs petition, was reversed, and the case remanded for trial. TJpon the trial the jury returned a verdict in favor of the plaintiff for $250. The defendant’s motion for a new trial was overruled, and it excepts to that judgment. The plaintiff in the court below offered certain amendments, which the court refused to allow, and certain testimony which was repelled; and, by a cross-bill of exceptions, she complains of these, rulings. It is not necessary' for us to rule upon the cross-bill of exceptions, but we will say, in passing, that we thought the amendment should have been allowed and some of the excluded testimony should have been admitted.

The controlling question is raised by the fiiain bill of exceptions. There are various grounds in the motion for a new trial, but the only real point raised is that the verdict for $250 in favor of the jdaintiff can not be sustained, because the court restricted the plaintiff to the recovery of nominal damages only, and because $250 is too excessive an amount to be 'included within the term “nominal damages.” We held in the case of Batson v. Higginbothem, 7 Ga. App. 835 ((68 S. E. 455), that $380 was too large an amount to be denominated as “nominal damages;” but- the circumstances of that case were materially different from those in the case at bar. In Milledgeville Water Co. v. Fowler, 129 Ga. 111 (58 S. E. 643), a verdict in favor of the plaintiff for $150 was set aside; but, as pointed out by Justice Beck in that case, there is a wide difference between the mere breach of a contract, and a tort in the commission of which a public duty or a private obligation arising from the duty is violated. We are aware that'the general definition of nominal damages, as given by Bouvier, Angelí, and Black, is that it is such a trivial sum as is awarded where a breach of duty or an. infraction of the plaintiffs right is shown, but no serious loss is proved. It is defined in our own code, however, as such a sum as “will carry the costs.” Civil Code, § 3801. Thus a minimum is fixed, but no maximum. We think the proper rule for determining what is a recovery of nominal damages, when application is made to the court to set aside a verdict on the ground that the amount is too excessive to be called nominal damages, is to be found in the case of Sellers v. Mann, 113 Ga. 643 (39 S. E. 11), where. Justice Lewis says: “The term ‘nominal damages/ like ‘ exemplary damages/ is purely relative, and carries with it no *170suggestion of certainty as to amount. This is shown by the definition given the expression in the recognized authorities. In 2 Bouvier's L. Diet. 504, it is defined as ‘a trifling sum awarded where a breach of duty or an infraction of the plaintiff's right is shown, but no serious loss is proved to have been sustained.' Nominal damages have also been described as a ‘trivial sum awarded where a mere breach of duty or infraction of right is shown, with no serious loss sustained.' Anderson's L. Diet. 307. It is apparent that this ‘trivial sum' might, according to the circumstances of each particular case, vary almost indefinitely. In some cases a very small amount might constitute the trivial sum contemplated by the term ‘nominal damages;' in others a much larger amount might measure down to the same standard of triviality. It would depend largely upon the vastness of the amount involved what sum would be considered trivial."

It must also be remembered that the verdicts of juries are not to be interfered with in any case, unless there is something to justify the suspicion of prejudice or bias as affecting the verdict rendered. And, while nominal damages are not strictly compensatory, they are always included in general damages; and it is recognized that there is 'a class of cases in which the damages can not be adequately and definitely estimated, and yet, for the infraction of the plaintiff’s right or the violation of a duty by the defendant, there is a right of recovery, on the principle that wherever there is a right there is a remedy. This principle is recognized by the text-writers; and in support of the proposition the case of City of Greensboro v. McGibbony, 93 Ga. 672 (20 S. E. 37), is cited. In that case the court held that the plaintiff was entitled to recover nominal -damages, in the absence of any proof as to the value of the lost time for which he sued, and even though such time was worth nothing. We have taken the pains to examine the original record in that case, and we find that the amount referred to by the court as “nominal damages” was exactly the same as that awarded by the jury in this case, to wit, $250.

Judgment affirmed.





Dissenting Opinion

Powell, J.,

dissenting. I. can not get my mind to the point of agreeing that in a case like the one before us a recovery of $250 can be held to be nominal in amount.