Bradley v. Godwin, No. 58244

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: UNDERWOOD; BANKE
• Citation: 152 Ga.App. 782,264 S.E.2d 262
• Docket Number: No. 58244
• Decision Date: 21 February 1980
• Parties: BRADLEY v. GODWIN.

Page 262

264 S.E.2d 262 152 Ga.App. 782 BRADLEY
v.
GODWIN. No. 58244. Court of Appeals of Georgia. Argued July 12, 1979.
Decided Nov. 30, 1979.
Rehearing Denied Dec. 14, 1979.
Certiorari Denied Feb. 21, 1980.

Page 263

[152 Ga.App. 790] Robert L. Goldstucker, Savannah, John Cromartie, Atlanta, Elizabeth Youngerman, Philip L. Merkel and Brian Rogal, Savannah, for appellant.

James McCallar, Jr., Savannah, for appellee.

[152 Ga.App. 782] UNDERWOOD, Judge.

This appeal was precipitated by the direction of a verdict for the landlord in this dispossessory proceeding he had instituted against his tenant (Code Ann. § 61-301 et seq.), claiming that she had failed to pay rent as she had agreed to do. Tenant answered and counterclaimed, asserting that landlord was responsible to her for failure to make certain repairs as he had agreed to do at the inception of the lease (Lewis & Co. v. Chisholm, 68 Ga. 40(3)), and also for his failure to make others not covered by the agreement but otherwise required. Code Ann. § 61-111, 112.

At trial landlord moved for directed verdict, contending that tenant was barred from recovery by her own contributory negligence, and that "all the evidence points to the fact that there is no damage in the case that can be (submitted) for consideration of the jury . . . ." The court, while rejecting the contributory negligence [152 Ga.App. 783] contention by ruling that such questions would be for the jury, was nevertheless concerned about the damages issue, asking in several instances: "What's the damage? * * * She hasn't stumbled and broken a leg, she hasn't had her clothes ruined by the rain. * * * What are the damages she sustained?"

"(W)ell, we don't know," replied landlord's counsel. "There has been no evidence of anything, any damages other than, if anything, diminution in the difference between the value of the rent that she should have been paying (because of the unrepaired state of the premises) and the rent that she was actually paying." Tenant's counsel agreed that this was, indeed, what

Page 264

her damages consisted of, adding in more than one instance that at least nominal damages would be recoverable in any event.

Nevertheless, the court indicated that a verdict would be directed against tenant on her counterclaim; and, landlord having thereupon waived his claim against her for rent, the court directed a general verdict in landlord's favor. This appeal followed; we reverse.

1. At trial tenant claimed that landlord had agreed to make certain repairs as a condition of the tenancy, and as an inducement to her to enter the tenancy. Landlord disagreed, contending that he had made no agreement for repairs. As the evidence was sharply conflicting as to that issue, the existence vel non of the agreement, absent a writing, should have been submitted to the jury for resolution. Frey v. Friendly Motors, 129 Ga.App. 636, 200 S.E.2d 467 (1973).

2. Tenant claims that in establishing as her damages the difference between the amount of rent she had agreed to pay and the rental value of the premises in their unrepaired state (Roberson v. Weaver, 145 Ga. 626 (6, 7), 89 S.E. 769 (1916), she had produced at trial the testimony of a witness that the rental value of the apartment in its unrepaired state was "$10 per month, if anything at all." However, we find from the record that the witness only said "$10, if anything at all," thus omitting the "per month." Whether the witness actually meant $10 "per month," "per week," "per square foot," or perhaps something else cannot be determined from the evidence.

While a different question might be presented were [152 Ga.App. 784] the evidence to show that tenant had suffered actual damage in some amount (Edgeman v. Thomas, 132 Ga.App. 866, 209 S.E.2d 658 (1974); Bendle v. Ortho Mattress, Inc., 133 Ga.App. 575, 579-81, 211 S.E.2d 618 (1974)), the only actual damage which could possibly be pointed to under the evidence here was the diminished value of the lease, as to which there was a fatal failure of proof. Consequently no error appears in directing the verdict so far as actual damage is concerned. Thomas v. Campbell, 126 Ga.App. 675, 191 S.E.2d 619 (1972); Hayes v. Flaum, 138 Ga.App. 787, 227 S.E.2d 512 (1976).

3. But tenant claims she was entitled to at least nominal damages and, for that reason, that it was error for the court to direct a verdict against her. We agree.

"In every case of breach of contract, the other party has a right to damages; but if there has been no actual damage, the plaintiff can recover nominal damages which will carry the costs." Code Ann. § 20-1409. Similar provisions are made for tort cases. Code Ann. §§ 105-2001, 105-2006.

Prior to the Civil Practice Act it was the rule that an allegation of general damages, or a general allegation of unspecified damages, was sufficient as a matter of pleading to allow recovery of nominal damages, a species of general damages. Hall v. Browning, 195 Ga. 423, 428(5b, c), 24 S.E.2d 392 (1943) (tort); Sutton v. Southern R. Co., 101 Ga. 776, 29 S.E. 53 (1897) (contract); Glenn v. Western Union Tel. Co., 1 Ga.App. 821, 831, 58 S.E. 83 (1907) (contract). There were, however, other rules as to pleading damages, the most notorious of which came into play in contract (or tort) cases where the petition sought only special (or special and punitive) damages. Under those circumstances the recovery was limited to those items so that an award of general or nominal damages was not allowed in the event the special damages were not recoverable. E. g., Hadden v. Southern Messenger Service, 135 Ga. 372, 374(3), 69 S.E. 480 (1910); Darlington Corp. v. Evans, 88 Ga.App. 84, 87, 76 S.E.2d 72 (1953); Wright v. Smith, 128 Ga. 432(3), 57 S.E. 684 (1907); Spindel v. Kirsch, 114 Ga.App. 520, 522, 151 S.E.2d 787 (1966). As stated in Beverly v. Observer Pub. Co., 88 Ga.App. 490(3), 77 S.E.2d 80, 81 (1953): "(w) here neither general nor nominal damages are sought and the special [152 Ga.App. 785] damages alleged are not recoverable, the plaintiff is not entitled to recover in any amount, although he would have been entitled to nominal or general damages had they been sought."

Page 265

In those instances where the plaintiff was entitled to recover nominal damages which had nevertheless been denied by the jury, reversal and new trial did not generally ensue merely for the...