Bradley v. Godwin

Decision Date21 February 1980
Docket NumberNo. 58244,58244
Citation152 Ga.App. 782,264 S.E.2d 262
PartiesBRADLEY v. GODWIN.
CourtGeorgia Court of Appeals

Robert L. Goldstucker, Savannah, John Cromartie, Atlanta, Elizabeth Youngerman, Philip L. Merkel and Brian Rogal, Savannah, for appellant.

James McCallar, Jr., Savannah, for appellee.

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 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 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 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 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."

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 recovery of the nominal damages, at least in contract cases. As stated in Eiswald v. Southern Express Co., 60 Ga. 496, 497, 498 (1878): "(i)n actions of tort, or in some of them, because the mere branding of the defendant's act as a wrong may be of future consequence to the plaintiff in the matter of upholding the right involved (as where defendant backs water onto plaintiff's land, Jones v. Water Lot Co., 18 Ga. 539 (1855), thus providing a spawning ground for claims of prescriptive rights, Hendrick v. Cook, 4 Ga. 241, 262-265 (1948)), a new trial will be granted on the disallowance of nominal damages where such damages ought to have been found; but this strictness does not prevail in cases of contract, the same reason not applying. 1

"At all events, in this class of cases (contract cases where nominal damages denied by verdict) a reviewing court will not constrain the primary court to grant a new trial in order that mere nominal damages may be recovered."

But there is no doubt that reversal and new trial were required when the failure to award nominal damages was attributable not to verdict of the finder of fact but to the court, as where the jury was charged in effect that not even nominal damages could be awarded unless actual damage was established by the evidence. Ellington v. Bennett, 59 Ga. 286 (1877). And this rule prohibiting the court from withdrawing the issue from the jury when properly pleaded was applicable to both tort actions (Jeter v. Davis, 33 Ga.App. 733, 734(3), 127 S.E. 898 (1925) (personal injury)) and contract cases, even though it appeared that no damages were recoverable other than the nominal damages. Roberts v. Glass, 112 Ga. 456, 37 S.E. 704, 704 (1900) (reversal of order sustaining general demurrer, "even though (plaintiff) was working at a loss when the defendant prevented him from (completing the work contracted for)"); Addington v. Western & A. R. Co., 93 Ga. 566, 568, 20 S.E. 71, 72 (1894), where it was held: "We do not think it so clearly appeared that (plaintiff) was not entitled to at least nominal damages (for breach of the contract) as to authorize the court to direct a verdict against him. . . . (The jury) would have been authorized by the evidence, . . . to find that there was a breach of the contract, and this would have entitled the plaintiff to nominal damages. While the evidence does not seem to afford any basis for the computation of other and further damages, we think it was error, under the circumstances, for the court to direct a verdict. As the jury might have found the plaintiff was entitled to nominal damages, the court had no right to deprive him of his right to recover them. Had the case been submitted to the jury and they had found against the plaintiff generally, it would have been proper to allow the verdict to stand; and even if it plainly appeared that he was entitled to nominal damages only, and the court had refused a new trial, we would not reverse the trial court because of such refusal, it having been repeatedly ruled by this court that a new trial will not be ordered simply to allow a plaintiff an opportunity to recover merely nominal damages. We are not, however, aware of any precedent authorizing the trial court to deprive a plaintiff of his right, in the first instance, to recover such damages. To so hold would put it within the power of trial judges to prevent, in any case, a recovery of nominal damages, and thus render the law authorizing the recovery of such damages practically inoperative." Accord, Kenny v. Collier, 79 Ga. 743(1), 8 S.E. 58 (1887); Nicholson v. Williamson, 29 Ga.App. 692, 116 S.E. 321 (1922).

While after the advent of the Civil Practice Act this court in at...

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