Hayes v. Flaum

• Decision Date: 26 May 1976
• Docket Number: No. 52024,No. 1,52024,1
• Citation: Hayes v. Flaum, 138 Ga.App. 787, 227 S.E.2d 512 (Ga. App. 1976)
• Court: Georgia Court of Appeals
• Parties: D. L. HAYES et al. v. M. N. FLAUM et al

Page 512

227 S.E.2d 512

138 Ga.App. 787

D. L. HAYES et al. v. M. N. FLAUM et al.

No. 52024.

Court of Appeals of Georgia, Division No. 1.

May 26, 1976.

Hugh R. Powell, Jr., Doraville, for appellants.

Thomas Henry Nickerson, Atlanta, for appellees.

CLARK, Judge.

'I think you have an impossible burden in the case' was the comment of the trial judge as he ruled adversely to the plaintiff (now appellant) in sustaining the motion for a directed verdict in behalf of defendants. His reference was to the problems confronting a tenant-partnership which had operated a men's clothing retail store in seeking to establish by legal evidence their claim agaisnt the landlord for damages to their fixtures, supplies, and inventory caused by mildew and dampness in the leased premises. This alleged defect in the premises had begun approximately two years prior to the date upon which tenants abandoned the leased store which they alleged became untenantable by reason of progressive deterioration. This factor of time was mentioned by the trial judge as one of plaintiffs' problems in establishing an actual date of the occurrence, but we do not deal with this as the court's decision was stated to be based on the inability of the plaintiffs to establish their loss with sufficient certainty. As the trial judge expressed it: 'If I were trying this case without a jury I don't know how I would determine what the plaintiffs' loss actually was. It's true he depicts some figure between zero and twenty-something thousand dollars. But, what would it be based on? . . . I think the case has fallen short on the question of proof of value of the property.'

Our review of the trial transcript confirms the views expressed by the tribunal below. 'The question of damages cannot be left to speculation, conjecture and guesswork.' Development Corp. of Ga. v. Berndt, 131 Ga.App. 277, 278, 205 S.E.2d 868, 870. Where a party sues for damages he has the burden of proof of showing the amount of loss in a manner in which the jury or the trial judge in non-jury cases can calculate the amount of the loss with a reasonable degree of certainty. Studebaker Corp. v. Nail, 82 Ga.App. 779, 785, 62 S.E.2d 198; Williams & Templeton v. Brewer, 93 Ga.App. 603(1), 92 S.E.2d 586; Big Builder, Inc. v. Evans, 126 Ga.App. 457, 458(2), 191 S.E.2d 290; Taylor v. Roberson, 127 Ga.App. 24, 192 S.E.2d 384. See also Tri-State Systems, Inc. v. Village Outlet Stores, Inc., 135 Ga.App. 81, 85, 217 S.E.2d 399 and the quotation therein with approval of Central Coal & Coke Co. v. Hartman, 111 F. 96, 98 (8th Cir. 1901).

In part plaintiff-tenant relied upon the purchase price or cost of some items that were damaged. But this is...