Lamon v. Perry
| Decision Date | 15 December 1924 |
| Docket Number | 15531. |
| Citation | 125 S.E. 907,33 Ga.App. 248 |
| Parties | LAMON v. PERRY. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
In an action to recover damages for injuries to an automobile resulting from a collision, the measure of damages is "the difference between the value of the property before the damage and afterwards" (Douglas v Prescott, 31 Ga.App. 684 [1], 121 S.E. 689); but in a case where the owner has undertaken to make proper and necessary repairs, in establishing such damage he may include such proper and necessary expenses, provided such items are the direct and proximate result of the collision, and represent the reasonable value of such necessary material and labor, and provided the aggregate of these amounts, together with hire on the machine while rendered incapable of being used, and the value of any additional permanent impairment does not exceed the value of the machine before the injury with interest thereon. Civil Code 1910, § 4505; Savannah Electric Co. v. Crawford, 130 Ga. 421 (2), 60 S.E. 1056; Telfair County v. Webb, 119 Ga. 916, 47 S.E. 218; So. Ry. Co. v. Stearns, 8 Ga.App. 111, 112, 68 S.E 623; 17 Corpus Juris, 877, § 183, and notes. In a case where the rule of comparative negligence or diminution of damages may be applicable under the issues raised, the amount found under the rule stated may be reduced, accordingly as the jury may apply such rule of diminution. Proof of value may be shown by the testimony of experts, or by other testimony as to the nature of the injuries sustained, and as to the material and labor supplied; and testimony as to the actual cost is admissible, such cost being a circumstance which may be considered by the jury in determining such value, under their right to weigh all the facts and circumstances bearing upon that question, and to form their own judgment on the data in evidence, without being absolutely bound by the opinion of witnesses. So. Ry. Co. v. Williams, 113 Ga. 335 (1), 336, 38 S.E. 744; Martin v. Martin, 135 Ga. 162, 68 S.E. 1095; Baker v. Richmond City Mills Works, 105 Ga. 225, 31 S.E. 426; Jennings v Stripling, 127 Ga. 778, 784, 56 S.E. 1026; Great American Fire Ass'n v. Jenkins, 11 Ga.App. 784 (5), 787, 76 S.E. 159. But "the cost of an article" or the amount paid for service "is not the criterion of its value" (So. Ry. Co. v. Williams, supra), and "without more is not sufficient proof" to authorize a verdict. Watson v. Loughran, 112 Ga. 838 (3), 841, 38 S.E. 82; Allen v. Harris, 113 Ga. 107 (4), 109, 38 S.E. 322. However, if the nature of the injury, the character of the services rendered, and the amount paid therefor are proved, but there is a mere omission on the part of a witness to say that he thinks the amount was reasonable, it cannot be said that there is nothing on which the jury may base a verdict, since they "are not bound by the opinion evidence, but may put their own estimate upon the value of the services in view of their nature and character, and the attendant circumstances." Ga. Ry. & Elec. Co. v. Tompkins, 138 Ga. 596 (8), 603, 75 S.E. 664, 667. Under these rules it might possibly be said that the verdict with respect to the amount of damages was not altogether unauthorized. Although the testimony relied upon as to the amounts actually expended for material and repairs was somewhat vague and speculative, no exception to its admission for such purpose was taken and preserved. See Bull v. Carpenter, 32 Ga.App. 637, 124 S.E. 381, 382.
"A chose in action arising from a tort is assignable where it involves, directly, a right of property." Where there has been a complete legal assignment of such a chose in action, the assignee may institute and maintain an action against the defendant tort-feasor for the entire damage sustained, and the assignor "is not a proper party plaintiff to the suit." Sullivan v. Curling, 149 Ga. 96 (1), 99 S.E. 533, 5 A.L.R. 124. But where there is only a partial assignment of the chose in action and damages resulting from a tort, as by an insured to an insurance company, whose payment of a policy covers only part of the loss, and especially where there has been no proper legal assignment, "the tendency of the courts is to hold that the action must be brought in the name of the insured, and that the insurer is not a necessary or proper party." Atlanta Cadillac Co. v. Manley, 29 Ga.App. 522 (2), 523, 116 S.E. 35, and cases cited.
(a) "Under our Code of 1882, § 2244 [Civil Code of 1910, § 3653], all choses in action are assignable, but as construed by the decisions * * * the assignment must not rest in parol, but must be in writing." Hartford Fire Ins. Co. v. Amos, 98 Ga. 533, 534 (1), 25 S.E. 575; Foster v. Sutlive, 110 Ga. 297 (1), 34 S.E. 1037. The writing renders it an assignment at law, and while one who takes a chose in action by oral assignment under facts and circumstances rendering it valid as an equitable transfer has the rights of an equitable owner under what is termed an equitable assignment, a written assignment at law is necessary to entitle the owner to sue in a direct action at law in his own name. Benson v. Abbott, 95 Ga. 69, 72, 22 S.E. 127; Fla. Coca-Cola Bottling Co. v. Ricker, 136 Ga. 411, 417, 71 S.E. 734; Few v. Pou, 32 Ga.App. 620, 124 S.E. 372.
(b) While it is true that where irrelevant evidence is admitted over objection, such admission "is not cause for a new trial, unless a valid objection to its admission is made," and the statement of one or more specific grounds of objection is a waiver of other grounds (So. Pine Co. v. Smith, 113 Ga. 629 [3], 633, 38 S.E. 960; Cox v. Cody, 75 Ga. 175 [1a]; Goodtitle v. Roe, 20 Ga. 140 [4]; Waxelbaum v. Berry, 99 Ga. 280, 25 S.E. 775; Pearson v. Forsyth, 61 Ga. 537 [1]); the rule is not the same where the testimony has been excluded, but in such a case, "if testimony was properly rejected, the ruling of the court will be sustained, although he may have given an insufficient, or even a wrong reason therefor." Smith v. Page, 72 Ga. 539, 544; Barksdale v. Security Investment Co., 120 Ga. 388 (4), 395, 396, 47 S.E. 943.
(c) The question asked by the defendant of the plaintiff as to whether she had assigned "her claim against the defendant for damages to her automobile" to a named insurance company was, therefore, not objectionable for the reason urged, to wit, that...
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