Mercer v. J & M Transp. Co., 38688

• Decision Date: 09 February 1961
• Docket Number: No. 1,No. 38688,38688,1
• Citation: 118 S.E.2d 716,103 Ga.App. 141
• Parties: W. G. MERCER v. J & M TRANSPORTATION CO., Inc
• Court: Georgia Court of Appeals

Page 716

118 S.E.2d 716

103 Ga.App. 141

W. G. MERCER v. J & M TRANSPORTATION CO., Inc.

No. 38688.

Court of Appeals of Georgia, Division No. 1.

Feb. 9, 1961.

Syllabus by the Court.

1. Since the defendant would have had the right to contest the amount of unliquidated damages, and the amount of damages was the only issue submitted to the jury, it was not harmful error, even if it was error, for the court to overrule motions to strike the defendant's answer because it was not filed in time and the alleged default was not properly opened.

2. Under the pleadings and evidence in this case it was not error for the court to refuse to charge the jury as requested that the measure of damages to a house, which had to be completely rebuilt in order to be restored, was the cost of repair or restoration.

3. The request to charge was a single, entire request, and since part of it was defective, as shown in the preceding headnote, the court did not err in refusing the entire request.

W. G. Mercer sued J & M Transportation Co., Inc., to recover damages which the plaintiff allegedly sustained when a residence which he owned in Dawson, Georgia, was struck by the defendant's truck when, due to the negligence of its driver, it swerved from the street and ran into the side of the residence, striking it with such force as to render it worthless as a residence. The original petition alleged that the market value of the house was $16,000 immediately before it was damaged and that after it was damaged it had no market value. By amendment the petition was made to also allege that the cost of restoring said dwelling house to the condition in which it was before being damaged was $16,000. The defendant denied the allegations of the petition. The jury found for the plaintiff in the sum of $6,312. The plaintiff excepts to the overruling of his motion to strike the defendant's answer on the grounds that it was filed too late and that it was filed when the case was in default without a legal opening of the default. He also excepts to the overruling of a second motion to dismiss the answer the basis of which, as ruled by the court, was that the plaintiff had waived the alleged illegal filing of the answer. By agreement liability of the defendant was admitted and it was agreed that the amount of liability was the only issue to be submitted to the jury. The plaintiff's motion for a new trial was overruled and he also excepts to that judgment.

R. R. Jones, Dawson, for plaintiff in error.

Smith & Undercofler, Hiram K. Undercofler, Americus, for defendant in error.

FELTON, Chief Judge.

1. Assuming for the sake of argument that the court erred in not dismissing the defendant's answer, which we do not consider or decide, no harm is shown since only the question of ascertaining the damages which were unliquidated at the time of trial was submitted to and decided by the jury, and the defendant had a right to introduce evidence on this question and to move for a new trial and to except as in other cases. Ben Hyman & Co. v. Solow, 101 Ga.App. 249, 113 S.E. 489.

2. The special ground of the amended motion for a new trial complains that the court erred in refusing to give in charge a proper request that the measure of damages would be whatever amount it would take to put the house in the condition it was in before the damage. This part of the ground is without merit. 'Damages are given as compensation for the injury done * * *.' Code § 105-2001. 'As a general rule the measure of damages in actions for injuries to real property is the difference in value before and after the injury to the premises.' Georgia Railroad &...