Opinion
36479.
DECIDED MAY 17, 1957.
Tort; damage to truck. Before Judge Cobb. Clarke Superior Court. September 22, 1956.
Erwin, Nix, Birchmore Epting, for plaintiff in error.
O. J. Tolnas, Stow Andrews, contra.
1. "`Where, in ruling upon demurrers, the trial court allows time for the filing of an amendment, such court shall render a judgment on the sufficiency of the pleadings after the expiration of the time allowed for amendment which shall supersede the earlier judgment on the demurrers, and such earlier judgment or judgments shall not be subject to exception or review.' Weinstein v. Rothberg, 87 Ga. App. 94 (1) ( 73 S.E.2d 106); Sellers v. City of Summerville, 88 Ga. App. 109 ( 76 S.E.2d 99); Aiken v. State Farm Mutual c. Ins. Co., 88 Ga. App. 131 ( 76 S.E.2d 141)." Godwin v. Hudson, 93 Ga. App. 858 ( 93 S.E.2d 379). The first assignment of error contained in the bill of exceptions comes within the foregoing rule and will not be considered.
2. In an action for negligent injury of a motor vehicle, damages which are remote and speculative are not recoverable, and such damages are irrelevant, immaterial, and not germane in such an action, and upon timely written special demurrer should be stricken.
DECIDED MAY 17, 1957.
On August 23, 1955, H. L. Craven brought an action against Georgia Grain Growers Association, Inc., to recover damages to his truck allegedly caused by the defendant. The defendant did not demur generally to the petition, but certain of its special demurrers were overruled and certain others were sustained with a time allowed by the trial court within which to amend.
Within the time allowed the plaintiff amended, and the material allegations of his petition as finally amended are substantially as follows: On July 18, 1955, the plaintiff was the owner and operator of a 1954 Chevrolet truck, model No. 6500. On that date, this truck was loaded with approximately 400 bushels of shelled corn and was at the defendant's place of business for the purpose of being unloaded. The defendant undertook to unload the truck and placed the front wheels of the truck on a platform to which cables were attached for the purpose of lifting the front end of the truck from the ground so as to tilt the truck and cause the corn to slide out of the truck into the defendant's containers. After the truck was placed on the platform and the front end was lifted approximately six feet from the ground, a clamp holding one of the cables on one side of the platform gave way and the plaintiff's truck fell to the ground with great force and violence. As a result, the defendant's truck was damaged in enumerated particulars. At the time the plaintiff's truck was damaged, the defendant had custody, possession, and exclusive control over the lifting of the truck and was in complete supervision of unloading the truck. The defendant was negligent in the following particulars: (a) In operating the lifting platform in a manner so as to damage the plaintiff's property; (b) In failing to have the lifting cables securely attached to the lifting mechanism so as to avoid dropping the truck to the ground; (c) In failing to operate the lifting mechanism properly so as to protect the plaintiff's truck from damage and injury; (d) In maintaining and operating lifting machinery that was mechanically unsafe and unfit for the purpose for which it was being used. The plaintiff was without fault in causing the damage and he could not have avoided the damage to his truck by the exercise of ordinary care, but the defendant could have avoided damaging the plaintiff's truck by the exercise of ordinary care. Immediately before his truck was damaged by the defendant, it had a reasonable market value of $5,500, and immediately after the damage sustained, it had a reasonable market value of $2,000. Prior to the damage to his truck, the plaintiff was engaged in the transportation business and carried one load each week to Detroit, Michigan, for W. C. Allen, of Jasper, Georgia, and was guaranteed by Allen and earned $320 per trip. The plaintiff was in the employ of Allen for the purpose of hauling materials, wares, goods, agricultural products and merchandise. This employment was a continuing one, and the plaintiff had a net income from Allen of $200 per week. As the result of the damage to his truck on July 18, 1955, the plaintiff has been unable to continue in his employment since that date, and has, therefore, been damaged by the defendant in the sum of $1,000 up to August 22, 1955, and will be damaged in the sum of $200 per week for as long as he is deprived of the use of his truck in his employment. Immediately after his truck was damaged and made useless by the defendant's negligence, the plaintiff demanded of the defendant's authorized agent that the defendant replace his truck with a truck of like value, or in the alternative that the defendant repair and restore the truck to as good a condition as it was in before it was damaged. Immediately after his truck was damaged, the defendant instructed the plaintiff to take the truck to Danielsville, Georgia, and to deliver it to its main agent for the purpose of being repaired. Pursuant to these instructions, the truck was delivered to the defendant's agent in whose possession the truck has been since that time and no effort has been made by the defendant to repair the truck, and the plaintiff has been deprived of the use of his truck since July 18, 1955. The defendant has failed and refused to replace the truck, or to repair it as demanded. Since July 18, 1955, the defendant has been unable to work and earn a livelihood because he has been deprived of the use of his truck by the negligent acts of the defendant. The plaintiff is entitled to recover from the defendant the sum of $3,500 as damage to his truck, and $200 per week from July 18, 1955 until the final disposition of this case. All of the plaintiff's enumerated damage was directly and proximately caused by the negligent acts of the defendant.
Following the plaintiff's amendment, the defendant renewed six of its original special demurrers and added two additional special demurrers, all of which were overruled by the trial court, and the defendant assigns error here upon that judgment.
In its answer, the defendant made the following admissions: that the plaintiff's truck was at its place of business for the purpose of unloading corn on July 18, 1955; that at the time the plaintiff's truck was damaged, the defendant had custody, possession, and exclusive control of the lifting of the plaintiff's truck, had exclusive control of the lifting platform, and was in complete supervision of unloading the truck; and, that the plaintiff was without fault and could not have avoided the damage to his truck by the exercise of ordinary care.
The defendant alleged further in his answer that after the plaintiff's truck had fallen from the defendant's hoist on July 18, 1955, the defendant's manager advised the plaintiff that a named person in Danielsville, Georgia, was qualified to make the repairs to the truck necessary to place it in as good condition as it was prior to the damage sustained. The plaintiff then drove his truck to the garage of the person named and that person advised the plaintiff that he could repair the truck and place it in as good condition as it was prior to the accident by effecting certain enumerated repairs. The plaintiff refused to allow this person to repair the truck, insisting that he install a new frame and other parts not necessary to place the truck in as good condition as it had been prior to its being damaged. The repairs which the named garageman proposed to make to the truck in order to place it in as good condition as it was prior to its damage would have cost a total of $270.20, but the repairs demanded by the plaintiff would have cost a great deal more. The plaintiff has left his truck at this garage since July 18, 1955, of his own free will, and has made no effort to have the truck repaired by the named garageman, or anyone else, and has made no effort to sell the truck or to purchase another truck to replace it. The defendant pays into the court the sum of $270.20, which is the reasonable cost of making all necessary repairs to the truck and prays that it be discharged without cost. It is alleged further that the difference in the market value of the plaintiff's truck before and after it was damaged is $270.20.
On the trial of the case, the jury returned a verdict for the plaintiff in the amount of $1,750.
The defendant's motion for new trial, based on the usual general grounds and six special grounds, was denied and it has appealed to this court for review. Error is assigned upon the overruling of the original demurrers, its renewed demurrers, and its motion for new trial.
1. Headnote 1 is self-explanatory and requires no elaboration.
2. Following the plaintiff's amendment to his petition the defendant renewed certain of its special demurrers, some of which were sustained while others were overruled. The seven special demurrers which were overruled each bear generally upon the same subject of damages, and these demurrers will be treated here together. These demurrers were lodged against paragraphs 13, 14, 15, 20 and 21 of the petition as amended and each of the demurrers contends that the allegations contained in these paragraphs are not germane to any issue raised by the petition and are irrelevant, immaterial, and should be stricken, and that these damages are too uncertain, remote and speculative to be recovered.
In paragraph 13 of the plaintiff's petition it is alleged that prior to the damage to his truck, the plaintiff was engaged in the hauling and transportation business and made one load each week to Detroit, Michigan, for W. C. Allen, of Jasper, Georgia, and was guaranteed by Allen and earned $320 per trip.
In paragraph 14 it is alleged that the plaintiff was in the employ of Allen for the purpose of hauling materials, wares, goods, agricultural products and other merchandise; that this employment was a continuing one and the plaintiff by the use of his truck had a net income from Allen of $200 per week.
In paragraph 15 it is alleged that as a result of the damage to his truck by the defendant's negligence on July 18, 1955, the plaintiff has been unable to continue in his employment since that date and has been damaged by the defendant's acts of negligence in the sum of $1,000 up to August 22, 1955, and he will be damaged in the sum of $200 per week for as long as he is deprived of the use of his truck by the defendant.
In paragraph 20 it is alleged that since July 18, 1955, the plaintiff has been unable to work and earn a livelihood because he has been deprived of the use of his truck by the negligent acts of the defendant.
In paragraph 21 it is alleged that the plaintiff is entitled to recover the sum of $3,500 as damage to his truck and $200 per week from July 18, 1955, until the final determination of his suit.
In a case where a petition is unnecessarily voluminous or contains redundant, superfluous, or irrelevant matter, its defects in these respects may and should be raised by appropriate and timely special demurrers. South Carolina Ga. R. Co. v. Augusta Southern R. Co., 111 Ga. 420 (1) ( 36 S.E. 593).
The measure of damages in an action to recover for injuries to a motor vehicle caused by a collision or other negligence of a defendant is the difference between the value of the vehicle before and after the collision or other negligence, but where the owner has undertaken to make proper and necessary repairs he may establish his loss in respect to the collision or other negligence by showing the reasonable value of labor and material used for the repairs, and the value of any permanent impairment after the vehicle was repaired, provided the aggregate of these amounts, together with hire on the vehicle while incapable of being used, does not exceed the value of the vehicle before injury with interest thereon. Padgett v. Williams, 82 Ga. App. 509 (1), 511 ( 61 S.E.2d 676), and citations.
"`Direct damages are such as follow immediately upon the act done. Consequential damages are such as are the necessary and connected effect of the tortious act, though to some extent dependent upon other circumstances.' Code § 105-2007. `If the damages are only the imaginary or possible result of the tortious act, or other and contingent circumstances preponderate largely in causing the injurious effect, such damages are too remote to be the basis of recovery against the wrongdoer.' § 105-2008. `Damages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be recovered; but damages traceable to the act, but not its legal or natural consequence, are too remote and contingent.' § 105-2009. `It may be stated as a general rule that in tort actions a recovery may be had for loss of profits, provided their loss is the proximate result of the defendant's wrong and they can be shown with reasonable certainty. The profits recoverable in such cases are limited to probable, as distinguished from possible benefits. They must be such as would be expected to follow naturally the wrongful act and be certain both in their nature and the cause from which they proceed. Profits which are remote, or speculative, contingent or uncertain are not recoverable, as, for example, the prospective profits of a contract between the plaintiff and a third person of which the defendant had no notice.' 15 Am. Jur., Damages, § 155. `A plaintiff who seeks reparation in damages to his business, from a breach of contract, is limited to the recovery of damages which are the natural and material consequence of the act from which the damage flows. Loss of prospective profits is ordinarily too remote for recovery. The profits of a commercial business are dependent on so many hazards and chances, that unless the anticipated profits are capable of ascertainment, and the loss of them traceable directly to the defendant's wrongful act, they are too speculative to afford a basis for the computation of damages.' Cooper v. National Fertilizer Co., 132 Ga. 529, 535 ( 64 S.E. 650). `The general rule is that the expected profits of a commercial business are too uncertain, speculative, and remote to permit a recovery for their loss.' Palmer v. Atlantic Ice Coal Corp., 178 Ga. 405 (2) ( 173 S.E. 424, 92 A.L.R. 176). Also, see 15 Am. Jur., Damages, § 157." Norris v. Pig'n Whistle Sandwich Shop, 79 Ga. App. 369 ( 53 S.E.2d 718); Atlanta-Asheville Motor Express v. Dooley, 78 Ga. App. 265, 271 ( 50 S.E.2d 822); Tovell v. Legum, 207 Ga. 193, 197 ( 60 S.E.2d 339), and citations.
Under an application of the foregoing facts to the foregoing rules, the trial court erred in overruling the defendant's special demurrers to the plaintiff's petition, which rendered all further proceedings nugatory.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.