Perkins v. Beatles

211 S.E.2d 920, 133 Ga. App. 671, 1975 Ga. App. LEXIS 2235

• Court: Court of Appeals of Georgia
• Decided: January 7, 1975
• Docket: 49825
• Status: Published

Opinions

Webb, Judge.

Peggy Beatles brought suit against Vernon Perkins, d/b/a Main & Lakewood Shell, alleging that plaintiff drove her automobile into defendant’s service station to obtain gasoline and services; that the attendant, after adding a quart of oil to the engine, failed to replace the oil cap; that a short time later the engine began smoking heavily and making various noises, whereupon plaintiff discovered that oil had escaped onto the engine due to failure to cap the oil tank; that plaintiff telephoned defendant’s service station to report the trouble, and after a brief search of the premises the attendant stated that the oil cap had been found; that she returned to the station, secured the cap and more oil and, after adding the oil and replacing the cap, once again started toward her destination; that a short time later plaintiff once again heard loud knocking and other noises and the engine stopped; and that the automobile "was towed to D. L. Claborn Buick, where she was informed that due to the loss of engine oil, which occurred as a result of the oil cap being left off by defendant’s attendant, the engine was ruined and would have to be replaced at a cost of $595.27.” Recovery was sought in the amount of $595.27 for replacement of the engine, $42 towing charges, and $350 for loss of use of the automobile.

The trial court, sitting without a jury, entered judgment for plaintiff in the amount of $750 plus court costs, and defendant appeals. Held:

" 'In a case where the owner has undertaken to make proper and necessary repairs, he may, in establishing such damage, include such proper and necessary expenses, provided such items are the direct and proximate result of the [defendanfs negligence], 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.’ [cits, omitted].” Ray Wright Enterprises v. Reaves, 128 Ga. App. 745, 746 (197 SE2d 856). (Emphasis supplied.)

Plaintiff here sought to establish her damages by proving the cost of repairs to the automobile — $595.27 for replacement of the engine — but she failed to submit evidence to support the allegations of the complaint that the engine was ruined as a result of loss of oil. The only evidence in this regard is as follows: "Q. Did you authorize any other repairs to your car other than the repair of the. engine due to the loss of the oil? A. No, huh-uh.” Plaintiff testified that she was "not knowledgeable with respect to automobile mechanics,” and this testimony that she did not authorize any other repairs is not evidence that the replacement of the engine was necessary as a result of the oil loss. There is simply a failure of proof as to the nature and extent of any damage to the automobile and its causal relationship to the oil loss. These are matters for affirmative proof and cannot be established merely by showing that the engine malfunctioned and was subsequently replaced at a stated cost.

Argued October 3, 1974 Decided January 7, 1975. Patrick, Sidener, Bryant & Hamner, Charles F. Reeves, for appellant. John C. Tyler, for appellee.

While defendant made a motion for directed verdict at the trial, there is no enumeration that the court erred in denying it. Consequently a new trial is granted.

Judgment reversed.

Bell, C. J., Pannell, P. J., Quillian, Clark and Marshall, JJ., concur. Deen, P. J., Evans and Stolz, JJ., dissent.