Simmons v. Boros

335 S.E.2d 662, 176 Ga. App. 346, 1985 Ga. App. LEXIS 2844

• Court: Court of Appeals of Georgia
• Decided: September 13, 1985
• Docket: 70237
• Status: Published

Opinions

Deen, Presiding Judge.

Appellant Bobby Simmons brought an action pro se against Boros individually and as owner of a garage specializing in repair of certain foreign automobiles. He alleged that Boros had broken a contract to repair the engine of the used Fiat Spyder which Simmons had bought three weeks prior to first taking it to Boros. Simmons alleged that Boros’ work was unsatisfactory and that, after taking the car back to Boros several times, he had ultimately taken it to several other mechanics for various repairs ranging from radiator to cylinders to door locks.

Nearly two years after first taking the car to Boros, Simmons filed the action below, and it went to trial. At the close of Simmons’ evidence, the defendant moved for a directed verdict on the ground that plaintiff had failed to prove damages. The court granted the motion and Simmons appeals, enumerating as error the direction of the verdict and three errors having to do with the court’s allegedly having tried the case on a negligence theory rather than as a breach of contract. Held:

1. Scrutiny of the pleadings and the evidence presented at trial reveals no error on the part of the trial court involving legal theory, including those theories named by appellant in his enumeration of errors. “Damages growing out of a breach of contract, in order to form the basis of a recovery, must be such as can be traced solely to the breach, must be capable of exact computation, must have arisen naturally and according to the usual course of things from such breach, and must be such as the parties contemplated as a probable result of the breach.” Sanford-Brown Co. v. Patent Scaffolding Co., 199 Ga. 41 (33 SE2d 422) (1945), quoted in Bennett v. Assoc. Food Stores, 118 Ga. App. 711, 714 (165 SE2d 581) (1968); see OCGA § 13-6-2. The transcript of the trial held in the instant case shows that the court recited this standard for proving damages in his remarks preliminary to directing the verdict for appellee. There is no evidence of record supporting appellant’s contention that the court applied a negligence theory rather than a contractual.

“Generally, the proper measure of damages for defective workmanship would be the cost of repair of the defect.” Adamson Co. v. Owens-Ill. Dev. Corp., 168 Ga. App. 654, 657 (309 SE2d 913) (1983); Holder v. J. F. Kearley, 153 Ga. App. 843 (267 SE2d 266) (1980). As a prerequisite to determination of the proper measure of damages in a given case, however, “[t]he burden is on the plaintiff to show both the breach and the damage,. . . and this must be done by evidence which will furnish the jury data sufficient to enable them to estimate with reasonable certainty the amount of the damages ... It cannot be left to speculation, conjecture and guesswork.” Bennett v. Assoc. Food Stores, supra at 716 (emphasis supplied); Hospital Auth. of Charlton County v. Bryant, 157 Ga. App. 330 (277 SE2d 322) (1981).

The record in the instant case reveals that the plaintiff presented his evidence under various ex contractu rubrics (breach of warranty, unjust enrichment, benefit of bargain, etc.) but in so doing failed to prove either the alleged breach or the alleged damages in a manner conforming to the criteria set forth in OCGA § 13-6-2 and in Bennett, supra. Cf. Carr v. Jacuzzi Bros., 133 Ga. App. 70 (210 SE2d 16) (1974). Appellant’s first and second enumerations are devoid of merit.

2. OCGA § 9-11-50 (a) authorizes direction of a verdict “at the close of the evidence offered by an opponent or at the close of the case . . . [i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. . . .’’If the testimony presented by the plaintiff, together with the reasonable inferences to be drawn therefrom in the light most favorable to him, makes a prima facie case, however, then the direction of a verdict for defendant is not authorized. Lashley v. Ford Motor Co., 359 FSupp. 363 (M. D. Ga. 1972), aff’d 480 F2d 158 (5th Cir.), cert. denied 414 U. S. 1072 (94 SC 585, 38 LE2d 478) (1973).

In the instant case the basis of Boros’ motion for directed verdict was Simmons’ alleged failure to prove damages. We have held in Division 1, supra, that he did not carry his burden of making out a prima facie case; that is, of proving either breach or damages. It is true that many evidentiary details were inconsistent with one another; that is, there were conflicts in the evidence. None of the disputed evidence, however, pertained to a material issue of the case. Here, as in Carr v. Jacuzzi Bros., supra at 74, “[p]laintiff simply failed to prove his case and the direction of a verdict was proper. [Cit.] The mere existence of conflicts in the evidence does not render the direction of a verdict erroneous if it was demanded, either from proof or from lack of proof on the controlling issue or issues. [Cit.]” (Emphasis supplied.) See also Gillen v. Coconut Grove Bank &c. Co., 172 Ga. 908 (159 SE 282) (1931); Stewart v. Western Union Tel. Co., 83 Ga. App. 532 (64 SE2d 327) (1951). The trial court did not err in directing a verdict for appellee.

Judgment affirmed.

Banke, C. J., Birdsong, P. J., Pope and Benham, JJ., concur. Sognier, J., concurs in the judgment only. McMurray, P. J., Carley and Beasley, JJ., dissent.