Opinion
36850.
DECIDED SEPTEMBER 19, 1957.
Tort; truck damaged by tree limb. Before Judge Wright. Fulton Civil Court. July 3, 1957.
Wesley G. Bailey, Clyde W. Chapman, for plaintiff in error.
J. C. Savage, J. M. B. Bloodworth, Henry L. Bowden, Newell Edenfield, Robert S. Wiggins, Ferrin Y. Matthews, Martin McFarland, contra.
1. There is sufficient evidence to sustain the verdict and judgment.
2. The trial court did not err in denying the motion for new trial as to the special ground.
DECIDED SEPTEMBER 19, 1957.
C. R. McCoy filed an action in the Civil Court of Fulton County against the City of Atlanta alleging that his truck, which an employee of the plaintiff was driving, had been damaged by a limb projecting above a city street. The defendant filed general and special demurrers to the petition. The trial court sustained the general demurrer. The plaintiff filed an application for a writ of certiorari to the Superior Court of Fulton County, complaining of the order sustaining the general demurrer. That court sustained the writ of certiorari. The plaintiff amended the petition. The case proceeded to trial on its merits. The trial judge without a jury after hearing the evidence and arguments, rendered a judgment in favor of the defendant. The plaintiff's motion for new trial was denied, and he excepts.
The evidence shows substantially as follows: Tommy Crocker testified that on March 20, 1955, he was hauling eggs in a 1950 Chevrolet truck in the City of Atlanta for the plaintiff; that he made a sharp left turn into Woodland from Eden with the truck in second gear; that a car was starting up from the left-hand side of the street and witness eased over to give room; that something hit his truck; that he was approximately three feet from the curb. He further testified that a limb approximately two and one-half feet in diameter and seven to seven and one-half feet from the ground and projecting out into the street struck the right hand top of the truck, completely tearing back the top part of the body, splitting open the side of the body, and destroying the first layer of eggs; that the top of the truck body was between eight and nine feet from the ground; and that he examined the limb and saw several big marks or scars on it. On cross-examination the same witness testified that he had been driving trucks for ten or fifteen years; that he did not know anything about the truck other than it was a 1950 standard size Chevrolet truck; that he was traveling 15 to 20 miles per hour and had unobstructed vision; that he saw the limb sticking out but it did not occur to him that he might not have room and his attention was directed mainly to the car that pulled off. He further stated that when he got back to McCoy's place of business they unloaded the truck and it sat on the lot at least a week before being sent to the garage for repairs. On redirect examination the same witness testified that the car mentioned hereinabove was parked on the left side of the street and it cranked up and was coming toward the witness; that the street is not very wide and he saw no sign or warning on the tree limb to notify him of the danger.
C. R. McCoy, the plaintiff, testified that he paid between $2,350 and $2,400 for the chassis and $1,100 for the body which he had transferred from another truck; that after the accident he had it repaired for $977.88; that he lost twelve cases of eggs at $9 per case; that he was without the use of his truck six weeks and one day; that he normally ran the truck daily and figured reasonable value for loss of its use at $50 a week. On cross-examination the plaintiff testified that the body of the truck was approximately twelve feet long and the top was nine feet from the ground.
Patrolman E. L. Thackston testified on behalf of the defendant that he investigated the accident and took a picture of the scene which he described and identified. On cross-examination he testified that he measured the tree and found that the limb was six and one-half feet from the ground; that the truck went approximately a foot and a half or two feet from the curb line; that he knew of no city ordinance the driver had violated; that the truck was badly damaged and he estimated the damage at approximately $800.
J. B. Davis, a witness for the defendant, testified that he had been in the commercial truck body business for 22 years and that the fair value of a 1951 standard Chevrolet 4 year old aluminum truck body 12 feet long and 7 feet wide and 6 1/2 feet high standing about 9 feet off the ground would be roughly between $350 and $400; that the fair value of the body new would be $900 to $950; that after looking at the picture of the truck, as shown in the document marked for identification as D-1, the fair market value of the body would be around $150 or $200, maybe. On cross-examination the same witness testified that he had not seen the truck, just the picture, and that the salvage value of the truck would be around $150.
1. The first question presented here is whether or not the evidence authorized the judgment. We have set out the evidence in detail. Suffice it to say that there is sufficient evidence to support the judgment of the trial court as to the general grounds.
2. Special ground 1 assigns error on admission of certain evidence, over objection of counsel for the plaintiff. It appears that the witness had not seen the truck, but was shown pictures of the truck. An assignment of error going to amount of damages, as distinguished from right to damages is immaterial, where the court finds against a plaintiff. Should the admission of evidence as assigned in this ground be erroneous, such is harmless. Counsel for the plaintiff cites in support of this special ground Burns v. Brown, 73 Ga. App. 488 ( 37 S.E.2d 233). In that case a witness was asked a hypothetical question as to the market value of an automobile, the witness not having seen the car. The court admitted the testimony, and such admission was approved by the Court of Appeals. It is thus seen that that case is not the basis of reversal of the instant case. In Globe Rutgers Fire Ins. Co. v. Jewell-Loudermilk Co., 36 Ga. App. 538 (5) ( 137 S.E. 286), this court held: "Where a witness testifies as to his familiarity with the value of property of the kind destroyed, his estimate of the value of the property destroyed is relevant and admissible." See also City of Griffin v. Southeastern Textile Co., 79 Ga. App. 420 ( 53 S.E.2d 921). This evidence was properly admitted. This special ground is not a basis for reversal.
The court did not err in denying the motion for new trial for any reason assigned.
Judgment affirmed. Townsend and Carlisle, JJ., concur.