Opinion
39094.
DECIDED SEPTEMBER 22, 1961.
Action for damages. Fulton Civil Court. Before Judge Smith.
J. Sidney Lanier, for plaintiff in error.
Charles E. Walker, G. W. Jessee, contra.
A verdict for the plaintiff was authorized by the evidence and the defendant cannot complain that a verdict against him is for a less amount than the evidence authorized.
DECIDED SEPTEMBER 22, 1961.
Michael Creaty sued Jimmy Lee, doing business as Tri-City Auto Service, to recover for damages sustained when, according to the allegations of his petition, his automobile was wrecked while in the custody of the defendant for the purpose of having a motor "tune-up" on such automobile. On the trial the jury returned a verdict for the plaintiff and the defendant's motion for new trial, on the usual general grounds only, was thereafter overruled. The defendant now assigns error on the judgment adverse to him.
The defendant, in his answer, admitted that the vehicle was delivered to him for a "tune-up" on November 3, 1958, and the evidence disclosed that the automobile was in his possession on two occasions, once to have new carburetors of a different design installed, and once to have the new carburetors adjusted. Therefore a finding was authorized that the second delivery took place on November 3, 1958.
The delivery was shown, the damage was shown, and since the burden was on the defendant (a bailee for hire); at this juncture to show proper diligence (Code § 12-104; Wynn v. Johns, 97 Ga. App. 605, 104 S.E.2d 150), and the evidence not demanding a verdict that proper diligence had been exercised, it cannot be said that a verdict for the plaintiff was not authorized.
In support of his motion for new trial the defendant contends that the amount of the verdict was so at variance with the evidence that a new trial should be granted. The plaintiff, the only witness who testified as to the value of the automobile, testified that the automobile had a fair market value of $2,200 at the time it was delivered to the defendant and after the wreck it had a fair market value of only $800, a difference of $1,400. The verdict was for $1,000. "`A defendant against whom a verdict has been returned cannot complain that the verdict is for a less amount than that which the plaintiff was entitled to recover if entitled to recover at all.' Johns v. League, Duvall Powell, Inc., 202 Ga. 868 (1) ( 45 S.E.2d 211, 174 ALR 757)." Mabry v. Holcomb, 82 Ga. App. 1 (2) ( 60 S.E.2d 411).
The verdict for the plaintiff was authorized by the evidence and the judgment overruling the defendant's motion for new trial was not error for any reason assigned.
Judgment affirmed. Carlisle, P.J., and Eberhardt, J., concur.