Perkins v. Beatles

Evans, Judge,

dissenting.

Plaintiff filed suit against the owner of a gasoline service station because of damages to her automobile engine, resulting from driving without oil, following the attendant’s failure to replace the oil cap. The trial judge, sitting without a jury rendered judgment for plaintiff and the majority opinion reverses, holding that the evidence was insufficient to show that plaintiff’s damages resulted from defendant’s conduct; and also holding that plaintifPs evidence failed to prove the nature and extent of her damages. I respectfully dissent.

1. A judgment rendered by a judge sitting without a jury has the same force and effect as a verdict rendered by a jury. See: Givens v. Gray, 126 Ga. App. 309, 310 (190 SE2d 607); Wiley v. Kelsey, 13 Ga. 223. When such judgment is attacked, if there is any evidence to support same, it must be upheld; and the Court of Appeals is not authorized to set it aside because of a conflict in the evidence. Martin v. State, 95 Ga. App. 519 (98 SE2d 105). A judgment is presumed to be valid, and supported by every essential ingredient necessary to its rendition; the burden is on one attacking same to show to the contrary. Code§ 38-114; Allen v. Smith, 223 Ga. 265, 266 (154 SE2d 605).

2. Circumstantial evidence alone may support a verdict or judgment. In Kimberly v. Reed, 79 Ga. App. 137, 141 (3) (53 SE2d 208) the question was as to proof of the identity of the driver of the automobile, where all *674occupants were killed. A woman was found sitting on the front seat while Kimberly’s head was on the ground and his feet were on the floor board, near or under the clutch or brake pedal. At page 146 it was held that this was sufficient to prove identity of the driver. Again in Brown v. Matthews, 79 Ga. 1 (2) it is stated that "Truth is often dim, but is truth nevertheless. Frequently amongst the facts best proved is one which no witness has mentioned in his testimony, such fact being an inference from other facts,” and at page 8 it is held: .. it is not necessary that the evidence should shine upon it with a clear light. It is enough if glimpses of it be afforded by the evidence.”

3. In this case there was both direct and circumstantial evidence which amply supported the judgment. It was proven that plaintiff drove her car into the service station and requested service, which included adding one quart of oil to the motor, same being a small foreign car, to wit, a 1970 Opel Coupe Kadett. The car had been driven approximately 5,000 miles; and plaintiff had periodic checkups thereon and never had any major problems with the car. She left the service station and when she had driven one-fourth of a mile she heard a loud, popping noise as if something had given way in the car, and all of a sudden there was smoke, and the car started choking, and stopped. She looked under the hood and saw the oil cap was missing and oil was all over the engine and under the hood. She returned to the service station, where the attendant found the oil cap on defendant’s premises, and apologized to plaintiff for his conduct. More oil was put into the motor and plaintiff drove away, but when she had traveled a short distance, the motor cut off again. Plaintiff was unable to start the car again, and she was required to pay a $42 towing charge. She had D. L. Clabom Buick repair the car, and its charges for such repairs amounted to $595.27. She was without the use of her car from May 12 until June 27 (46 days) and she testified that the rental value of a similar car was $10 per day. Of considerable significance is plaintiffs testimony (Tr. p. 16) to the effect that she did not authorize any other repairs to her car other than the repair of the engine due to the loss of oil. There was no objection to this testimony, and it will therefore be presumed that Claborn Buick *675made only those repairs and that these repairs were due to the loss of oil, for which Claborn Buick rendered its bill.

4. The above evidence furnishes a complete answer to the suggestion that the evidence did not prove plaintiffs damages resulted from defendant’s conduct, that is, failure to replace the oil cap, resulting in loss of oil in the motor.

5. The foregoing evidence likewise clearly shows that plaintiffs proven damages were considerably in excess of the judgment, to wit:

Necessary repairs $595.27

Towing charge 42.00

Loss of use of car for 46 days at $10 per day 460.00

Total $1,097.27

The judgment rendered was for only $750, and was therefore within the range of the evidence.

The language in the judgment implies that the trial judge used the "before-and-after” values of the car to establish the judgment reached. This method may have been authorized by the testimony, but it is quite certain that he could have used another method, whereby he could have rendered judgment for $1,107.27. A judgment that is correct, even if arguendo it be conceded that the wrong reasoning was used in reaching that judgment, will be affirmed. See Blount v. King, 51 Ga. App. 4 (3) (179 SE 198); Stahl v. Russell, 206 Ga. 699, 701 (2) (58 SE2d 135).

6. I therefore respectfully dissent from the reversal by the majority, and would vote to affirm the judgment in favor of the plaintiff.

I am authorized to state that Presiding Judge Deen and Judge Stolz join in this dissent.