Givens v. Bourrie., 190 Ga. App. 425, 379 S.E.2d 223 (1989)
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Summary
Judgment affirmed. Banke, P. J., and Birdsong, J., concur.
Summary
Judgment affirmed. Banke, P. J., and Birdsong, J., concur.
Text
Gordon C. Raeburn, for appellee.G. Hughel Harrison, for appellant.
Following the denial of its motion for new trial and amended motion for new trial, defendant Givens d/b/a Givens Used Auto Parts appealed. The suit was brought by customer Bourrie for breach of contract, fraud, punitive damages, expenses under OCGA
The jury awarded plaintiff actual damages of $1,251.27 for each of his claims of breach of contract, fraud, and violation of the Act; it awarded no punitive damages but found violation of the Act to be intentional. Plaintiff elected the verdict rendered under OCGA
1. Appellant contends the trial court erred in denying its original and renewed motions for a directed verdict because the plaintiff failed to prove damages as required by law.
Construing the evidence most favorably toward the plaintiff and the verdict, see Eddie Parker Interests v. Booth,
A day or so later, Bourrie was notified by defendant that there was a problem with the transmission and that repair would cost an additional two hundred dollars. Bourrie agreed to the repair and defendant installed an engine in the truck.
When Bourrie picked up the truck he observed that the engine looked a little big for a 350 but was assured that it was "[a] good running 350, no problems." He paid defendant twelve hundred dollars.
Bourrie had been told verbally that the warranty was for thirty days.
Four days later the engine began to miss and skip. Bourrie knew defendant was closed for vacation, so he took the truck to Precision Tune for evaluation. The diagnosis was a defective intake manifold gasket. When Bourrie went to replace the part he discovered that the installed engine was a 455 rather than the promised 350 size engine. Bourrie called Mrs. Givens and was told that they did not guarantee the size of the engine.
Bourrie replaced the part and approximately two weeks after the purchase of the engine, he took the truck on a substantial motor trip out of state. The engine began to knock; a rod bearing had gone out. Bourrie had maintained oil and coolant in the engine. Bourrie rented a vehicle and towing equipment and towed the truck back to the defendant and asked that the engine be fixed. Defendant refused. Bourrie had his own mechanic take the defective engine out and eventually sold the truck.
Bourrie's mechanic testified that the 455 engine used a lot more gas than did the 350, that it was a "guzzler," that bearings went out all the time on a 455, that it was not a good engine to be used for working, and that in his garage there was no market for a 455 engine.
Plaintiff introduced into evidence the $1,200 sales slip from defendant, a '$12.50 bill for the Precision Tune evaluation, his rental car bill for $145.50, and the rental towing equipment bill for $43.75.
Under the Fair Business Practices Act, the measure of damages is the actual injury suffered. Standish v. Hub Motor Co.,
The sufficiency of the evidence of damages on the remaining claims is not reached inasmuch as the judgment at issue is based solely on the verdict under the Fair Business Practices Act.
2. Appellant contends that the court erred in its charge and recharge on the measure of damages recoverable on each count of his complaint. The court's charge and recharge considered as a whole and the portions instructing on damages in connection with the other parts of the charge were correct statements of the law. See Robert & Co. Assoc. v. Tigner,
3. Appellant challenges the trial court's denial of his motion for new trial and amended motion for new trial solely on the bases already urged. The motions were properly denied. See Divisions 1 and 2, supra. Other grounds raised in the motion for new trial and the amended motion for new trial have not been pursued and therefore are deemed abandoned. Court of Appeals Rule 15 (c) (2); Melton v. Gilleland & Sons,
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