2020 Georgia Code
Title 51 - Torts
Chapter 12 - Damages
Article 1 - General Provisions
§ 51-12-4. Damages Given as Compensation for Injury; Measure of Damages Generally; Nominal Damages

Damages are given as compensation for injury; generally, such compensation is the measure of damages where an injury is of a character capable of being estimated in money. If an injury is small or the mitigating circumstances are strong, nominal damages only are given.

(Orig. Code 1863, § 2997; Code 1868, § 3010; Code 1873, § 3065; Code 1882, § 3065; Civil Code 1895, § 3905; Civil Code 1910, § 4502; Code 1933, § 105-2001.)

- For article, "The Torok Tort: Recovery for Abusive Litigation," see 23 Ga. St. B. J. 84 (1987). For article, "Pre-Impact Pain and Suffering," see 26 Ga. St. B. J. 60 (1989). For article, "The Discount Rate in Georgia Personal Injury and Wrongful Death Damage Calculations," see 13 Ga. St. U.L. Rev. 431 (1997). For annual survey of product liability law, see 58 Mercer L. Rev. 313 (2006). For article, "The Experiential Future of the Law," see 60 Emory L.J. 585 (2011). For note, "A Single Symbolic Dollar: How Nominal Damages Can Keep Lawsuits Alive," see 52 Ga. L. Rev. 935 (2018). For comment on Burnett v. Western & A.R.R., 79 Ga. App. 530, 54 S.E.2d 357 (1949), see 12 Ga. B. J. 211 (1949). For comment on Padgett v. Williams, 82 Ga. App. 509, 61 S.E.2d 676 (1950), see 13 Ga. B. J. 339 (1951).

ANALYSIS

• General Consideration
• Measure of Damages Applicable to Specific Cases
• Collateral Source Rule
• Profits
• Evidence
• Jury Instructions

Former Code 1933, §§ 105-2001, 105-2002, and 105-2003 (see now O.C.G.A. §§ 51-12-4,51-12-5, and51-12-6) must be construed in pari materia. Blanchard v. Westview Cem., 133 Ga. App. 262, 211 S.E.2d 135, modified, 234 Ga. 540, 216 S.E.2d 776 (1974).

- In every case of breach of contract the other party has a right to recover at least nominal damages, which will carry the costs. The rule does not apply "where only special and punitive damages are sued for," and when such damages are not recoverable. Bendle v. Ortho Mattress, Inc., 133 Ga. App. 575, 211 S.E.2d 618 (1974).

This section concerns general compensatory damages. Blanchard v. Westview Cem., 133 Ga. App. 262, 211 S.E.2d 135, modified, 234 Ga. 540, 216 S.E.2d 776 (1974).

- In tort cases, general compensatory damages may be compensation for: (1) physical pain arising from a physical injury; and (2) physical and mental pain arising from a physical injury. Blanchard v. Westview Cem., 133 Ga. App. 262, 211 S.E.2d 135, modified, 234 Ga. 540, 216 S.E.2d 776 (1974).

General damages are those which law presumes to flow from tortious act and may be awarded without proof of any specific amount to compensate the plaintiff for the injury done. Alexander v. Holmes, 85 Ga. App. 124, 68 S.E.2d 242 (1951).

Rationale of damages is to compensate plaintiff and not to unreasonably burden the defendant beyond the point of compensating the plaintiff. Mercer v. J & M Transp. Co., 103 Ga. App. 141, 118 S.E.2d 716 (1961); Atlanta Recycled Fiber Co. v. Tri-Cities Steel Co., 152 Ga. App. 259, 262 S.E.2d 554 (1979).

- The law infers some damage from the invasion of a property right and if no evidence is given of any particular amount of loss, declares the right by awarding what it terms nominal damages. Georgia Power Co. v. Womble, 150 Ga. App. 28, 256 S.E.2d 640 (1979); Avery v. K.I., Ltd., 158 Ga. App. 640, 281 S.E.2d 366 (1981); Callahan v. Panfel, 195 Ga. App. 891, 395 S.E.2d 80 (1990).

When there is fraud or breach of a legal or private duty accompanied by any damage, the law gives a right to recover damages, even only nominal damages, as compensation. Holmes v. Drucker, 201 Ga. App. 687, 411 S.E.2d 728 (1991).

In an action for damages resulting from a law firm's representation of a client in an uncontested divorce action, the client's allegations that the client's marital status was changed without the client's knowledge, without proper representation and under terms the client had not agreed to, was sufficient to state a cause of action against the firm for at least nominal damages. Peters v. Hyatt Legal Servs., 211 Ga. App. 587, 440 S.E.2d 222 (1993).

In a borrower's wrongful foreclosure case against a lender in which the lender failed to answer the complaint, thereby admitting causation and the borrower's allegation of damages, even if the borrower had no equity in the home and could not demonstrate actual damages, the borrower still could recover nominal damages, and nominal damages would support an award of punitive damages. Zhong v. PNC Bank, N.A., 345 Ga. App. 135, 812 S.E.2d 514 (2018), cert. denied, No. S18C1034, 2018 Ga. LEXIS 696 (Ga. 2018), cert. denied, No. S18C1032, 2018 Ga. LEXIS 700 (Ga. 2018).

- A new trial will not be ordered simply to allow the plaintiff to present a question for the jury as to nominal damages. Hodsdon v. Whitworth, 173 Ga. App. 863, 328 S.E.2d 753 (1985); Cox v. Cantrell, 181 Ga. App. 722, 353 S.E.2d 582 (1987).

- This section permits the recovery of damages sustained by the plaintiff, but not by a third person. Hence, a sender of a message cannot recover damages that have resulted to the receiver of the message. Bass v. Postal Telegraph-Cable Co., 127 Ga. 423, 56 S.E. 465, 12 L.R.A. (n.s.) 489 (1907).

Injured party cannot be placed in better position than party would have been in if contract had not been breached. Lastinger v. City of Adel, 69 Ga. App. 535, 26 S.E.2d 158 (1943).

Although one be damaged by joint act of two persons, there is but one injury; and, if that is satisfied, the party injured is placed in as near the party's normal condition as the law can place the party and there can be no double recovery of amount of damage which one has sustained. Edmondson v. Hancock, 40 Ga. App. 587, 151 S.E. 114 (1929); Caplan v. Caplan, 62 Ga. App. 577, 9 S.E.2d 96 (1940).

No person is entitled to recover full compensation more than once for same injury. Hall v. Helms, 150 Ga. App. 257, 257 S.E.2d 349 (1979).

Plaintiff is entitled to only one satisfaction; and if the manner of releasing one involves satisfaction in whole or in part of the claim, it will enure to the discharge, pro tanto, of all who are liable. Caplan v. Caplan, 62 Ga. App. 577, 9 S.E.2d 96 (1940).

There can be no double recovery of the amount of damage which one has sustained; it would be as reasonable to ask to recover from one defendant twice the amount of the damage sustained, as it is to ask from each of two defendants payment of the full amount of such damage even when the cause of action is good against both. Caplan v. Caplan, 62 Ga. App. 577, 9 S.E.2d 96 (1940).

A person may have but one satisfaction for the person's injuries, whether to the person's body or to property. Pennsylvania Threshermen & Farmers Mut. Cas. Ins. Co. v. Hill, 113 Ga. App. 283, 148 S.E.2d 83 (1966).

- There can be but one satisfaction of the same damage or injury, and if, instead of merely dismissing the plaintiff's suit against one of two defendants, sued jointly, the plaintiff proceeds, for a consideration, to fully settle and satisfy the plaintiff's claim against one, the plaintiff cannot by the terms of such accord and satisfaction, when injury or damage complained of is the same, limit the release to the defendant thus dealt with, but in such a case the claim itself becomes extinguished. Edmondson v. Hancock, 40 Ga. App. 587, 151 S.E. 114 (1929); Giles v. Smith, 80 Ga. App. 540, 56 S.E.2d 860 (1949).

Tort-feasor cannot diminish amount of liability by attempting to introduce payments made to plaintiff by third party. Garrison v. Rich's, 154 Ga. App. 663, 269 S.E.2d 513 (1980).

- In an action for a personal injury of a permanent character, when the plaintiff is entitled to recover full damages under this section, one element, is a fair and reasonable compensation for a loss of what the plaintiff would otherwise have earned in the plaintiff's trade or profession. As to the element of damages which includes pain and suffering, a reasonable sum is recoverable, to be determined by the jury. Western & A.R.R. v. Drysdale, 51 Ga. 644 (1874); Southern Cotton Oil Co. v. Skipper, 125 Ga. 368, 54 S.E. 110 (1906).

Permanent diminution of capacity to labor is element of damages for consideration of jury in determining the amount of recovery, along with evidence as to pain, suffering, disfigurement, or the like, although no pecuniary value is proved by the evidence. Langran v. Hodges, 60 Ga. App. 567, 4 S.E.2d 489 (1939).

The fact of impairment or loss of ability to work, with or without pecuniary compensation, may be considered by the jury in determining the amount to be allowed for pain and suffering, and no evidence as to earnings is necessary in such calculation, the only standard of measurement being the enlightened conscience of impartial jurors. Langran v. Hodges, 60 Ga. App. 567, 4 S.E.2d 489 (1939).

The loss or material impairment of any power or faculty is matter for compensation, irrespective of any fruits, pecuniary or otherwise, which the exercise of the power or faculty might produce, and irrespective, also, of any conscious pain or suffering which the loss or impairment might occasion. Langran v. Hodges, 60 Ga. App. 567, 4 S.E.2d 489 (1939).

Every person is entitled to retain and enjoy each and every power of body and mind with which he or she has been endowed, and no one, without being answerable in damages, can wrongfully deprive another, by a physical injury, of any such power or faculty, or materially impair the power or faculty; such deprivation or impairment can be classed with pain and suffering. Langran v. Hodges, 60 Ga. App. 567, 4 S.E.2d 489 (1939).

As element of pain and suffering, the plaintiff may recover for mental pain and suffering and for shame and mortification as the result of disfigurement or mutilation inflicted as a result of the tortious injury perpetrated by the defendant. Fields v. Jackson, 102 Ga. App. 117, 115 S.E.2d 877 (1960).

- The element of pain and suffering, for which the only measure of damages is the enlightened conscience of impartial jurors, is not present in a death claim. Western & Atl. R.R. v. Burnett, 79 Ga. App. 530, 54 S.E.2d 357 (1949).

- Under Georgia law, damages for mental suffering and emotional anguish can be recovered, when there is an intentional infliction of mental distress, without a showing of contemporaneous physical harm. Carrigan v. Central Adjustment Bureau, Inc., 502 F. Supp. 468 (N.D. Ga. 1980).

When mere negligence is not relied on, but the conduct complained of is malicious, willful, or wanton, mental pain and suffering may be recovered without the attendant circumstances otherwise required. Kuhr Bros. v. Spahos, 89 Ga. App. 885, 81 S.E.2d 491 (1954), overruled on other grounds, Whiten v. Orr Constr. Co., 109 Ga. App. 267, 136 S.E.2d 136 (1964).

- When there is a physical injury or pecuniary loss, compensatory damages include recovery for accompanying "mental pain and suffering" even though the tortious conduct complained of is merely negligent. Westview Cem. v. Blanchard, 234 Ga. 540, 216 S.E.2d 776 (1975).

When mere negligence is relied on, before damages for mental pain and suffering are allowable, there must also be an actual physical injury to the person, or a pecuniary loss resulting from an injury to the person which is not physical; such an injury to a person's reputation, or the mental pain and suffering must cause a physical injury to the person. Kuhr Bros. v. Spahos, 89 Ga. App. 885, 81 S.E.2d 491 (1954), overruled on other grounds, Whiten v. Orr Constr. Co., 109 Ga. App. 267, 136 S.E.2d 136 (1964).

Minor as well as adult may recover for pain and suffering. Kite v. Brooks, 51 Ga. App. 531, 181 S.E. 107 (1935).

Guide for jury in determining compensation for mental and physical pain and suffering is enlightened conscience of impartial jurors, acting under the sanctity of their oath to compensate the plaintiff with fairness to the defendant. Shepherd Constr. Co. v. Vaughn, 88 Ga. App. 285, 76 S.E.2d 647 (1953).

Law fixes no measure for pain and suffering except enlightened conscience of impartial jurors. Firestone Tire & Rubber Co. v. Pinyan, 155 Ga. App. 343, 270 S.E.2d 883 (1980).

Damages for mere fright are not recoverable, but damages may be recovered when there is some physical injury attending the cause of the fright, or, in the absence of physical injury, when the fright is of such character as to produce some physical or mental impairment directly and naturally resulting from the wrongful act. Candler v. Smith, 50 Ga. App. 667, 179 S.E. 395 (1935).

Mere wrongful acts of negligence will authorize recovery when the resulting fright, shock, or mental suffering is attended with actual immediate physical injury, or when, from the nature of the fright or mental suffering, there naturally follows as a direct consequence physical or mental impairment. Candler v. Smith, 50 Ga. App. 667, 179 S.E. 395 (1935).

Even in the absence of willfulness or wantonness, the mere wrongful act of an agent will authorize a recovery when the resulting fright, shock, or mental suffering is attended with actual immediate physical injury, or when from the nature of the fright or mental suffering there naturally follows, as a direct consequence, physical or mental impairment; and in either of such events the fright or mental suffering can itself be considered, together with the accompanying physical injury or such resulting physical or mental impairment, as an element of damage. Atlanta Hub Co. v. Jones, 47 Ga. App. 778, 171 S.E. 470 (1933).

Claim for loss of consortium does not include lost wages, medical expenses, or loss of earning capacity. Branton v. Draper Corp., 185 Ga. App. 820, 366 S.E.2d 206 (1988).

If only special or punitive damages are expressly pled and prayed, recovery is limited to damages thus sought. Hall v. Browning, 195 Ga. 423, 24 S.E.2d 392 (1943).

- The final judgment shall grant the relief to which the party in whose favor it is granted is entitled, even if the party has not demanded such relief in the party's pleadings. Jacksonville Blow Pipe Co. v. Trammell Hardwood Flooring Co., 170 F. Supp. 537 (N.D. Ga. 1958), aff'd, 264 F.2d 717 (5th Cir. 1959).

Petition setting forth alleged torts, and claiming damages generally in named amount, states cause of action for recovery of general damages, nominal damages and punitive damages, as the evidence might show; and is not subject to dismissal as claiming no recoverable damages. Hall v. Browning, 195 Ga. 423, 24 S.E.2d 392 (1943).

If the pleadings are not expressly limited, a petition setting forth a tort, and claiming unspecified damages in a stated amount, will be construed as seeking general damages, so as to authorize their recovery; and even though the injury be slight and no actual damage be shown, at least nominal damages would be recoverable. Hall v. Browning, 195 Ga. 423, 24 S.E.2d 392 (1943).

- Award of damages under O.C.G.A. § 51-12-4 required reversal because a timely notice of appeal was filed which divested the trial court of jurisdiction to make such an award. Hall v. Hidy, 263 Ga. 422, 435 S.E.2d 215 (1993).

Cited in East Tenn., Va. & Ga. Ry. v. Fleetwood, 90 Ga. 23, 15 S.E. 778 (1892); O'Neill Mfg. Co. v. Pruitt, 110 Ga. 577, 36 S.E. 59 (1900); Southern Ry. v. Clariday, 124 Ga. 958, 53 S.E. 461 (1906); Mason v. Nashville, C. & St. L. Ry., 135 Ga. 741, 70 S.E. 225, 33 L.R.A. (n.s.) 280 (1911); Hughes v. Bivins, 31 Ga. App. 198, 121 S.E. 590 (1923); Endsley v. Georgia Ry. & Power Co., 37 Ga. App. 439, 140 S.E. 386 (1927); Atlanta & W. Point R.R. v. Smith, 38 Ga. App. 20, 142 S.E. 308, cert. denied, 38 Ga. App. 816 (1928); Clay v. Brown, 38 Ga. App. 157, 142 S.E. 911 (1928); Lawrence v. Atlanta Gas Light Co., 49 Ga. App. 444, 176 S.E. 75 (1934); Barnes v. Kittrell, 55 Ga. App. 319, 190 S.E. 39 (1937); Lloyd Adams, Inc. v. Liberty Mut. Ins. Co., 190 Ga. 633, 10 S.E.2d 46 (1940); Tennessee, Ala. & Ga. Ry. v. Zugar, 193 Ga. 386, 18 S.E.2d 758 (1942); Kelly v. Adams, 84 Ga. App. 450, 66 S.E.2d 144 (1951); Sharpe v. Frost, 94 Ga. App. 444, 95 S.E.2d 309 (1956); Morgan v. Mull, 101 Ga. App. 36, 112 S.E.2d 661 (1960); Porter v. Bland, 105 Ga. App. 703, 125 S.E.2d 713 (1962); Hightower v. Landrum, 109 Ga. App. 510, 136 S.E.2d 425 (1964); Lee v. Morrison, 138 Ga. App. 332, 226 S.E.2d 124 (1976); Moritz v. Sunbeam Appliance Serv. Co., 146 Ga. App. 49, 245 S.E.2d 362 (1978); Bradley v. Godwin, 152 Ga. App. 782, 264 S.E.2d 262 (1979); Cole v. Klassic Kuts & Kurls, Inc., 169 Ga. App. 54, 311 S.E.2d 847 (1983); Kesler v. Veal, 182 Ga. App. 444, 356 S.E.2d 254 (1987); Whitehead v. Cuffie, 185 Ga. App. 351, 364 S.E.2d 87 (1987); Ferguson v. City of Doraville, 186 Ga. App. 430, 367 S.E.2d 551 (1988); Metropolitan Atlanta Rapid Transit Auth. v. Partridge, 187 Ga. App. 637, 371 S.E.2d 185 (1988); Bond v. Davis, 194 Ga. App. 379, 390 S.E.2d 627 (1990); Fabe v. Floyd, 199 Ga. App. 322, 405 S.E.2d 265 (1991); MacDonald v. United States, 900 F. Supp. 483 (M.D. Ga. 1995); MTW Inv. Co. v. Alcovy Properties, Inc., 228 Ga. App. 206, 491 S.E.2d 460 (1997); United States Fid. & Guar. Co. v. Paul Assocs., 230 Ga. App. 243, 496 S.E.2d 283 (1998); Conner v. Hart, 252 Ga. App. 92, 555 S.E.2d 783 (2001); Land v. Boone, 265 Ga. App. 551, 594 S.E.2d 741 (2004).

Measure of Damages Applicable to Specific Cases

Actual damage to overflowed land.

- The measure of damages for any illegal overflow of lands is the actual damages coming to the land by such illegal overflow. Phinizy v. City Council, 47 Ga. 260 (1872).

Amount of repair bill is proper evidence to be considered in arriving at the difference between the market value of the article before and after the damage. Hill v. Kirk, 78 Ga. App. 310, 50 S.E.2d 785 (1948).

Conduct of plaintiff prior to assault and battery may be considered by jury as extenuation and mitigation in fixing the amount of damages in the verdict. Robinson v. De Vaughn, 59 Ga. App. 37, 200 S.E. 213 (1938).

- In an action of trespass, if the plaintiff makes out a case for recovery except the proving of actual damages, the plaintiff will be entitled to nominal damages. Pausch v. Guerrard, 67 Ga. 319 (1881).

- In an action of deceit, the damages that may be recovered is the difference between the value of the property received and the value of the property if the misrepresentations were true. Denham v. Kirkpatrick, 64 Ga. 71 (1879).

- The measure of damages when a receiver is injured because a telegraph company incorrectly reports the state of the market on a particular article is the difference between the actual state of the market and the terms of the message. Hollis v. Western Union Tel. Co., 91 Ga. 801, 18 S.E. 287 (1893); Western Union Tel. Co. v. Truitt, 5 Ga. App. 809, 63 S.E. 934 (1909).

- The actual loss of the plaintiff, if attributable to the conduct of the defendant, is the fair market value of that which the plaintiff paid for and did not receive. Brown v. Royal Wood, Inc., 119 Ga. App. 564, 168 S.E.2d 211 (1969).

For fencing, injured or destroyed, recovery should be measured by cost of restoring and making condition as good as that in which was when injured or destroyed. Hall v. Chastain, 246 Ga. 782, 273 S.E.2d 12 (1980).

- Nominal damages can be recovered when one's property rights have been invaded, if special damage is not proved. Baston v. Higginbothem, 7 Ga. App. 835, 68 S.E. 455 (1910).

Measure of damages in actions for injuries to real property is the difference in value before and after the injury to the premises, and the only exception is when there is a more definite, equitable, and accurate way by which the damage may be determined. Mercer v. J & M Transp. Co., 103 Ga. App. 141, 118 S.E.2d 716 (1961).

Measure of damages for injury to timber is difference in value immediately before and immediately after such injury, and a charge which substantially so informs the jury is sufficient. Morgan v. Black, 86 Ga. App. 775, 72 S.E.2d 558 (1952).

Measure of damages is difference between market value of vehicle before and after damage. Hill v. Kirk, 78 Ga. App. 310, 50 S.E.2d 785 (1948).

- The measure of damages in an action to recover for injuries to a motor vehicle caused by a collision or other negligence of a defendant is the difference between the value of the vehicle before and after the collision or other negligence, but when the owner has had the vehicle repaired, that loss can be established by showing the reasonable value of labor and material used for the repairs, and the value of any depreciation (permanent impairment) after the vehicle was repaired, provided the aggregate of these amounts does not exceed the value of the vehicle before the injury. Perkins v. Augspurger, 184 Ga. App. 522, 362 S.E.2d 88, cert. denied, 184 Ga. App. 910, 362 S.E.2d 88 (1987).

- In an action for damages sustained after the plaintiff's automobile was struck in the rear by the defendant's truck, the following facts - it was dark and raining on the night of the accident, the streets were wet, the truck was loaded with equipment with a trailer in tow, a sudden action by a third party created an emergency - did not constitute mitigating circumstances, for the truck's driver was responsible for exercising ordinary care (O.C.G.A. § 40-6-180) and, while following another vehicle, was required to keep a proper lookout (O.C.G.A. § 40-6-49). U-Haul Co. v. Ford, 171 Ga. App. 744, 320 S.E.2d 868 (1984).

Necessary expense in restoring utility pole is proper measure of damages for its wrongful destruction. Horton v. Georgia Power Co., 149 Ga. App. 328, 254 S.E.2d 479 (1979).

Replacement cost was not proper measure of damages for destruction of old house which could not be repaired, when complete restoration to the condition it was in just before being damaged would cost almost twice as much as the house would then be worth to its owner. Mercer v. J & M Transp. Co., 103 Ga. App. 141, 118 S.E.2d 716 (1961).

In personal injury suit, court did not err in admitting in evidence Carlisle Mortality and Annuity Tables, or in submitting to the jury the question of fact whether under the evidence the plaintiff's injuries had permanently impaired the plaintiff's earning capacity. Atlanta & W. Point R.R. v. Hemmings, 66 Ga. App. 881, 19 S.E.2d 787 (1942).

There need be no direct or express evidence of value of the plaintiff's wife's services, but, in calculating the reasonable value of such services as have been lost, the jury may take into consideration the nature of the services and all the circumstances of the case. Shepherd Constr. Co. v. Vaughn, 88 Ga. App. 285, 76 S.E.2d 647 (1953).

- Telecommunications carrier could not recover loss of use damages absent some showing of monetary loss apart from the cost of repair because although the carrier suffered a loss of use of its cable, it did not show sufficient proof of loss of use damages; the proper measure of loss of use damages was not the theoretical rental value of a fiber-optic cable in a market that does not exist. MCI Communs. Servs. v. CMES, Inc., 291 Ga. 461, 728 S.E.2d 649 (2012).

Telecommunications carrier was not entitled to loss of use damages measured by the hypothetical cost to rent a replacement system when the carrier suffered no actual loss of use damages and did not need to rent a replacement system because the carrier was able to reroute calls within the existing redundant cable system the carrier necessarily installed in order to operate the carrier's business. MCI Communs. Servs. v. CMES, Inc., 291 Ga. 461, 728 S.E.2d 649 (2012).

Collateral Source Rule

Scope of collateral source rule.

- "Collateral source rule" refers generally to tort cases in which the plaintiff may receive benefits from collateral sources, e.g., insurance, the plaintiff's employer, or other source, which lessens the plaintiff's financial loss but will not diminish the damages otherwise recoverable from the wrongdoer. Ideal Pool Corp. v. Champion, 157 Ga. App. 380, 277 S.E.2d 753 (1981); Sheppard v. Tribble Heating & Air Conditioning, Inc., 163 Ga. App. 732, 294 S.E.2d 572 (1982); Rabun v. Kimberly-Clark Corp., 678 F.2d 1053 (11th Cir. 1982); Hayes v. Irwin, 541 F. Supp. 397 (N.D. Ga. 1982), aff'd, 729 F.2d 1466 (11th Cir.), cert. denied, 469 U.S. 857, 105 S. Ct. 185, 83 L. Ed. 2d 119 (1984).

Collateral source rule does not apply when evidence introduced arose in connection with different incident. Garrison v. Rich's, 154 Ga. App. 663, 269 S.E.2d 513 (1980).

In tort action, damages for loss of profits and for injury to or interruption of business, will be allowed only when they can be established with reasonable certainty and are the proximate result of the wrong complained of. No recovery can be had for such losses if the losses are uncertain, conjectural, or speculative. Jacksonville Blow Pipe Co. v. Trammell Hardwood Flooring Co., 170 F. Supp. 537 (N.D. Ga. 1958), aff'd, 264 F.2d 717 (5th Cir. 1959).

Generally, expected profits of a business are too uncertain, speculative, and remote to permit recovery for their loss. However, when the party's business is forced to close, or is interrupted, loss of profits may be proved and, though not recoverable as such, they may be considered in estimating the extent of party's injury. Jacksonville Blow Pipe Co. v. Trammell Hardwood Flooring Co., 170 F. Supp. 537 (N.D. Ga. 1958), aff'd, 264 F.2d 717 (5th Cir. 1959).

Prospective profits are necessarily somewhat uncertain and problematical, but when damages are definitely attributable to the wrong of the defendant and are only uncertain as to amount, the prospective profits will not be denied even though they are difficult of ascertainment. Jacksonville Blow Pipe Co. v. Trammell Hardwood Flooring Co., 170 F. Supp. 537 (N.D. Ga. 1958), aff'd, 264 F.2d 717 (5th Cir. 1959).

Proof of future profits by evidence of past profits in an established business gives reasonable basis for a conclusion. Jacksonville Blow Pipe Co. v. Trammell Hardwood Flooring Co., 170 F. Supp. 537 (N.D. Ga. 1958), aff'd, 264 F.2d 717 (5th Cir. 1959).

The general rule is that the expected profits of a commercial business which are too uncertain and speculative to afford a basis for compensation cannot be considered. However, an exception to this rule is that when the type of business and history of profits make the calculation of profits reasonably ascertainable, evidence of lost profits may be considered. Claxton Poultry Co. v. City of Claxton, 155 Ga. App. 308, 271 S.E.2d 227 (1980).

- Allegations that the plaintiff, as a result of the plaintiff's injuries, was unable to do any work for a period of approximately six months, that the plaintiff was a building contractor and that during that period the plaintiff could have constructed three or four houses for a profit therefrom of $6,000.00 or more were too vague and indefinite as a basis for the recovery of damages and the lost profits too speculative to recover as an item of damages. Atlanta-Asheville Motor Express v. Dooley, 78 Ga. App. 265, 50 S.E.2d 822 (1948).

In proving compensatory damages, certainty in fact of damage is essential, certainty as to the amount goes no further than to require a basis for a reasoned conclusion; the injured party is not to be barred from a fair recovery by impossible requirements. Jacksonville Blow Pipe Co. v. Trammell Hardwood Flooring Co., 170 F. Supp. 537 (N.D. Ga. 1958), aff'd, 264 F.2d 717 (5th Cir. 1959).

There must be sufficient evidence from which damage can be estimated, and this must include some facts and circumstances from which the jury may arrive at a just amount of monetary compensation, whether by proof of the value of the property before the damage and facts showing the value after the loss, or at least the extent of the loss and its consequent effect upon the value. Morgan v. Black, 86 Ga. App. 775, 72 S.E.2d 558 (1952).

- It was not error for the court to refuse to admit testimony of a witness as to whether the plaintiff looked older after the accident, when there was no effort to show that such a result was due to the accident or that the plaintiff was also of the opinion that the plaintiff looked older due to the injuries; such a fact would not be an element of pain and suffering unless the injury caused it and unless the plaintiff was conscious of it to the extent that it contributed to the plaintiff's pain and suffering. Richardson v. Coker, 78 Ga. App. 209, 50 S.E.2d 781 (1948).

- As for the plaintiff's pain and suffering and loss of ability to work, it is the fact of impairment or loss of ability to work, with or without compensation, that is to be considered by the jury in determining the amount to be allowed for pain and suffering, and no evidence as to earnings is necessary in such calculation, the only standard of measurement being the enlightened conscience of impartial jurors. Shepherd Constr. Co. v. Vaughn, 88 Ga. App. 285, 76 S.E.2d 647 (1953).

- Since the amount of damages for pain and suffering are determinable by the enlightened consciences of impartial jurors, it cannot be said as a matter of law that a verdict of $1,500.00 was excessive or the result of bias and prejudice, since there was evidence to authorize the inference that the plaintiff's injuries consisted of bruises upon the plaintiff's body and caused the plaintiff to suffer great pain, as a result of which the plaintiff was confined to the plaintiff's home for about six weeks and it was necessary for the plaintiff to be waited on, lifted into and out of bed, and caused the plaintiff to lose the use of the plaintiff's arm so that the plaintiff could not raise the plaintiff's hand to her shoulder, that the plaintiff's injuries were permanent and that the plaintiff, at the plaintiff's age, which was 62 years, would continue to suffer pain as long as the plaintiff lived. Rentz v. Collins, 51 Ga. App. 782, 181 S.E. 678 (1935).

Evidence sufficient to prove damages as compensation for injury. See State Farm Mut. Auto. Ins. Co. v. Chastain, 167 Ga. App. 822, 307 S.E.2d 717 (1983).

Jury Instructions

Court must instruct jury on various elements of damages claimed.

- When several different elements of damage are claimed, it is error requiring the grant of a new trial for the judge to fail in the judge's charge to the jury to give them any rule for estimating the damages claimed; and this is true notwithstanding no written request for such charge is made by the defendant. Southeastern Greyhound Lines v. Hancock, 71 Ga. App. 471, 31 S.E.2d 59 (1944).

- When there was no evidence from which the jury could arrive at an estimate as to the plaintiff's alleged decreased capacity to earn money, the court erred in charging the jury as to the right of the plaintiff to recover permanent damages because of decreased earnings. Berry v. Jowers, 59 Ga. App. 24, 200 S.E. 195 (1938).

In a suit for damages on account of personal injuries resulting from a tort, when the petition alleges that the ability of the plaintiff to earn money has been decreased, it is error for the judge to charge the jury on this element of damages, unless there is some evidence upon which the jury can base with reasonable certainty a finding as to the amount of such damages. Atlanta & W. Point R.R. v. Hemmings, 66 Ga. App. 881, 19 S.E.2d 787 (1942).

- The testimony of the plaintiff, at the trial more than 20 months after the accident, that the plaintiff received permanent injuries and that the plaintiff's back still suffered from the injuries authorized the charge as to compensation for future pain and suffering. Moffett v. McCurry, 84 Ga. App. 853, 67 S.E.2d 807 (1951).

Charge was proper to show that measure of damages for injury to automobile is difference between market value before accident and afterwards, and that the amount expended for repairs is an item or circumstance which the jury might consider in determining the damages. Moffett v. McCurry, 84 Ga. App. 853, 67 S.E.2d 807 (1951).

- A charge which contained the general rule as to the measure of damages, when there was no request to charge more fully on the subject, is sufficient. Seaboard Air-Line Ry. v. Bishop, 132 Ga. 37, 63 S.E. 785 (1909); City of Atlanta v. Whitley, 24 Ga. App. 411, 101 S.E. 2 (1919).

- When an action was brought in this state for injuries in another state, it was error to charge that the choice of bringing the action away from home was a circumstance to be considered by the jury. Mason v. Nashville, C. & St. L. Ry., 135 Ga. 741, 70 S.E. 225, 33 L.R.A. (n.s.) 280 (1911).

RESEARCH REFERENCES

Am. Jur. 2d.

- 22 Am. Jur. 2d, Damages, § 15 et seq.

- 25 C.J.S., Damages, §§ 3 et seq., 25 et seq.

- Measure of damages for destruction of or injury to commercial vehicle, 4 A.L.R. 1350; 169 A.L.R. 1074.

Cost of building or repairs thereto as necessary or proper element in fixing damages for its destruction or injury, 7 A.L.R. 277.

Measure of damages for loss of earning capacity of person engaged in business for himself, 9 A.L.R. 510; 27 A.L.R. 430; 63 A.L.R. 142; 122 A.L.R. 297.

Evidence of intemperate habits on question of damages from death or personal injuries, 9 A.L.R. 1405.

Compensation from other source as precluding or reducing recovery against one responsible for personal injury or death, 18 A.L.R. 678; 95 A.L.R. 575.

Damages for wrongful death of spouse as affected by personal relations of the spouses, or the marital misconduct of either spouse, 18 A.L.R. 1409; 90 A.L.R. 920.

Right to recover for mental pain and anguish alone, apart from other damages, 23 A.L.R. 361; 44 A.L.R. 428; 56 A.L.R. 657.

Damages recoverable by conditional vendee against third person as affected by credit on contract of insurance carried by vendor, 32 A.L.R. 632.

Measure of damages for destruction of or damage to automobile other than commercial vehicle, 32 A.L.R. 711; 78 A.L.R. 917; 169 A.L.R. 1100.

Right of landowner to recover for personal injuries incidental to trespass on his land, 32 A.L.R. 921.

Allowance as damages for conversion of commodities or chattels of fluctuating value, of increase in market value after the time of conversion, 40 A.L.R. 1282; 87 A.L.R. 817.

Applicability of "contemplation of parties" rule in tort action, 48 A.L.R. 318.

Excessive or inadequate damages for personal injuries resulting in death, 48 A.L.R. 817; 49 A.L.R.3d 934.

Pain incident to surgical operation or medical treatment as an element of damages for personal injuries, 51 A.L.R. 1122.

Pecuniary value of services rendered by deceased without legal obligation as element of damages for his death, 53 A.L.R. 1102.

Injury to credit as element of damages for wrongful attachment, 54 A.L.R. 451.

Measure of damages for failure, delay, or mistake in transmitting or delivering telegram in cipher, 55 A.L.R. 1146.

Damages recoverable by owner or occupier of surface on account of subsidence due to mining operations, 56 A.L.R. 310.

Right of one liable for death or injury to have damages awarded in judgment against him paid over to physician or nurse for medical attention given to injured or deceased person, 66 A.L.R. 711.

Necessity of alleging permanency of injury in order to recover damages as for a permanent injury, 68 A.L.R. 490.

Damages for wrongful removal or destruction of fixtures, 69 A.L.R. 914.

"Sentimental" losses, including mental anguish, loss of society, and loss of marital, filial, or parental care and guidance, as elements of damages in action for wrongful death, 74 A.L.R. 11.

Distinction between uncertainty as to whether substantial damages resulted and uncertainty as to amount, 78 A.L.R. 858.

Duty to mitigate damages, 81 A.L.R. 282.

Net benefit or advantage in respect of particular item of damage from personal injury or death as reducing recovery on account of another and distinct item, 82 A.L.R. 1423.

Instruction regarding measurement of damages for pain and suffering, 85 A.L.R. 1010.

Shortening of plaintiff's life expectancy as result of injury as element of damages recoverable by person injured, 97 A.L.R. 823; 131 A.L.R. 1351.

Excessiveness of verdict in action by person injured for injuries not resulting in death (for years 1926 to 1935), 102 A.L.R. 1125; 16 A.L.R.2d 3.

Rate of discount to be considered in computing present value of future earnings or benefits lost on account of death or personal injury, 105 A.L.R. 234.

Damage incident to travel on detour as part of recovery for wrongfully preventing or impeding use of highway, 106 A.L.R. 1305.

Amount recoverable from one liable for damage to building as affected by building regulations applicable to restoration or repair of damaged buildings, 107 A.L.R. 1122.

Determination of quantum of damages for injury to property recoverable against defendant whose wrong concurred with act of God, 112 A.L.R. 1084.

Necessity of expert evidence to warrant submission to jury of issue as to permanency of injury or as to future pain and suffering, or to sustain award of damages on that basis, 115 A.L.R. 1149.

Libel or slander: propriety, where actual damages are not shown, of instructions on compensatory damages which do not embody jury's right to award small or nominal damages, 122 A.L.R. 853.

Measure of damages for injury to land caused by obstruction of highway, 128 A.L.R. 780.

Presumption and burden of proof regarding mitigation of damages, 134 A.L.R. 242.

Amount of recovery in tort action against servant or other person who was the active tort-feasor as limit of amount recoverable against one responsible only derivatively, 141 A.L.R. 1168.

Damages on account of loss of earnings or impairment of earning capacity due to wife's personal injury as recoverable by her or by her husband, 151 A.L.R. 479.

Condition and measure of damages in tort action for fraud inducing loan, 162 A.L.R. 698.

Measure of damages for death in action for benefit of decedent's estate, 163 A.L.R. 253.

Division among beneficiaries of amount awarded by jury or received in settlement upon account of wrongful death, 171 A.L.R. 204.

Measure of damages for injury to or destruction of growing crop, 175 A.L.R. 159.

Credit for upkeep or other expense in computing damages for use or detention of property in replevin, 7 A.L.R.2d 933.

Damages for diminution of value of use of the property as recoverable for a permanent nuisance affecting real property, 10 A.L.R.2d 669.

Loss of profits of a business in which plaintiff is interested as a factor in determining damages in action for personal injuries, 12 A.L.R.2d 288.

Changes in cost of living or in purchasing power of money as affecting damages for personal injuries or death, 12 A.L.R.2d 611; 21 A.L.R.4th 21.

Measure of damages for conversion or loss of, or damage to, personal property having no market value, 12 A.L.R.2d 902.

Validity, construction, and application of statute limiting damages recoverable for defamation, 13 A.L.R.2d 277.

Proof of prospective earning capacity of student or trainee, or of its loss, in action for personal injury or death, 15 A.L.R.2d 418.

Effect of board or lodging furnished to injured person in connection with hospital or nursing care on damages recoverable in personal injury action, 18 A.L.R.2d 659.

Recovery by contractor or artisan, suing for breach of warranty, of damages for loss of good will occasioned by use in his business of unfit materials, 28 A.L.R.2d 591.

Measure of damages for tenant's failure to surrender possession of rented premises, 32 A.L.R.2d 582.

Expense incurred by injured party in remedying temporary nuisance or in preventing injury as element of damages recoverable, 41 A.L.R.2d 1064.

Measure and elements of damages recoverable for attorney's negligence with respect to maintenance or prosecution of litigation or appeal, 45 A.L.R.2d 62.

Receipt of compensation from consumption of accumulated employment leave, vacation time, sick leave allowance, or the like, as affecting recovery against tort-feasor, 52 A.L.R.2d 1451.

Cross-examination of plaintiff in personal injury action as to his previous injuries, physical condition, claims, or actions, 69 A.L.R.2d 593.

Recovery of nominal damages in a wrongful death action, 69 A.L.R.2d 628.

Measure of evicted tenant's recovery for improvements made by him on premises for lease uses, 71 A.L.R.2d 1104.

Measure of damages for destruction of or injury to airplane, 73 A.L.R.2d 719.

Pleading matter in mitigation of damages in tort action other than libel and slander, 75 A.L.R.2d 473.

Collateral source rule: receipt of public or private pension as affecting recovery against a tortfeasor, 75 A.L.R.2d 885.

Measure and elements of damages, in action other than one against a carrier, for conversion, injury, loss, or destruction of livestock, 79 A.L.R.2d 677.

Pension, retirement income, social security payments, and the like, of deceased, as affecting recovery in wrongful death action, 81 A.L.R.2d 949.

Admissibility of evidence of plaintiff's or decedent's drawing from partnership or other business as evidence of earning capacity, in action for personal injury or death, 82 A.L.R.2d 679.

What law governs the distribution, apportionment, or disposition of damages recovered for wrongful death, 92 A.L.R.2d 1129.

Conflict of laws as to measure or amount of damages in death actions, 92 A.L.R.2d 1180.

Recovery of prejudgment interest on wrongful death damages, 96 A.L.R.2d 1104.

Measure of damages where vendor, after execution of contract of sale but before conveyance of property, removes part of property contracted for, 97 A.L.R.2d 1220.

Measure of damages for wrongful removal of earth, sand, or gravel from land, 1 A.L.R.3d 801.

Measure and elements of damages for killing or injuring dog, 1 A.L.R.3d 997.

Amount of damages for killing or injuring dog, 1 A.L.R.3d 1022.

Collateral source rule: injured person's receipt of statutory disability unemployment benefits as affecting recovery against tort-feasor, 4 A.L.R.3d 535.

Right of tortfeasor initially causing injury to recover indemnity or contribution from medical attendant causing new injury or aggravating injury in course of treatment, 8 A.L.R.3d 639.

Validity, enforceability, and effect of provision in seamen's employment contract stipulating the maximum recovery for scheduled personal injuries, 9 A.L.R.3d 417.

Vendor and purchaser: recovery for loss of profits from contemplated sale or use of land, where vendor fails or refuses to convey, 11 A.L.R.3d 719.

"Out of pocket" or "benefit of bargain" as proper rule of damages for fraudulent representations inducing, contract for the transfer of property, 13 A.L.R.3d 875.

Tenant's right to damages for landlord's breach of tenant's option to purchase, 17 A.L.R.3d 976.

Sufficiency of evidence, in personal injury action, to prove future pain and suffering and to warrant instructions to jury thereon, 18 A.L.R.3d 10.

Sufficiency of evidence, in personal injury action, to prove impairment of earning capacity and to warrant instructions to jury thereon, 18 A.L.R.3d 88.

Sufficiency of evidence, in personal injury action, to prove permanence of injuries and to warrant instructions to jury thereon, 18 A.L.R.3d 170.

Recovery for loss of use of motor vehicle damaged or destroyed, 18 A.L.R.3d 497.

Measure of damages for fraudulently inducing employment contract, 24 A.L.R.3d 1388.

Effect of advance payment by tort-feasor's liability insurer to injured claimant, 25 A.L.R.3d 1091.

Pretrial discovery of defendant's financial worth on issue of damages, 27 A.L.R.3d 1375.

Damages for wrongful termination of automobile dealership contracts, 54 A.L.R.3d 324.

Injury to credit standing, reputation, solvency, or profit potential as elements of damage resulting from wrongful execution against business property, 55 A.L.R.3d 911.

Recovery for mental anguish or emotional distress, absent independent physical injury, consequent upon breach of contract in connection with sale of real property, 61 A.L.R.3d 922.

Recovery of damages for emotional distress resulting from discrimination because of sex or marital status, 61 A.L.R.3d 944.

Duty of injured person to submit to surgery to minimize tort damages, 62 A.L.R.3d 9.

Duty of injured person to submit to nonsurgical medical treatment to minimize tort damage, 62 A.L.R.3d 70.

Measure and elements of damages in wife's action for loss of consortium, 74 A.L.R.3d 805.

Recovery, in action for benefit of decedent's estate in jurisdiction which has both wrongful death and survival statutes, of value of earnings decedent would have made after death, 76 A.L.R.3d 125.

Collateral source rule: receipt of public relief or gratuity as affecting recovery in personal injury action, 77 A.L.R.3d 366.

Collateral source rule: injured person's hospitalization or medical insurance as affecting damages recoverable, 77 A.L.R.3d 415.

Right of injured party to award of compensatory damages or fine in contempt proceedings, 85 A.L.R.3d 895.

Cost of future cosmetic plastic surgery as element of damages, 88 A.L.R.3d 117.

Sufficiency of evidence to prove future medical expenses as result of injury to head or brain, 89 A.L.R.3d 87.

Measure of damages for injury to or destruction of shade or ornamental tree or shrub, 95 A.L.R.3d 508.

Assault: criminal liability as barring or mitigating recovery of punitive damages, 98 A.L.R.3d 870.

Per diem or similar mathematical basis for fixing damages for pain and suffering, 3 A.L.R.4th 940.

Excessiveness or adequacy of damages awarded for injuries to, or conditions induced in, sexual organs and processes, 13 A.L.R.4th 183.

Excessiveness or adequacy of damages awarded for injuries to legs and feet, 13 A.L.R.4th 212.

Excessiveness or adequacy of damages awarded for injuries to head or brain, or for mental or nervous disorders, 14 A.L.R.4th 328.

Excessiveness or adequacy of damages awarded for injuries to, or conditions induced in, circulatory, digestive, and glandular systems, 14 A.L.R.4th 539.

Excessiveness or adequacy of damages awarded for injuries to back, neck, or spine, 15 A.L.R.4th 294.

Excessiveness or adequacy of damages awarded for injuries to, or conditions induced in, respiratory system, 15 A.L.R.4th 519.

Propriety of taking income tax into consideration in fixing damages in personal injury or death action, 16 A.L.R.4th 589.

Loss of enjoyment of life as a distinct element or factor in awarding damages for bodily injury, 34 A.L.R.4th 293.

Provocation as basis for mitigation of compensatory damages in actor for assault and battery, 35 A.L.R.4th 947.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in farming, ranching, or agricultural labor, 46 A.L.R.4th 220.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in trades and manual occupations, 47 A.L.R.4th 134.

Excessiveness and adequacy of damages for personal injuries resulting in death of minor, 49 A.L.R.4th 1076.

Excessiveness or adequacy of damages awarded for personal injuries resulting in death of persons engaged in professional, white-collar, and nonmanual occupations, 50 A.L.R.4th 787.

Validity of verdict awarding medical expenses to personal injury plaintiff, but failing to award damages for pain and suffering, 55 A.L.R.4th 186.

Excessiveness or adequacy of damages awarded for noneconomic loss caused by personal injury or death of spouse, 61 A.L.R.4th 309.

Excessiveness or adequacy of damages awarded for parents' noneconomic loss caused by personal injury or death of child, 61 A.L.R.4th 413.

Right of tortfeasor initially causing injury to recover indemnity or contribution from medical attendant aggravating injury or causing new injury in course of treatment, 72 A.L.R.4th 231.

Measure and elements of damages for pollution of well or spring, 76 A.L.R.4th 629.

Validity, construction, and effect of statute limiting amount recoverable in dram shop action, 78 A.L.R.4th 542.

Medical malpractice: measure and elements of damages in actions based on loss of chance, 81 A.L.R.4th 485.

Measure and elements of damages recoverable for attorney's negligence in preparing or conducting litigation - Twentieth Century cases, 90 A.L.R.4th 1033.

Plaintiff's rights to punitive or multiple damages when cause of action renders both available, 2 A.L.R.5th 449.

Refusal of medical treatment on religious grounds as affecting right to recover for personal injury or death, 3 A.L.R.5th 721.

Infliction of emotional distress: toxic exposure, 6 A.L.R.5th 162.

Liability of insurer, or insurance agent or adjuster, for infliction of emotional distress, 6 A.L.R.5th 297.

Excessiveness or inadequacy of punitive damages in cases not involving personal injury or death, 14 A.L.R.5th 242.

Liability policy coverage for insured's injury to third party's investments, anticipated profits, good will, or the like, unaccompanied by physical property damage, 18 A.L.R.5th 187.

Necessity of expert testimony on issue of permanence of injury and future pain and suffering, 20 A.L.R.5th 1.

Sufficiency of evidence to prove future medical expenses as result of injury to back, neck, or spine, 26 A.L.R.5th 401.

Damages for wrongful termination of franchise other than automobile dealership contracts, 40 A.L.R.5th 57.

Valuing damages in personal injury actions awarded for gratuitously rendered nursing and medical care, 49 A.L.R.5th 685.

Excessiveness or adequacy of damages awarded for injuries to head or brain, 50 A.L.R.5th 1.

Excessiveness or adequacy of damages awarded for injuries to nerves or nervous system, 51 A.L.R.5th 467.

Excessiveness or adequacy of damages for wrongful termination of at-will employee under state law, 86 A.L.R.5th 397.

Limitation of liability of air carrier for personal injury or death, 91 A.L.R. Fed. 547.

Action in replevin for recovery of dog or cat, 85 A.L.R.6th 429.