In all cases, necessary expenses consequent upon an injury are a legitimate item in the estimate of damages.
(Orig. Code 1863, § 3000; Code 1868, § 3013; Code 1873, § 3068; Code 1882, § 3068; Civil Code 1895, § 3908; Civil Code 1910, § 4505; Code 1933, § 105-2004.)
Law reviews.- For article advocating that payment of attorney's fees be assigned to the losing party, see 18 Ga. B. J. 439 (1956).
JUDICIAL DECISIONS
Section applicable only to tort actions.
- No cause of action was set out in the paragraphs of the plaintiff's amendment, which sought a recovery of $500 as attorney's fees, under this section, which provides that necessary expenses consequent upon the injury done are legitimate items in the estimation of damages, because this section applies only in tort cases. Roberts v. Scott, 212 Ga. 87, 90 S.E.2d 413 (1955).
Attorney's fees.
- In a suit for malicious prosecution, a charge that "reasonable counsel fees and expenses of defending the criminal case would be legitimate items on which damages could be awarded if the plaintiff is entitled to recover" was not erroneous. Sloan v. Glaze, 72 Ga. App. 415, 33 S.E.2d 846 (1945).
When the plaintiffs have only set out a complaint in equity, they are not entitled to an award of attorney fees under O.C.G.A. § 13-6-11 or O.C.G.A. § 51-12-7. Glynn County Fed. Employees Credit Union v. Peagler, 256 Ga. 342, 348 S.E.2d 628 (1986).
When a plaintiff's permissively joined actions against an insurance company to recover under a contract of insurance and against an insurance agent and agencies based on tort, breach of agency contract, and respondeat superior could have been brought separately, the action against the insurance company was an "underlying" action for purposes of the rule allowing recovery, as real damages, of attorney fees and expenses of litigation incurred as the result of a defendant's malfeasance or misfeasance. Atlanta Woman's Club, Inc. v. Washburne, 215 Ga. App. 201, 450 S.E.2d 239 (1994).
Although the second corporation argued that the company and the owners' attorneys' fees, related to prior litigation and amounting to $3.8 million, were not recoverable as damages, the company and the owners' attorneys' fees, like its other damages, were directly traceable to the second corporation's misconduct, and lawyers' fees incurred in a related action, but caused by a defendant's wrongdoing, could be taken into consideration by the jury in estimating damages. The company and the owners did not have to show bad faith or stubborn litigiousness to recover such fees and O.C.G.A. § 51-12-7 provided that in all cases, necessary expenses consequent upon the injury done were a legitimate item in the estimate of damages. Douglas Asphalt Co. v. Qore, Inc., F. Supp. 2d (S.D. Ga. May 20, 2010).
Costs of related litigation.
- When a homeowner sued a realtor for alleged fraud and malpractice in the sale of the homeowner's condominium after the homeowner had sued the buyers on their note to the homeowner, these were separate causes of action against separate parties not in privity with each other, in separate counties, and the absence of a finding of bad faith on the part of the buyers in not paying their note did not preclude a finding that the plaintiff was entitled to attorney's fees and expenses of litigation when such costs were actual damages proximately caused by the realtors' malpractice and fraud. Marcoux v. Fields, 195 Ga. App. 573, 394 S.E.2d 361 (1990).
Expenses not recoverable in slander suit.
- This section does not apply to a suit for slander. Sammons v. Wilson, 20 Ga. App. 241, 92 S.E. 950 (1917).
Expenses of injury in another state.
- Expenses incurred because of an injury to one's wife in another state are recoverable, and may include the costs of subsistence. Nashville, C. & S.L. Ry. v. Hubble, 139 Ga. 300, 76 S.E. 1009 (1913).
Expenses of providing shelter.
- When a contractor is wrongfully deprived of the contractor's shelters for the contractor's men, the expense of providing similar shelter can be recovered. Carlisle v. Callahan, 78 Ga. 320, 2 S.E. 751 (1886), overruled on other grounds, Thigpen v. Batts, 199 Ga. 161, 33 S.E.2d 424 (1945).
Jury may consider cost of replacement item in determining damages.
- The amount expended for a replacement vehicle to perform the services usually performed by the damaged vehicle may be taken into consideration by the jury in determining what damages the plaintiff is entitled to for hire while rendered incapable of use or loss of use. Moffett v. McCurry, 84 Ga. App. 853, 67 S.E.2d 807 (1951).
Medical expenses.
- Under this section, expenses for physician's bills, in order to furnish an element of recovery for an injury, must be shown to have been the result of the injury and rendered necessary by it. Georgia Ry. & Elec. Co. v. Gilleland, 133 Ga. 621, 66 S.E. 944 (1909).
The necessary and required hospital, medical, and other expenses consequent upon the negligence of another party are recoverable under this section. Old Dominion Freight Line v. Martin, 153 Ga. App. 135, 264 S.E.2d 585 (1980).
When no evidence is presented from which the jury can ascertain except by mere speculation and conjecture that the plaintiffs would ever have future medical expenses, a charge on this subject is erroneous. Wayco Enters., Inc. v. Crews, 155 Ga. App. 775, 272 S.E.2d 745 (1980).
When a physician testified that the plaintiff's neck pain was chronic, i.e., continuing, and was susceptible to reinjury, and that the physician would recommend surgery if the plaintiff failed to improve through physical therapy alone, the jury was not left to determine the need for future surgery based on conjecture and speculation alone. Food Lion, Inc. v. Williams, 219 Ga. App. 352, 464 S.E.2d 913 (1995).
Future medical expenses.- Future medical expenses proximately caused by the defendant's negligence are a legitimate item of damages. In awarding damages for future medical expenses, the court must consider that it is making a present cash award for expenses to be incurred in the future. MacDonald v. United States, 900 F. Supp. 483 (M.D. Ga. 1995).
Award for future pain and suffering.- Since the plaintiff's pain and suffering will continue in the future, the plaintiff is entitled to damages for the future pain and suffering, the standard for such award being the enlightened conscience of the judge. Since the plaintiff is receiving an award for damages not yet suffered, the judge is to take that into consideration when arriving at an amount. MacDonald v. United States, 900 F. Supp. 483 (M.D. Ga. 1995).
Repairs to damaged automobile.
- When an automobile is damaged in a collision, repairs incurred as a result thereof, not in excess of the original value of the machine, are recoverable. Savannah Elec. Co. v. Crawford, 130 Ga. 421, 60 S.E. 1056 (1908); Lamon v. Perry, 33 Ga. App. 248, 125 S.E. 907 (1924); Olliff v. Howard, 33 Ga. App. 778, 127 S.E. 821 (1925).
Recovery of married woman's expenses.
- A married woman cannot recover expenses arising from a personal injury, unless separated from her husband. Wrightsville & Tennille R.R. v. Vaughan, 9 Ga. App. 371, 71 S.E. 691 (1911).
Value of lost use of vehicle.
- The jury was authorized to find for the plaintiff, in addition to the difference in the market value of the vehicle before the injury and afterwards, the value of the lost use of the vehicle while it was being repaired, provided that the sum of both elements did not exceed the value of the automobile before the injury with interest thereon. Moffett v. McCurry, 84 Ga. App. 853, 67 S.E.2d 807 (1951).
Pleading of expenses.
- The different items of expenses should be pled separately. Central Ga. Power Co. v. Fincher, 141 Ga. 191, 80 S.E. 645 (1913).
Trial court erred in dismissing a real property purchaser's claims of negligent misrepresentation and promissory estoppel under O.C.G.A. § 13-3-44 as there was no requirement that the real property purchase agreement be enforceable for those claims to be actionable, and the agreement was enforceable at the time that it was made, such that reliance could have been had thereon; damages were properly pled as recovery under promissory estoppel could have been had for damages that were equitable and necessary to prevent injustice, and as to negligent misrepresentation, necessary expenses consequent upon an injury were recoverable under O.C.G.A. § 51-12-7. Hendon Props. v. Cinema Dev., LLC, 275 Ga. App. 434, 620 S.E.2d 644 (2005).
Proof of expenses necessary.
- Proof of the expenses growing out of damage received is always required to entitle a recovery therefor. Mayor of Savannah v. Waldner, 49 Ga. 316 (1873).
It is sufficient to show that the expenses have been incurred, even though the expenses are not paid. Murphey v. Northeastern Constr. Co., 31 Ga. App. 715, 121 S.E. 848 (1924); Allen v. Southern Ry., 33 Ga. App. 209, 126 S.E. 722 (1924).
Jury instructions.
- Such a charge is proper, although there is no direct testimony that such expenses are reasonable. Georgia Ry. & Elec. Co. v. Tompkins, 138 Ga. 596, 75 S.E. 664 (1912).
A charge that the plaintiff was entitled to recover reasonable expenses incurred for medical attention on account of injuries was equivalent to a charge of this section. Orange Crush Bottling Co. v. Smith, 35 Ga. App. 92, 132 S.E. 259 (1926).
Cited in Anderson v. Hilton & Dodge Lumber Co., 121 Ga. 688, 49 S.E. 725 (1905); Lawrence v. Atlanta Gas Light Co., 49 Ga. App. 444, 176 S.E. 75 (1934); Atlanta, Birmingham & Coast R.R. v. Patterson, 73 Ga. App. 551, 37 S.E.2d 422 (1946); Copeland v. Carpenter, 206 Ga. 822, 59 S.E.2d 245 (1950); Porter v. Bland, 105 Ga. App. 703, 125 S.E.2d 713 (1962); Pennsylvania Thresherman & Farmers Mut. Cas. Ins. Co. v. Gardner, 107 Ga. App. 472, 130 S.E.2d 507 (1963); Partain v. Maddox, 131 Ga. App. 778, 206 S.E.2d 618 (1974); Aretz v. United States, 456 F. Supp. 397 (S.D. Ga. 1978); Davis v. Hospital Auth., 154 Ga. App. 654, 269 S.E.2d 867 (1980); Sam Finley, Inc. v. Barnes, 156 Ga. App. 802, 275 S.E.2d 380 (1980); City of Atlanta v. State Farm Fire & Cas. Co., 160 Ga. App. 822, 287 S.E.2d 665 (1982); Ivey v. Golden Key Realty, Inc., 200 Ga. App. 545, 408 S.E.2d 811 (1991); Nash v. Studdard, 294 Ga. App. 845, 670 S.E.2d 508 (2008).
RESEARCH REFERENCES
Am. Jur. 2d.
- 22 Am. Jur. 2d, Damages, § 133 et seq.
C.J.S.- 25 C.J.S., Damages, § 63 et seq.
ALR.
- Recovery of expenses for car or storage of property pending action of detinue or replevin, 43 A.L.R. 92.
Medical expense as item of damages in action for personal injury resulting in death, 54 A.L.R. 1077.
Future pain and suffering as element of damages for physical injury, 81 A.L.R. 423.
Determination of quantum of damages for injury to property recoverable against defendant whose wrong concurred with act of God, 112 A.L.R. 1084.
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.
Cost of hiring substitute or assistant during incapacity of injured party as item of damages in action for personal injury, 37 A.L.R.2d 364.
Right of wife to recover in individual capacity for medical expenses of husband injured by third person's negligence, 42 A.L.R.2d 843.
Right to recover as damages attorney's fees incurred in earlier litigation with a third person because of involvement therein through a tortious act of present adversary, 45 A.L.R.2d 1183.
Requisite proof to permit recovery for future medical expenses as item of damages in personal injury action, 69 A.L.R.2d 1261.
Measure of evicted tenant's recovery for improvements made by him on premises for lease uses, 71 A.L.R.2d 1104.
Damages for personal injury or death as including value of care in nursing gratuitously rendered, 90 A.L.R.2d 1323.
Necessity and sufficiency, in personal injury or death action, of evidence as to reasonableness of amount charged or paid for accrued medical, nursing, or hospital expenses, 12 A.L.R.3d 1347.
Attorney's fees as element of damages in action for false imprisonment or arrest, or for malicious prosecution, 21 A.L.R.3d 1068.
Medical expenses due to injury to wife as recoverable by her or by husband, 21 A.L.R.3d 1113.
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, 41 A.L.R.3d 7.
Validity of statute allowing attorney's fee to successful claimant but not to defendant, or vice-versa, 73 A.L.R.3d 515.
Bailee's liability for bailor's expense of recovering stolen object of bailment, 80 A.L.R.3d 264.
Sufficiency of evidence to prove future medical expenses as result of injury to head or brain, 89 A.L.R.3d 87.
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.
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.
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.