Central of Georgia Railway Co. v. Cowart & Son , 38 Ga. App. 426 ( 1928 )

Stephens, J.

1. In a tort action brought in a justice’s court to recover for damage to personal property in an alleged amount, a plea therein-filed by the defendant, denying “liability to the plaintiff in any sum,” amounts to a denial of the amount of damage alleged by the plaintiff.

2. Testimony as to the market value of property being in the nature of opinion evidence, and its probative value being dependent on the character and intelligence of the witness and his opportunity of forming a correct judgment as to the value of the property, it is not conclusive upon the jury. Civil Code (1910), § 5875; Central Ga. Power Co. v. Cornwell, 139 Ga. 1 (76 S. E. 387, Ann. Cas. 1914A, 880); Anderson v. Anderson, 27 Ga. App. 513 (4) (108 S. E. 907); Widincamp v. McCall, 25 Ga. App. 733 (104 S. E. 642). It follows that, upon the trial of the case upon appeal to the superior court under these pleadings which put the amount of damage in issue, where the only evidence as to the amount of damage to the property 'in controversy was as to an amount equal to the cost of the property to the plaintiff and the market value of the property, which was in an amount equal to the amount of damage-sued for, it was error for the judge in the charge to eliminate from the consideration of the jury any issue as to the amount of damage claimed by the plaintiff, and to instruct the jury, in the event they found for the plaintiff, to find in the full amount sued for.

Judgment reversed.

Jenkins, P. J., and Bell, J., concur.