Averett v. Shircliff
| Decision Date | 01 September 1977 |
| Docket Number | No. 760750,760750 |
| Citation | 237 S.E.2d 92,218 Va. 202 |
| Court | Virginia Supreme Court |
| Parties | Henry T. AVERETT v. James V. SHIRCLIFF. Record |
Henry M. Sackett, III, Lynchburg (Edmunds, Williams, Robertson, Sackett, Baldwin & Graves, Lynchburg, on briefs), for plaintiff in error.
S. James Thompson, Jr., Lynchburg (Theodore J. Craddock; Caskie, Frost, Hobbs & Hamblen, Lynchburg, on brief), for defendant in error.
State Farm Mut. Auto. Ins. Co. (John B. Browder, Browder, Russell, Little, Morris & Butcher, Richmond, on brief), for appellant, amicus curiae.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
I'ANSON, Chief Justice.
Plaintiff, James V. Shircliff, instituted this action against the defendant, Henry T. Averett, to recover damages to his automobile, certain personal property in the trunk of the car, and the loss of use of his vehicle as a result of defendant's negligence in the operation of an automobile which collided with plaintiff's vehicle. The defendant admitted liability, and the case was tried by a jury on the issue of damages only. The jury returned a verdict for the plaintiff and awarded $4,000 as damages to the car and $160 for damages to the personal property in the car.
Plaintiff moved the court to set aside the jury's verdict and award him judgment as a matter of law in the amount of $8,059 on the ground that under the Restatement of the Law of Torts, § 928, 1 he "had a right to elect" as his measure of damages the difference in the value of the automobile before and after the accident. Alternately, plaintiff moved that he be awarded a new trial on the grounds that the court had erred in instructing the jury and in refusing to admit certain evidence.
The trial judge, in a written opinion, held that the Restatement rule as set forth in refused Instruction 1, which would have told the jury that plaintiff's measure of damages was the difference in the value of the car before and after the accident, was the proper measure of plaintiff's damages; and that he had erred in granting Instruction 1a which told the jury that the proper measure of plaintiff's damages was the difference between the fair market value of the damaged vehicle immediately before the accident and the fair market value of the vehicle immediately after the accident, with the exception that if the vehicle could be restored to its former condition by repairs and the cost of repairs would be less than the diminution in value because of the injury, then the measure of damages was the cost of repairs plus any applicable depreciation. Thereupon, the court set aside the jury's verdict and entered final judgment for the plaintiff in the amount of $8,059, awarding $7,899 as damages to the automobile and $160 as damages for the loss of the personal property in the vehicle.
Defendant contends that Instruction 1a set forth the general rule for determining the proper measure of damages to plaintiff's automobile; and that the trial court erred in adopting plaintiff's interpretation of the Restatement rule as the proper measure of damages, and in setting aside the verdict of the jury and entering final judgment for the plaintiff rather than awarding a new trial because the evidence was conflicting.
The evidence shows that on the night of September 20, 1973, plaintiff's 1973 Mercedes-Benz automobile was parked on Garmon Drive in the city of Lynchburg when it was struck from the rear by an automobile driven by the defendant. Plaintiff's automobile was damaged to the extent that it could not be driven away. At plaintiff's direction, the car was towed to the garage of Kenneth Hammersley Mercedes-Benz, Inc. (Hammersley) where it remained unrepaired for a considerable period because Kenneth Hammersley had advised plaintiff that the car could not be repaired.
Subsequently, Hammersley purchased the car from the plaintiff for $5,101, the highest of four bids obtained by the plaintiff, and proceeded to have the vehicle repaired. After the car was repaired, Kenneth Hammersley drove it to Florida and back. Approximately nine months after the accident, Hammersley sold the car to an acquaintance for $8,995.
Kenneth Hammersley testified that the automobile could not be restored by repairs to its value immediately before the accident. It was his opinion that the value of the automobile before the accident was between $13,000 and $13,500.
James N. Moore, service manager for Hammersley, testified the car was a "total loss" as a result of the accident and repairs could not restore it to its former condition. He stated, however, that after Hammersley purchased the automobile, every effort was made to repair and restore the car to its condition before the accident, but there were many defects in the car after repairs were made. Moore was unable to state the exact cost of the repairs because he said the repairs were made in several repair shops. He estimated, however, that the total cost of repairs was approximately $3,000.
Richard Fitzgerald, an appraiser and employee of Stokley Roberts, Inc., an independent automotive appraisal company, testified that the car could be repaired and restored to its former condition at a cost of $2,631.04, but there should be a 10% allowance for depreciation of the car's original value because it had been in an accident. Fitzgerald stated that he obtained several agreements to repair and restore the car to its former condition for $2,631.04, but no repair shop would sign them because plaintiff would not agree to have the car repaired. Fitzgerald also testified he saw the automobile after it had been repaired, and he could not tell that it had been in an accident.
Stokley Roberts, president of Stokley Roberts, Inc., testified that the automobile could be restored to its former condition for the amount of the estimates obtained by Fitzgerald, and that there should be a depreciation allowance from 7% to 10% because of the accident. He also said that the fair market value of the plaintiff's car in its unrepaired state was between $9,000 and $9,500.
Fitzgerald and Roberts agreed with Kenneth Hammersley that the car was in excellent condition before the accident, and its fair market value immediately before the accident ranged from $13,000 to $13,500.
The evidence further shows that the personal property in the car which was damaged as a result of the accident had an approximate value of $159, but defendant does not contend that the award of $160 for damages to the property in the trunk of the car was improper. Plaintiff presented no evidence of his claim for loss of the use of his automobile.
The question presented is what is the proper measure of damages in the present case. The precise issue has not heretofore been decided by us.
In Norview Cars v. Crews, 208 Va. 148, 149-50, 156 S.E.2d 603, 605 (1967), we quoted the general rule 2 with its exception and the Restatement rule. However, we found it unnecessary to adopt either the general rule and the contended for "special circumstances" exception thereto or the Restatement rule, "if there be, indeed, any real difference between the two rules," because of the stipulation plaintiff had entered into in the trial court.
In an annotation entitled "Damages Injury to Pleasure Vehicles," at 169 A.L.R. 1100 (1947), numerous cases are collected, and the general rule with its exception is stated and applied to variant circumstances. The author of the annotation, in summarizing the principles on the issue, states:
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