Broadie v. Randall
| Decision Date | 07 July 1923 |
| Docket Number | 24,596 |
| Citation | 216 P. 1103,114 Kan. 92 |
| Parties | B. T. BROADIE, Appellee, v. BENTLEY RANDALL, Appellant |
| Court | Kansas Supreme Court |
Decided July, 1923.
Appeal from Clark district court; LITTLETON M. DAY, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. AUTOMOBILE--Disfigured by Scratching--Value Depreciated--Measure of Damages. Where a new automobile purchased by a dealer for resale is negligently disfigured by scratching and writing a name on the body of the car which penetrated the paint and varnish on it, a proper measure of damages for such injury is the difference in the value of the car immediately before and after the injury.
2. SAME--Rulings on Admission of Evidence. Rulings on the admission of evidence examined and held to be without material error.
3. SAME--Not a Quotient Verdict. The fact that the jury made two computations of the damages in a process by which each juror set down his individual estimate of the loss and divided the sum of all by twelve, but the results obtained were not adopted by the jury or agreed in advance to be adopted, and the amount finally found by the jury differed from either quotient, is not ground for granting a new trial.
F. C Price, and Robert C. Mayse, both of Ashland, for the appellant.
W. E. Broadie, of Kinsley, for the appellee.
B. T. Broadie, a dealer in automobiles, purchased a new seven-passenger sedan car at Wichita, and drove it to Ashland with the purpose of selling it to prospective customers. The car was dusty when he arrived and while the defendant Bentley Randall and others were looking at the car Randall wrote the word "Bentley" with the end of his finger on the side of the dusty car. Some of the letters of the name written were eight inches high and the writing was about eighteen inches long. After washing the car it was ascertained that in writing his name the defendant had scratched or penetrated through the varnish and paint so that the writing was still plainly discernable to one twenty-five feet distant from the car. Plaintiff undertook to repair the injury by having the car simonized, for which he paid about $ 40, but the scratching was so deep that the process did not obliterate the marks made by defendant. An action to recover damages for the injury to the car was instituted by Broadie which resulted in a verdict finding that the amount of the loss occasioned by defendant was $ 475. The defendant appeals and contends that the amount awarded was excessive and that the verdict was obtained by erroneous rulings of the court.
His principal complaint is that the proper rule for measuring the damages sustained was not given to the jury nor applied by the court. In an instruction the court told the jury:
Defendant insists that where property is injured but not destroyed the cost of repair or restoration is the correct measure of damages and so he contends that the cost of restoring the paint on that part of the car necessary to be repainted together with an allowance for the loss of the use of the car while it was being repainted was the only compensation to which plaintiff was entitled. The repainting of the disfigured part would not restore the car to its original condition but would be an obvious patch and blemish. Some of the witnesses said that the repainting of the entire car would be necessary and found that this could not be efficiently done except at the factory. Others said that even if that were done it would still be a repaired and renovated car which would make its market value much less than that of a new car which had never been injured, repaired or repainted. The rule of repair and restoration is not applicable where the property injured cannot be restored to its original condition. If the injury to the car had been the...
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