Carnes v. Ditzenberger

• Decision Date: 25 April 1933
• Docket Number: Case Number: 21644
• Citation: 1933 OK 249,21 P.2d 756,163 Okla. 146
• Parties: CARNES v. DITZENBERGER
• Court: Oklahoma Supreme Court

1933 OK 249

21 P.2d 756

163 Okla. 146

CARNES v. DITZENBERGER

Case Number: 21644

Supreme Court of Oklahoma

Decided: April 25, 1933

Syllabus

¶0 1. Automobiles--Action for Damages to Car Injured in Collision--Measure of Damages.

When an automobile has been damaged by the negligence of another person to the extent that it cannot be repaired, the measure of damages is the difference between the market value of the automobile before it was damaged and the value of the wreckage. It is improper to base the measure of damage on what the automobile could have been traded for on the purchase price of a new or other automobile.

2. Same--Question for Jury Whether Wrecked Car Is Beyond Repair.

Where there is a conflict of evidence as to whether a wrecked automobile is beyond repair, the question is one for determination by a jury, and the measure of damages is to be governed by the determination under proper instructions from the court.

3. Same--Instructions Held Erroneous.

In an action by the owner of an automobile to recover damages on account of injury to such automobile, alleged to have been caused by the negligence of another, where it is alleged the automobile was damaged beyond repair, it is error to instruct the jury to return a verdict for a definite sum, where the evidence is in conflict, either as to the market value of the automobile before it was damaged, or the value of the wreckage.

Appeal from Court of Common Pleas, Tulsa County; S. J. Clendenning, Judge.

Action by A. G. Ditzenberger against M. M. Carnes. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

A. E. Montgomery, for plaintiff in error.

G. E. Conway, for defendant in error.

RILEY, C. J.

¶1 This is an appeal from a verdict and judgment in favor of defendant in error, herein referred to as plaintiff, against plaintiff in error, in an action for damages growing out of a collision between two automobiles at a street intersection in the city of Tulsa.

¶2 In substance, plaintiff's petition alleges that while his automobile was being driven by his son and agent south on Elwood street, at a point where it intersects Third street, and after it had entered such intersection, defendant carelessly, negligently, and recklessly drove his automobile into said intersection from the west on Third street at a high and dangerous rate of speed, and without regard to the traffic, surface, and width of the streets, and struck plaintiff's automobile and demolished it, and so damaged it that it was beyond repair, to the damage of plaintiff in the sum of $ 300. Plaintiff also included a claim in the nature of exemplary damages in the sum of $ 1,000, but this item seems to have faded from the issues.

¶3 Plaintiff pleaded two sections of the traffic ordinance of the city of Tulsa relative to the rate of speed of vehicles being driven on the streets, and alleged violation thereof by defendant. In addition thereto plaintiff pleaded subsection 1, of section 29, of the ordinance, and alleged the violation thereof. In substance that subsection requires the driver of any vehicle involved in an accident, resulting in injury or death of any person or damage to any property, to immediately stop such vehicle at the scene, give his name and address, and the registration number of his vehicle to the person struck, or the driver or occupant of any vehicle collided with, and render any injured person reasonable assistance. Plaintiff also pleaded subsection 2, of said section, which requires the driver of any vehicle involved in an accident resulting in injury to person or property, to report the accident to the chief of police within 24 hours, such report to be made on form provided by the chief of police, and further provides that such report shall be without prejudice, and:

"The fact that they have been made shall be admissible in evidence to prove a compliance with this section, but no such report or any part thereof or statement contained therein shall be admissible in evidence for any purpose in any trial, civil or criminal, arising out of such accidents."

¶4 Plaintiff pleaded the violation of the latter subsection.

¶5 Defendant moved to strike out all the allegations with reference to the two subsections of section 29, above referred to, and all the allegations with reference to the violation thereof by defendant. The trial court at first sustained the motion to strike in part, but upon further consideration overruled the motion in its entirety. After an unsuccessful motion to strike certain other allegations, defendant demurred specially to the allegations above referred to as subsections 1 and 2, of said section 29, of the traffic ordinance. The demurrer being overruled, defendant answered by general denial and plea of contributory negligence. He also filed a cross-petition, in which he alleged, in substance, that the collision was due wholly to the negligence of the driver of plaintiff's car, and alleged certain damage and injury to himself and his property, and prayed for judgment against plaintiff in the total sum of $ 1,476.85. The particular items of his damage being alleged to be: Repairs to his automobile, $ 229.85; loss of the use of the automobile, 25 days, at $ 10 per day, $ 250.00; and for personal injuries to himself, $ 1,000.

¶6 The cause was tried to a jury and the court, among others, gave the following instruction:

"No. 7. You are instructed by the court, as a matter of law, that if you find from the evidence that the defendant while driving his Hudson car in an easterly direction upon West Third street at or about the intersection of Third and Elwood, drove his said car in a careless and negligent manner and ran into and collided with plaintiff's automobile, causing the damage and injury to said plaintiff's car, and you further find that said damage or injury was without fault on the part of the plaintiff, your verdict will be for the plaintiff and against the defendant in whatever amount you find to be the reasonable value of plaintiff's car, not to exceed the sum of $ 292.40."

¶7 The jury returned into court with a verdict for plaintiff in the sum of $ 75. Thereupon the court, without withdrawing instruction No. 7, above quoted, stated to the jury:

"Gentlemen of the jury, I am going to give you an additional instruction, in view of the verdict you have returned, and send you back to the jury room:

"You are instructed that if you find and believe from a fair preponderance of the evidence in this case that the collision which has been described to you by the evidence herein, which occurred at Third and Elwood in the city of Tulsa, Okla., was the direct and proximate result of negligence upon the part of the defendant, and you further find from the testimony that the plaintiff was

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