Hill Grocery Co. v. Caldwell

• Citation: 99 So. 354,211 Ala. 34
• Decision Date: 17 January 1924
• Docket Number: 6 Div. 26.
• Parties: HILL GROCERY CO. v. CALDWELL.
• Court: Supreme Court of Alabama

99 So. 354

211 Ala. 34

HILL GROCERY CO. v. CALDWELL.

6 Div. 26.

Supreme Court of Alabama

January 17, 1924

Rehearing Denied Feb. 7, 1924.

Appeal from Circuit Court, Jefferson County; Dan A. Greene, Judge.

Action for damages growing out of an automobile collision by W. D Caldwell against the Hill Grocery Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Stokely Scrivner, Dominick & Smith, of Birmingham, for appellant.

Percy Benners & Burr, of Birmingham, for appellee.

THOMAS J.

The suit arose out of an automobile collision, and the case was submitted to the jury on the count for simple negligence.

Demurrer to the several counts being overruled, a plea of the general issue, in "short by consent," was interposed. The claim of personal injury was eliminated on the trial by plaintiff testifying:

"Just as I cleared the street car tracks, something struck my car and just knocked it around towards the side. *** It jolted me up; didn't hurt me. Did not have any physicial hurt on me and I don't claim any." And damages for deprivation of the use of the automobile during the time it was being repaired were not supported by the evidence.

Questions challenged by assignments of error are rulings on the admission of evidence, and the refusal of charges requested in writing by the defendant.

The plaintiff, as a witness in his own behalf, testified that he owned the automobile that was damaged by the collision with defendant's "truck," had purchased it as a new car, and "hadn't had it quite a year"; and was asked, "What was the original cost of it [the car]?" Against the objection to the question, "on the ground that it was not proper measure of damages," and after exception was reserved, he answered, "$3,900." Motion to exclude the answer on the same grounds was overruled, and exception was duly reserved to that ruling.

Other questions and answers permitted over due objection and exception of the defendant were:

"Q. What luck did you have with using it after you got it back? I mean by 'luck,' what was the actual experience in using it? Was it as good as it was before? A. It was continually in the garage. I never could get any service from it.

"Q. Did you, after trying to use it, afterwards dispose of it? A. Yes, sir; I disposed of it.

"Q. What was the best price you could get for it? A. $650."

Were the foregoing questions and answers pertinent to the issues of the market value of the car before and after the collision, and the damage caused by the collision?

It is accepted by counsel that the rule relating to the measure of damages is the difference between the market value of the automobile immediately before the collision causing the damages complained of, and its market value immediately thereafter; the automobile not being rendered worthless by the collision. Byars v. James, 208 Ala. 390, 394, 94 So. 536; L. & N. R. R. Co. v. Mertz, Ibach & Co., 149 Ala. 561, 43 So. 7; Welch v. Evans, etc., Co., 189 Ala. 548, 66 So. 517; B. R. L. & P. Co. v. Sprague, 196 Ala. 148, 72 So. 96; Burnett & Bean v. Miller, 205 Ala. 606, 88 So. 871; Montgomery, etc., Co. v. Hastings, 138 Ala. 432, 438, 35 So. 412; Krebs Mfg. Co. v. Brown, 108 Ala. 508, 18 So. 659, 54 Am. St. Rep. 188; Ballanger v. Shumate, 10 Ala. App. 329, 65 So. 416; N. A. T. Co. v. McNeil, 17 Ala. App. 317, 85 So. 568; Thompson v. Pollock Dry Goods Co., 18 Ala. App. 326, 92 So. 22. That is to say, in a proper case, the reasonable costs of putting the damaged property in the condition in which it was before it was injured (if that were practicable), with interest from the date of the injury to that of the trial (Galveston, etc., Co. v. Levy, 45 Tex.Civ.App. 373, 100 S.W. 195), "to effect the law's purpose to fairly compensate for the damnifying result of the wrong committed" (B. R. L. & P. Co. v. Sprague, supra). In National Surety Co. v. Citizens' L., H. & P. Co., 201 Ala. 456, 459, 78 So. 834, it was said that-

"Evidence of value is necessarily opinion evidence, and that it is not conclusive on courts and juries even when without conflict. Andrews v. Frierson, 144 Ala. 470, 39 So. 512; Sellers v. Knight, 185 Ala. 96, 64 So. 329. It follows that the fair market value of the property in controversy is the conclusion of such value by the jury drawn from the evidence, opinion and positive, shedding light thereon. Opinion evidence of a fair market value cannot be said to be the only evidence admissible to prove such value. Hadley v. Board, etc., Passaic County, 73 N. J. Law, 197, 62 A. 1132; Concord R. Co. v. Greely Co., 23 N.H. 237, 242; Patterson v. Broom Co., 3 Dill. 465, Fed. Cas. No. 10, 829."

See the discussion of damages to personal property and the proof of the value or amount thereof contained in F. W. Bromberg & Co. v. Norton, 208 Ala. 117, 119, 120, 93 So. 837; B. R. L. & P. Co. v. Hinton, 157 Ala. 630, 47 So. 576.

In the oral charge the jury were instructed that-

If plaintiff was entitled to recover at all, he was entitled to recover "any damages which proximately resulted from the collision. That would mean the difference in the value of the automobile immediately before it was struck and immediately after it was struck. Now, that is a question of fact for the jury to decide. There is testimony in here of the cost of that machine new, some 14 or 15 or 12 months, or whatever time Dr. Caldwell bought it before that time, and also what it sold for some 4 or 5 or 6 months after that time. That is just like all the evidence; it goes before you to be considered in connection with all the other evidence as to the difference in the value of the machine immediately before. You take into consideration the amount of use it had gone through, and the condition just after that time under the evidence in the case. The sale price and the purchase price are merely to indicate to the jury some method by which they can arrive at the difference in value, in connection with all the other evidence. Now, there is some testimony here as to the cost or [of] repairs. That is not conclusive by any means, but it may be

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