Konda v. Frumpkin

HAHN, J.,

pro

tem.

Defendants appeal from the judgment rendered against them in the sum of four hundred dollars for damages suffered by the plaintiff through injury to his automobile bus, occasioned by a collision with an automobile truck belonging to the defendants.

In their brief appellants concede that inasmuch as the evidence on the question of negligence is in marked conflict, the finding of the court on that issue is not subject to review on appeal.

The only ground urged for a reversal of the judgment is that there is no evidence of competent and material character to justify the amount of damages awarded. This defect, appellants urge, is due to the erroneous theory of counsel for plaintiff, and adopted by the court, that the rule for determining the amount of damages in actions of this character is the cost of making repairs or replacements, when the measure of damages as provided by section 3333 of the Civil Code, is the difference in the value of the automobile bus prior to the accident and immediately after the accident. It is pointed out that the only evidence offered by the plaintiff on this question was the testimony of witnesses as to the cost of the repairing or rebuilding of the damaged automobile.

The record discloses the fact that the ease was tried by both parties as far as the question of damages was concerned on the theory that the measure of damages was the cost of repairing the automobile bus.

It is true, as contended by appellants, that the usual measure of damages is the difference in diminished market value of the article damaged from its reasonable market value prior to the injury. However, in this state the rule has been established that in an action for damages of the

[386]

character involved here, the plaintiff makes a

prima facie

case when he shows the reasonable cost of repair, if his damaged automobile is susceptible of repair.

(Rhodes