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NEWMAN v. BROWN ET AL.

December 15, 1955

MARGARET B. NEWMAN, RESPONDENT,
v.
IRA E. BROWN AND THE AMERICAN CASUALTY COMPANY, APPELLANTS.



The opinion of the court was delivered by: Stukes, Justice.

December 15, 1955.

This is an unusual negligence case. The defendants, now appellants, admit liability and, in effect, concede that the common carrier truck of the defendant Brown was negligently parked and, unoccupied, rolled into and against plaintiff's automobile, which was also unoccupied. It was crushed between the large truck and the concrete loading platform against which it was parked, and its front and rear ends were demolished. The codefendant is Brown's public liability insurance carrier. The only issue submitted to the trial jury was the amount of actual damages suffered by plaintiff on account of the extensive injuries to her automobile.

It was a 1951 model DeSoto which was purchased new by her in April 1951 for about $2,700.00. She used it for going to and from her work (her husband is an invalid) and it had been driven only a few times out of the City of Columbia and then for a distance of only twenty-five miles on the Sumter Highway. Plaintiff and another witness testified that it had been well cared for and was in new condition at the time of the accident on June 26, 1954. It had been driven a total of about 14,000 miles. After the accident she had it towed to the garage of the dealer from whom she had purchased it and it had not been repaired at the time of the trial in January 1955. Meanwhile she used a rented automobile.

An appraiser, who was employed in the case by the insurance company, testified for the defendants that he estimated the cost of repairs at $827.78 which did not include all new parts. The frame of the automobile was damaged and bent, but the witness thought it could be straightened. Another witness for the defendants was the service manager of the automobile agency from which plaintiff's car had been purchased. He estimated the repairs at $1,023.96, which provided for all new parts, including frame, which would put the car in first class condition; but the witness added on cross examination that it would not be worth as much as before the wreck. We quote from his testimony: "A wrecked car is always a wrecked car, regardless of where you carry it or try to trade it in, or anything else, it's a wrecked car." He further said that he did not want a wrecked car of any kind and if it were his he would trade it unrepaired, as it was worth only the salvage value. He estimated the latter at, quoting, "probably five or five hundred and fifty dollars, maybe." These witnesses estimated the time necessary to make the repairs at two weeks.

The jury returned verdict for the plaintiff of $2,283.00. On motion for new trial the court ordered such unless the plaintiff agreed to reduction of the verdict by the amount of $125.00, which plaintiff did and entered judgment in the sum of $2,158.00.

The first ground of appeal is the alleged excessiveness of the verdict. While the verdict is undoubtedly a full one, even as reduced by the trial judge by means of his order nisi, it is not such as to warrant reversal on appeal. For that it is necessary that a verdict be so excessive as to indicate that it was the result of prejudice, caprice, passion, or other consideration not found in the evidence. Likewise, a verdict of such a nature should, on motion, be set aside by the trial judge; but if he merely finds it to be excessive or unduly liberal, he has the power, and with it the responsibility, or setting it aside or reducing it by granting a new trial nisi. Vernon v. Atlantic Coast Line R. Co., 221 S.C. 376, 70 S.E.2d 862. See also, Anderson v. Elliott, S.C. 90 S.E.2d 367, and cases there cited.

A well considered case upon the measure of damages to an automobile is Coleman v. Levkoff, 128 S.C. 487, 122 S.E. 875. The rules of it were substantially followed in the trial of the case at bar in the following instructions to the jury:

"Now where you have a case in Court where an automobile is concerned, with reference to actual damages, and bear in mind that actual damages are simply those damages which in the law are designed to compensate a person for the losses that he or she has sustained, the theory being that where you compensate a person as actual damages, you would be putting him back in the same position as near as possible, that he or she was in before they were damaged. Now, where an automobile is involved, in order to arrive at what would be a fair amount to award one as actual damages, you should take into consideration from the evidence that you have heard, what was the reasonable market value of the automobile before the collision, what was the reasonable market value of the automobile after the collision, deduct the latter from the former and then you would have a true rule to go by in arriving at what the damages were. Now, in arriving at that figure, you should take into consideration the estimates of repairs that has been introduced in evidence, depreciation, if any, and use good common sense, and then you would have a true rule to go by, as I say, in arriving at what the actual damages were. Now in addition to that, you could award a reasonable sum of money to compensate the owner of the automobile for the loss of the use of her automobile for a reasonable length of time during which it would have taken her to have the same repaired. In that connection, Mr. Foreman and Gentlemen of the Jury, I think I should further tell you this: You heard me tell Mr. Whaley, when he was arguing to you, he took the position that a person should minimize his damage. I said that rule of law would not apply in a case of this kind but I think I should further tell you this, that the reason the law lays down that theory that I have just enunciated to you about a reasonable length of time during which it would take to have the same repaired, would be based upon this premise; a person who had a collision or has an automobile wrecked, he couldn't wait two or three years and then come back and charge the other party with the loss of the use of his automobile for two or three years, as an illustration, because that would be unreasonable. In other words, you would have to take all the facts and circumstances into consideration and arrive at a reasonable figure, that is, if you consider that she has lost any money by reason of her negotiating or contracting for the use of another automobile, or as I said, for any other expense as a result of the loss of the use of her automobile for a reasonable length of time during which it would take to have the same repaired."

"The damages are not limited to the cost of repairs actually made (here estimated — interpolated) where it is shown that they did not (here would not — interpolated) put the property in as good condition as it was before the injury, and that it would have cost a larger sum to do so. In such cases, the cost of the repairs made (here estimated — interpolated) plus the (remaining) diminution in value of the property will ordinarily be the proper measure of damages." 15 Am. Jur. 534, Damages, sec. 124. It was said in Littlejohn v. Elionsky, 130 Conn. 541, 36 A.2d 52, 53: "A new car may be badly damaged and be repaired so as to put it in a sound or good state, and yet be worth much less than before the collision." Other decisions to the same effect are reviewed in the annotation in 169 A.L.R. 1103 et seq. See also, Sullivan v. City of Anderson, 81 S.C. 478, 62 S.E. 862.

Likewise we conclude in this case that appellants have not shown an abuse of discretion by the trial court in the order reducing the verdict nisi. A comparably full verdict was similarly sustained in the recent case of Reese v. National Surety Corp., 224 S.C. 489, 80 S.E.2d 47. The concluding words of the opinion in Jackson v. Solomon, S.C. 89 S.E.2d 436, 440, are apposite: "We cannot say as a matter of law that the trial Judge committed an abuse of discretion in failing to reduce the verdict as rendered by the jury more than he did, taking into consideration the greatly depreciated value of a dollar." The factor of inflation was also important in the affirmance of verdict for wrongful conversion of an automobile in Richardson v. General Motors Acceptance Corp., 221 S.C. 14, 68 S.E.2d 874, despite the contention that it was excessive.

The other ground of appeal arises out of the interruption by the court of defendant's counsel during his argument to the jury when he undertook to argue the failure of plaintiff to minimize her damages. The following is copied from the record:

Mr. Whaley closes to the Jury on behalf of the Defendants:

"When she left her wrecked vehicle out in the ...


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