For negligence in repairing a leased automobile which was involved in a collision, respondents recovered a judgment against appellants in the amount of $2,400.00.
By Point III, appellants contend that the trial court erred in overruling their motion for directed verdict as to respondents’ Count I (which was based upon negligence) at the close of their evidence because (a) respondents’ evidence failed to establish any negligence or contractual relationship between the parties; and (b) respondents’ evidence failed to establish any breach or proper damages.
In the collision, the driver of the other vehicle was determined to be at fault, and his insurer, Ranger Insurance Company, agreed to repair and pay for the damages to respondents’ automobile. Apparently Ranger dealt with appellants in agreeing to price and repair of respondents’ leased vehicle. Respondents were unaware of any specifications or price, but Judy Southwick signed a work order with appellant authorizing the repairs. Ranger’s draft was issued for the repairs payable to both parties, which was endorsed by them indicating release by respondents of Ranger and receipt of payment by appellants.
Appellants seem to say that any obligation to repair properly was due to Ranger. In this they are wrong. Any agreement between Ranger and appellants was for the benefit of respondents as third party beneficiaries, and any damages for failure properly to repair the vehicle enured thereunder to respondents. They have, therefore, a right to sue for its breach. Stephens v. Great Southern Savings & Loan Ass’n,
“Generally, the measure of damages recoverable for defective repairs of a bailed motor vehicle is the difference between the value of the vehicle in its defective condition and its value in the condition in which it would have been if the repairs had been properly performed, together with all other losses proximately resulting from the defective repair work * * *.” 38 Am.Jur.2d Garages, Etc., § 80, p. 380 (1968). Annot. 1, A.L.R.4th 347 (1980), “Damages — Repair of Motor Vehicle” mentions other methods of measuring damages for negligent repair of an automobile, e.g., the difference between the value of the vehicle before and after defective repair; the difference between the amount paid for repairs and actual value of repairs or the amount necessary to complete the work; the cost of completing the repairs; and a return of the amount paid. The general rule above recited, however, is the better one as being more in
The trial court gave Instruction No. 7: “If you find in favor of plaintiffs then you must award plaintiffs such sum as you may find from the evidence to be the difference between the fair market value of the 1977 Volvo automobile if it had been repaired properly and its fair market value after it was repaired negligently.” Note that this instruction substantially follows the statement of the general rule, supra, as to damages for negligent repair. The instruction is not here attacked as being an incorrect statement of the law, and the foregoing discussion as to such damages is included only because appellants say that respondents failed to establish any proper damages. In this, appellants are correct. All that was received in evidence was a list of necessary further repairs and the cost thereof (referred to in the transcript as Plaintiffs’ Exhibit 4). No witness testified as to the fair market value if the vehicle had been repaired properly and its fair market value after it was repaired negligently, or the difference thereof, in accordance with Instruction No. 7. Respondents failed in their burden of proof as to damages, but in accordance with Ribando v. Sullivan,
Witness Bass made an examination and an appraisal of the damage after the alleged negligent repair of respondents’ Volvo listing them on Plaintiffs’ Exhibit 4. That exhibit also contained his notes with these conclusions: “(1) Items listed below were to have been new but were used parts or were straightened; (2) Items were improperly straightened; (3) Refinish is peeling off, joints are cracking & rusting. The above items must be reworked as per my itemized appraisal to return the vehicle to a satisfactory condition thus restoring the vehicle to a fair market value; (4) This estimate reflects repairs need (sic) to correct previous repairs that were not properly performed.” An objection was lodged as to the Bass opinions, but not to his making a statement as to costs, and the court quite apparently admitted it for the limited purpose of showing costs. The document was also used thereafter for cross and direct examination, and was limited for the purpose of costs of repair. See Nutz v. Shepherd,
It is contended that certain photographs of the Volvo were improperly admitted into evidence. A sufficient foundation thereto was made by Judy Southwick as to when they were taken and that they fairly represented the condition of the Volvo at that time. No error appears as contended. The same ruling applies to the objection of the giving of Instruction No. 5, based upon claimed error in omitting the elements of a finding of contract, the specifics thereof, and the failure to prove a breach thereof. As noted, the theory of Count I is on the basis of negligence, and the instruction properly follows MAI 17.01. Respondents clearly made a submissible case.
All concur.