Parties will be referred to as they appeared in the trial court. Plaintiff had judgment against defendant for $500, damages growing out of an automobile collision. Plaintiff's car was repaired.
The court instructed the jury that the measure of damages was: *Page 126
"The difference between the reasonable cash market value of plaintiff's car immediately before and at the time of the collision, and the reasonable cash market value of said car after same had been repaired, less the reasonable cost of such repairs, and the reasonable value of the use of the car, if any, while the plaintiff was having the car repaired."
Said instruction was erroneous. The measure of damages for injury to personal property that can be repaired is the cost of repair and the value of its use necessarily lost pending repair. Weleetka Light Power Co. v. Northrop, 42 Okla. 561,140 P. 1140; Marland Refining Co. v. Duffy, 94 Okla. 16,220 P. 846; St. Louis San Francisco Ry. Co. v. Robinson,99 Okla. 2, 225 P. 986.
The measure in many jurisdictions is the difference between the value at the place immediately before and immediately after the injury, but not in this jurisdiction. 17 C. J. 877.
On page 87 of the case-made the following appears:
"By the Court: Are there any exceptions to the instructions on the part of the defendant?
"Mr. Davenport: The defendant wants to except, if your honor please, to instructions Nos. 5, 6, 10 and 4.
"The Court: Any exceptions on the part of the plaintiff?
"Mr. Rye: No, sir. I think the instructions are fair."
It appears therefore that the instruction of the court was erroneous on the important question of the measure of damages. This error was substantial and prejudicial, and inasmuch as the defendant saved an exception to the same, a new trial should be granted.
The judgment of the trial court is reversed and the cause remanded, with directions to grant a new trial.
By the Court: It is so ordered.