While driving upon a public highway in their respective automobiles, appellant and appellee collided, damaging both cars. This suit was brought by Miller to recover the damages thus sustained by him.
The only competent evidence of the difference in the market value of the car immediately before and after injury was the testimony of appellee's witness Drummond, who fixed the same at $250. This witness also testified that the car could not be put back in as good condition as it was before the accident. He qualified to testify to the facts stated.
Upon the trial the defendant developed upon the cross-examination of the plaintiff that the repair bill amounted to only $72.85, and it cost $5 to tow the car from the place of the accident to the repair shop. The plaintiff also testified that, so far as he could tell, the car was just about as good as it was before the accident. Upon trial, there was a verdict and judgment in favor of Miller for $78. The jury evidently assessed the damages at the cost of the repairs and towing charge. The appellant so assumes, and complains that it was not the proper measure of damages. We are at a loss to understand what ground he has to complain upon that score. He himself developed the evidence upon which the jury based its verdict, and the amount which the jury allowed was less than the only evidence in the record of the difference in the market values before and after the accident. Nor does this matter present, as contended by appellant, a recovery of damages not pleaded, a variance between the pleading and evidence, or a recovery upon a cause of action not pleaded.
The plaintiff sufficiently pleaded his cause of action with a general allegation of damages, and adduced competent evidence in support thereof. The defendant has no cause whatever to complain of the jury's action in assessing the damage upon the basis of the repair bill and towing charge, rather than the evidence of the witness Drummond that the car was worth $250 less after the accident than before, and that it was impossible to repair and put the car back in as good condition as it was before. The error, if *Page 173 any, on the part of the jury in the assessment of damages, was in favor of appellant.
When the accident occurred the appellant gave appellee the following:
"7-8-24.
"Pixley please fix up this car and I'll pay for it. R. H. Geer, M6963.
"Community Garage, 1100 Block Oregon St."
He complains of its admission in evidence. The matter presents no error, for the reason it was a part of the res gestæ and an implied admission by appellant at the time of the accident of his fault in causing the same. It was not a mere offer to compromise, as the appellee asserts.
Affirmed.