This section contains the nature of the case and procedural background.

Shircliff (P) sued Averett (D) to recover for damages to his car and personal property in the trunk and the loss of the use of the car as a result of D’s negligence in the operation of an automobile which collided with P’s vehicle. D admitted liability, and the case went to the jury on the issue of damages only. The jury gave the verdict to P for $4,000 in damages to the car and $160 to the personal property in the car. P moved to set the verdict aside and award him $8059 under Restatement of Torts section 928. P claims that he had a right to measure his damages as the difference in the value of the auto before and after the accident. In the alternative, P moved for a new trial on grounds that the court erred in instructing the jury and in refusing the admission of certain evidence. The trial judge instructed the jury that the damages were to be determined from the difference between the fair market value of the damaged vehicle immediately before the accident and the fair market value of the vehicle immediately after the accident with the exception that if the car could be repaired to its former condition and the cost of repairs would be less than the diminution of value, then the measure of damages would be the cost of the repairs plus any applicable depreciation. The court then recognized this instruction as in error and set aside the jury’s verdict and entered final judgment in the amount of $8059. D appealed. D contends that the original instruction given is the law.

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