Kruvant v. Dickerman

Davidson, J., delivered the opinion of the Court. On June 8, 1969, a motor vehicle driven by the appellee, Christopher Neal Dickerman, struck a parked motor vehicle owned by the appellants, William J. and Maria R. Kruvant, thereby causing damage to appellants’ automobile and a case of first impression in this Court. The question concerns the burden of proof and burden of proceeding with evidence with respect to establishing damages. The measure of damages applied to a motor vehicle which has not been entirely destroyed has been clearly enunciated.

In Taylor v. King, 241 Md. 50, 54-55 , 213 A. 2d 504, 507 (1965), the Court of Appeals said: “ . . . the rule in Maryland with respect to the measure of damages for injury to a motor vehicle, which has not been entirely destroyed, is the reasonable cost of the repairs necessary to restore it to substantially the same condition that it was in before the injury, provided the cost of repairs is less than the diminution in market value due to the injury. And when the cost of restoring a motor ³ vehicle to substantially the same condition is greater than the diminution in market value, the measure of damages is the difference between its market value immediately before and immediately after the injury.” (Footnote omitted.) While Taylor establishes the standard by which we measure damages, it is silent as to burden of proof. It tells us that in order to determine the amount of recovery it is necessary to know at least three facts: the cost of repairs, the value of the vehicle immediately before the injury, and the value of the vehicle immediately after the injury. But it does not tell us whether the owner of the damaged vehicle or the party who caused the damage must prove those facts.

It is difficult to formulate a single principle on which to base a general test for apportioning to each party the specific facts which he must prove. According to Wigmore, “The truth is that there is not and cannot be any one general solvent for all cases. It is merely a question of policy and fairness based on experience in the different situations.” Wigmore on Evidence, § 2486 at 275 (3d ed. 1940). In Maryland, as in the majority of states, it is the rule, in either breach of contract or tort cases, that the burden of proof is on the plaintiff, or on the party who asserts the affirmative of an issue, and that burden never shifts.

When a defendant asserts payment or satisfaction in a contract case, contributory negligence in an unintentional tort case, self-defense in an assault case, truth in a defamation case, or in any case asserts the failure of the plaintiff to avail himself of an opportunity to mitigate or reduce his loss, to suggest a few illustrations, then he has taken the affirmative of an issue, and the burden to prove it by a preponderance of the evidence is upon him. This burden likewise never shifts. Volos, Ltd. v. Sotera, 264 Md. 155, 174-76 , 286 A. 2d 101, 112 (1972); Masano v. Albritton, 245 Md. 423, 432 , 226 A. 2d 299, 304 (1967); M & R Builders v. ⁴ Michael, 215 Md. 340, 356 , 138 A. 2d 350, 359 (1958); Atholwood Development Co. v. Houston, 179 Md. 441, 445-46 , 19 A. 2d 706, 708 (1941); Anno., Presumption and Burden of Proof Regarding Mitigation of Damages, 134 A.L.R. 242 (1941). But see Millison v. Ades of Lexington, 262 Md. 319, 327 , 277 A. 2d 579, 584 (1971) (dicta).

We said in Armstrong v. Johnson Motor Lines, 12 Md. App. 492, 500 , 280 A. 2d 24, 29 (1971): “An affirmative defense is one which directly or implicitly concedes the basic position of the opposing party, but which asserts that notwithstanding that concession the opponent is not entitled to prevail because he is precluded for some other reason.” These generalized views would lead to the conclusion that the owner of the damaged vehicle would have the burden of proving either the cost of repairs or the value of the vehicle immediately before and after the accident in order to establish a prima facie case. The party who damages the vehicle would then have the burden of proceeding with evidence to show that the option not chosen by the owner would cost less. A review of the authorities indicates support for such a conclusion. Textwriters who have considered the precise issue have concluded that the defendant has the burden of showing that the cost of repairs exceeds the diminution in value of the vehicle.

Blashfield states the rule as follows: “The burden rests upon the one seeking to recover damages to his motor vehicle to show the amount, and that the vehicle was damaged beyond repair or that the cost of repairs would exceed the diminution in value. If he can establish either proposition, he need not adduce evidence as to the actual cost of repairs, but can recover the difference in value before and after the accident. “The defendant, however, has the burden of ⁵ proving 1 matters in reduction or mitigation of the damages claimed by the plaintiff. “The plaintiff meets this burden and makes out a prima facie case, in a suit for damages to his vehicle caused by a collision, by showing the making of repairs, the fact that such repairs were made necessary by the accident, the cost thereof, and that such cost was reasonable. The defendant may then show, if he can, that the diminution in value of the injured truck was less than the repair bill.” Automobile Law and Practice, § 480.18 at 50-51 (3d ed.). (Footnotes omitted.) Huddy states the rule as follows: “In some jurisdictions, the cost of the repairs is permitted as the measure of damages, but not to exceed the difference between the value before the accident and afterwards.

In such a case, when the cost of repairs is found, the burden is on the defendant to show that such sum is greater than the depreciated value.” Encyclopedia of Automobile Law, § 253 at 526 (9th ed. 1931). (Footnote omitted.) Other courts in states which utilize the same measure of damages as Maryland have adopted the rule espoused by the textwriters. Pfingsten v. Westenhaver, 39 Cal. 12 , 244 P. 2d 395, 402 (1952); Konda v. Frumpkin, 90 Cal. App. 384 , 265 P. 955 (1928); Kincaid v. Dunn, 26 Cal.

App. 686 , 148 P. 235, 236 (1915); Globe Motors Inc. v. Noonan, 106 Ga. App. 486 , 127 S.E.2d 320, 324 (1962); Wooster Feed Mfg. Co. v. Village of Tallmadge, 82 Ohio App. 499 , 81 N.E.2d 811, 813 (1948); see Watsontown Brick Co. v. Hercules Powder Co., 265 F. Supp. 268, 275 (M.D. Pa.), aff'd, 387 F. 2d 99 (3d Cir. 1967) (applying Pennsylvania law); Mikol v. Vlahopoulos, 86 Ariz. 93 , 340 P. 2d 1000, 1001 (1959). Illustrative is the case of Rhodes v. ⁶ Firestone Tire & Rubber Co., 51 Cal.

App. 569 , 197 P. 392, 395 (1921), in which the Court said: “When the plaintiff established by her proofs that the repairs were necessary and the cost thereof reasonable, she completed a prima facie showing of her damages. If the diminution in value of the injured truck was less than the repair bill, the defendant should have shown that fact in reduction of the damages claimed by the plaintiff, for the burden of showing matters in reduction or mitigation of damages rested upon the defendant. The reasonable cost of making necessary repairs in such cases as this has been accepted as a proper element in determining the amount recoverable as damages in many other jurisdictions, as has already been pointed out, and we think it proper to accept it as such in the establishment of a prima facie admeasurement of damages, subject to the right of the adverse party to apply to it the test as to whether or not the diminution in value by reason of the injury was less than the repair bill, and if so, to reduce the damages recoverable to equal the sum representing such difference in value.” Supported by the concurrence of textwriters and other state courts, we conclude that the appropriate rule with respect to the burden of proof in a case involving damage to a motor vehicle which has not been destroyed is that the owner of the damaged vehicle has the burden of proving his damage, and may do so by proving either the cost of repairs or the diminution in the value of the vehicle after the damage in order to establish a prima facie case. The party causing the damage then has the burden of showing that the plaintiffs evidence is not the proper measure of damages by offering evidence that the option not pursued by the owner would cost him less.

The appellee contends that certain language in Fred Frederick Motors v. Krause, 12 Md. App. 62 , 277 A. 2d 464 (1971), has determined the issue and has placed the burden ⁷ of proving both the cost of repairs and the value of the vehicle immediately before and after the collision on the plaintiff. We do not agree. In Krause ,