Lewis v. Worldwide Imports, Inc. ( 1964 )

DENECKE, J.,

specially concurring.

The problem raised by this case is caused by the acceptance by this court, and most others, of two conflicting rules. We accept the rule of damages as being the difference between the “market value” of the automobile and the price paid. We accept the rule that an owner, because he is owner, although he has no other qualifications, is competent to express an opinion of the “market value” of his automobile. Accentuating the dilemma, we have held that “personal value” to the owner as distinguished from “market value” is not a correct basis upon which to measure damages. Moss v. Peoples Calif. Co., 134 Or 227, 237, 293 P 606 (1930).

The majority retains the difference between “market value” and the purchase price as the proper measure of damages. The majority also assumes, for the purpose of this case, that the owner’s testimony must be of “market value” and, therefore, the owner must have some knowledge of the market. The majority solves the dilemma, as regards the testimony of Lillian Lewis, by concluding that Lillian Lewis had an opinion of the “market value” of this particular ear and her testimony was of “market value.” They so concluded despite her testimony that she was not familiar with the market value of automobiles being sold in Portland.

H. W. Lewis testified that he would not have paid more than $1,000 for the car if he had known it had been wrecked. The majority states that the defendants cannot complain about the basis of this opinion as they did not cross-examine to show that it had an improper basis. Nelson v. Leo’s Auto Sales, Inc., 158 Me 368, 185 A2d 121 (1962), held identical testimony was only of personal value, not market value.

In my opinion this reasoning is questionable. I concur with the result, however, in the belief that in most instances owners testify to “personal value,” rather than “market value,” even though their testimony is framed in the terms of “market value.” Courts tolerate this, and I believe will continue to do so. Unless the property to be valued has a market, such as securities or commodities, it is so difficult to ascertain value that an owner’s estimate of “personal value” is probably as probative as the testimony of “market value” by one who has qualified as an expert. The dangers inherent in the receipt of an owner’s subjective testimony are at least partially offset by the effect of the obvious interest of the witness upon the weight to be given such testimony.