Gertler v. Bowling, 116 S.E.2d 268 (Va. 1960). · Go Syfert
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Gertler v. Bowling, 116 S.E.2d 268 (Va. 1960). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, last quoted 2004 · 2 courts · …due allowance for elements of depreciation. ✓
cited 2× by 2 distinct cases, last quoted 2011 · …the facts and circumstances proven must be such as to permit an intelligent and probable estimate of the amount of damages or loss sustained. ✓
50 citation events (31 in the last 25 years) across 5 distinct courts.
Strongest positive: Harrell v. Deluca (vaed, 2022-11-07)
Treatment trajectory · 1966 → 2026 · click a year to view as-of
1966 1996 2026
Top citers, strongest first. 19 distinct citers. How cited ↗
cited Cited as authority (rule) Harrell v. Deluca
E.D. Va. · 2022 · confidence medium
Actual Damages □ Under Virginia law a plaintiff must “prove the extent of damages with a reasonable certainty.” Gertler v. Bowling, 202 Va. 213, 215 (Va. 1960).
discussed Cited as authority (rule) Spratley v. Commonwealth
Va. · 2019 · confidence medium
“While the original purchase price of an item may be admitted as evidence of its current value” in a grand larceny case, “there must also be ‘due allowance for elements of depreciation,’” including “a showing of the effect of age and wear and tear on the value of [the] item.” Dunn, 222 Va. at 705 (quoting Gertler v. Bowling, 202 Va. 213, 215 (1960)).
discussed Cited as authority (rule) Calvin Burnell Bailey, Jr. v. Commonwealth of Virginia
Va. Ct. App. · 2017 · confidence medium
Finally, Bailey points out that “[w]hile the original purchase price of an item may be admitted as evidence of its current value, there must also be ‘due allowance for elements of depreciation.’” Dunn v. Commonwealth, 222 Va. 704, 705 , 284 S.E.2d 792, 792 (1981) (per curiam) (quoting Gertler v. Bowling, 202 Va. 213, 215 , 116 S.E.2d 268, 270 (1960)).
discussed Cited as authority (rule) Jatinder Sharma v. USA International, LLC
4th Cir. · 2017 · confidence medium
See, e.g., Holz, 147 S.E.2d at 155 (in a breach-of-warranty claim, automobile’s sales price established value if parts had not been defective); Gertler v. Bowling, 202 Va. 213 , 116 S.E.2d 268, 270 (1960) (similar).
discussed Cited as authority (rule) Charleston Alexandria Williams, Jr. v. Commonwealth of Virginia (2×)
Va. Ct. App. · 2015 · confidence medium
There was no evidence to establish how old the laptop was, what its capabilities were when new or at the time of the theft, whether it still worked, what software, if any, was installed on the laptop, what its memory capability was, or any other factor that could be used to allow a factfinder to divine a value for it at the time of the theft. “‘While the original purchase price of an item may be admitted as evidence of its current value, there must also be ‘due allowance for elements of depreciation.’” Dunn v. Commonwealth, 222 Va. 704, 705 , 284 S.E.2d 792, 792 (1981) (quoting Gertl…
discussed Cited as authority (rule) Charleston Alexandria Williams, Jr. v. Commonwealth of Virginia
Va. Ct. App. · 2015 · confidence medium
There was no evidence to establish how old the laptop was, what its capabilities were when new or at the time of the theft, whether it still worked, what software, if any, was installed on the laptop, what its memory capability was, or any other factor that could be used to allow a factfinder to divine a value for it at the time of the theft. “‘While the original purchase price of an item may be admitted as evidence of its current value, there must also be ‘due allowance for elements of depreciation.’” Dunn v. Commonwealth, 222 Va. 704, 705 , 284 S.E.2d 792, 792 (1981) (quoting Gertl…
discussed Cited as authority (rule) Larond Antonio Ayres v. Commonwealth of Virginia
Va. Ct. App. · 2013 · confidence medium
“While the original purchase price of an item may be admitted as evidence of its current value, there must also be ‘due allowance for elements of depreciation.’” Id. (quoting Gertler v. Bowling, 202 Va. 213, 215 , 116 S.E.2d 268, 270 (1960)).
cited Cited as authority (rule) Reginald Welford Watson, III v. Commonwealth of Virginia
Va. Ct. App. · 2013 · confidence medium
Id. at 705 , 284 S.E.2d at 792 (emphasis added) (internal citation omitted) (quoting Gertler v. Bowling, 202 Va. 213, 215 , 116 S.E.2d 268, 270 (1960)).
discussed Cited as authority (rule) Little v. Commonwealth
Va. Ct. App. · 2012 · confidence medium
However, “there must also be ‘due allowance for elements of depreciation.’ Without a showing of the effect of age and wear and tear on the value of an item ..., the jury might be misled to believe that original price equals current value.” Dunn v. Commonwealth, 222 Va. 704, 705 , 284 S.E.2d 792, 792 (1981) (quoting Gertler v. Bowling, 202 Va. 213, 215 , 116 S.E.2d 268, 270 (1960)).
discussed Cited as authority (rule) Freddie W. Robinson, Jr. v. Commonwealth of Virginia
Va. Ct. App. · 2011 · confidence medium
When the value of goods taken is at issue, “the facts and circumstances proven [must be] such as to permit an intelligent and probable estimate of the amount of damages or loss sustained.” Gertler v. Bowling, 202 Va. 213, 215 , 116 S.E.2d 268, 270 (1960).
discussed Cited as authority (rule) Roy Lynwood Sheppard v. Commonwealth of Virginia
Va. Ct. App. · 2004 · confidence medium
In finding the evidence insufficient to prove the typewriter had a value of $100 at the time of the theft, the Court noted as follows: While the original purchase price of an item may be admitted as evidence of its current value, there must also be “due allowance for elements of depreciation.” Gertler v. Bowling, 202 Va. 213, 215 , 116 S.E.2d 268, 270 (1960).
discussed Cited as authority (rule) Russell Street v. Commonwealth of Virginia
Va. Ct. App. · 2002 · confidence medium
Gertler v. Bowling, 202 Va. 213, 215 , 116 S.E.2d 268, 270 (1960) (citations omitted). - 2 - The purchase price of an item is admissible and is competent evidence of its current value, Robinson v. Commonwealth, 258 Va. 3, 5-6 , 516 S.E.2d 475, 476 (1999), and the owner's opinion of value is admissible, Walls v. Commonwealth, 248 Va. 480, 482 , 450 S.E.2d 363, 364 (1994).
cited Cited as authority (rule) Milton J. Hodges v. Commonwealth of Virginia
Va. Ct. App. · 2000 · confidence medium
Gertler v. Bowling, 202 Va. 213, 216 , 116 S.E.2d 268, 270 (1960).
discussed Cited as authority (rule) Kenneth Wayne Morris, etc. v. Commonwealth
Va. Ct. App. · 1997 · confidence medium
When the value of goods taken is at issue, "the facts and circumstances proven [must be] such as to permit an intelligent and probable estimate of the amount of damages or loss sustained." Gertler v. Bowling, 202 Va. 213, 215 , 116 S.E.2d 268, 270 (1960).
discussed Cited as authority (rule) Marlo Jermaine Owen v. Commonwealth
Va. Ct. App. · 1996 · confidence medium
"While the original purchase price of an item may be admitted as evidence of its current value, there must also be 'due allowance for elements of depreciation.'" Dunn v. Commonwealth, 222 Va. 704, 705 , 284 S.E.2d 792, 792 (1981) (quoting Gertler v. Bowling, 202 Va. 213, 215 , 116 S.E.2d 268, 270 (1960)).
discussed Cited as authority (rule) Bennett Air Conditioning, Incorporated v. Warren Manufacturing Company, Incorporated, and Automatic Equipment Sales of Washington, Incorporated
4th Cir. · 1994 · confidence medium
However, a plaintiff is "not required to prove with mathematical precision the exact amount of loss when the existence of damage is established and the facts and circumstances proven are such as to permit an intelligent and probable estimate of the amount of damages ... sustained." Gertler v. Bowling, 116 S.E.2d 268, 270 (Va.1960). 38 Warren asserts that Bennett's repair costs proof was lacking or deficient because Bennett's service tickets (a) do not adequately delineate the work performed (i.e., some tickets include work on equipment of other manufacturers, warranty work, routine maintenance…
cited Cited as authority (rule) Boone v. Stacy
E.D. Va. · 1984 · confidence medium
Gertler v. Bowling, 202 Va. 213, 215 , 116 S.E.2d 268, 270 (1960).
discussed Cited as authority (rule) Dunn v. Commonwealth
Va. · 1981 · confidence medium
While the original purchase price of an item may be admitted as evidence of its current value, there must also be “due allowance for elements of depreciation.” Gertler v. Bowling, 202 Va. 213, 215 , 116 S.E.2d 268, 270 (1960).
discussed Cited as authority (rule) Checkpoint Foreign Car Service, Inc. v. Sweeney
Md. · 1968 · confidence medium
In the case of Gertler v. Bowling, 202 Va. 213 , *255 215, 116 S. E. 2d 268, 270 (1960), presenting facts very-similar to the instant case, the Court said: “Evidence of the original cost of a used automobile is admissible on the issue as to its value at the time of loss, on the theory that the present value of a used article can be determined with a reasonable degree of certainty by taking such original cost and making due allowance for elements of depreciation.
Retrieving the full opinion text from the archive…
Henry Gertler, Et Al., Partners, Etc.
v.
Marie E. Bowling
Record 5142.
Supreme Court of Virginia.
Oct 10, 1960.
116 S.E.2d 268
1960 Va. LEXIS 208
Mark P. Friedlander, Jr. (Mark P. Friedlander; Blaine P. Fried-lander; Charles Walker; Friedlander & Friedlander, on brief), for the plaintiffs in error., R. B. Washington (Leslie Hall, on brief), for the defendant in error.
FAnson.
Cited by 21 opinions  |  Published
FAnson, J.,

delivered the opinion of the court.

Marie E. Bowling, the plaintiff, brought suit in the County Court of Arlington County against Shirlington Motor Company, Inc., alleging that she had sustained damages in the amount of $695.50 as the result of a breach of warranty in the purchase of a used automo[*214] bile, and that the vehicle was now in the possession of the defendant. Upon motion of the defendant, pursuant to § 16.1-92, Code of 1950, as amended, 1960 Cum. Supp., the cause was removed to the Circuit Court and, by consent, Henry Gertler, Leon Chemer, Henry Cherner and Samuel Mensh, trading as Shirlington Motor Company, were substituted as the proper parties defendant. The trial court, sitting without a jury, held that the evidence showed the plaintiff’s automobile became a total loss while in the possession of the defendants as bailees and, acting under § 16.1-114, Code of 1950, as amended, Acts of 1956, ch. 555, without objection from either party, treated the allegations in the warrant as alleging a breach of duty under a bailment contract and entered judgment for the plaintiff in the amount of $445. From this judgment we granted the defendants a writ of error.

The defendants contend in their sole assignment of error that the court erred in entering judgment for the plaintiff because the plaintiff did not prove the amount of damages sustained with reasonable certainty.

The evidence is before us in narrative form, and is as follows:

On or about September 26, 1957, the plaintiff purchased a used automobile from the defendants for the sum of $595 cash.

At a pretrial conference the plaintiff claimed that the defendants guaranteed the car to be in good operating condition, but the defendants stated that they gave no warranty of any kind.

Almost immediately after the purchase of the automobile the plaintiff experienced difficulty in starting the car, and over a period of several months many other mechanical defects showed up. The defendants towed the car to their garage on several occasions where repairs were made without cost to the plaintiff. Sometime during the winter months the automobile engine froze and its block cracked, due to lack of anti-freeze.

In June, 1958, the automobile, with its cracked block, was towed by the defendants to their garage for repairs, and the plaintiff was informed by an employee of the defendants that the defective block could be replaced with a used block at a cost of between $100 and $150.

While the automobile was in the defendants’ care it was parked on a public space near the defendants’ garage and the car was stripped by parties unknown of its various parts, rendering it worthless.

[*215] The defendants rely on the cases of Southern Railway Co. v. Burton & Briel, Inc., 149 Va. 364, 370, 141 S. E. 113, 114, and Gwaltney v. Reed, 196 Va. 505, 507, 508, 84 S. E. 2d 501, 502, in support of their contention that the plaintiff did not prove with reasonable certainty the value of the car when it came into their possession in June 1958. The cases cited are not controlling under the facts in this case.

In the Southern Railway case, supra, damages were not allowed because the evidence showed only a mere possibility of damages resulting from the bruising of apples while in shipment. In Gwaltney v. Reed, supra, there was no proof of how much a nurse on call would have worked if she had not been injured.

While it is true that the burden is on the plaintiff to prove the extent of damages with reasonable certainty, she is not required to prove with mathematical precision the exact amount of loss when the existence of damage is established and the facts and circumstances proven are such as to permit an intelligent and probable estimate of the amount of damages or loss sustained. Gwaltney v. Reed, supra, 196 Va. at pp. 507, 508, 84 S. E. 2d at p. 502; Wyckoff Pipe & Creosoting Co. v. Saunders, 175 Va. 512, 518-519, 9 S. E. 2d 318, 321; Chesapeake & Potomac Telephone Co. of Virginia v. Carless, 127 Va. 5, 11, 12, 102 S.E. 569, 571.

Evidence of the original cost of a used automobile is admissible on the issue as to its value at the time of loss, on the theory that the present value of a used article can be determined with a reasonable degree of certainty by taking such original cost and making due allowance for elements of depreciation. Whitcomb v. Automobile Ins. Co., 167 Minn. 362, 209 N. W. 27, 28; Tatro v. Baker-Fisk-Hugill Co., 215 Mich. 623, 184 N. W. 449; 5 Am. Jur., Automobiles, § 748, p. 906; Anno. 64 A. L. R. 176.

The plaintiff established by the evidence that she had sustained damages when her automobile was rendered worthless while in the possession of the defendants. The value of the car was fixed by the defendants at the time of its sale to the plaintiff, which was approximately eight months prior to its loss. She had very little use of the car after it came into her possession since it was in the defendants’ garage for repairs several times due to mechanical defects that developed immediately after its purchase, and it became inoperable sometime during the winter when the engine block cracked. Consequently, there was little or no depreciation from use. The evidence[*216] shows that at the time of the loss the only defect in the car was a cracked block, for which the trial court made due allowance in fixing the amount of the damages sustained.

The value of the car having been fixed by the defendants several months before its loss, and in the absence of any evidence as to depreciation other than the estimated cost of replacing the cracked block, there was sufficient evidence before the trial court for it to intelligently and fairly estimate with reasonable certainty the quantum of damages at the time of the loss.

The judgment of the trial court is

Affirmed.