Opinion
November 3, 1952 —
December 2, 1952.
APPEAL from part of a judgment of the circuit court for Milwaukee county: WILLIAM I. O'NEILL, Circuit Judge. Modified and, as modified, affirmed.
Herman M. Knoeller, attorney, and Truman Q. McNulty of counsel, both of Milwaukee, for the appellant.
For the respondent there was a brief by Lamfrom, Tighe, Engelhard Peck, attorneys, and Francis X. Krembs of counsel, all of Milwaukee, and oral argument by Mr. Krembs.
Action by plaintiff Louis R. Bunde against defendant Badger Carpet Dyers, Inc., to recover damages of $1,500 for destruction of a rug in cleaning. Defendant counterclaimed for $172.44 claimed to be due from plaintiff on account of services rendered. The case was first tried in the civil court of Milwaukee county which determined that plaintiff was entitled to reproduction cost less depreciation and less salvage value. The judgment of the circuit court determined, among other things, that plaintiff was entitled to reproduction cost less depreciation only. From that part of the judgment determining the amount of damages for the rug, plaintiff appeals.
In 1915 plaintiff's father purchased a new Austrian hand-tufted rug imported from Czechoslovakia. From that time to 1938 it was used as a floor covering by plaintiff's parents in their home, which they occupied only six months of each year. After 1938 plaintiff also used it as a floor covering. It was vacuumed once a week and cleaned by rug cleaners once in every five years. On such occasions as it was sent out it was always returned in excellent condition, without shrinkage or loss of color. The testimony shows that it was a clear and distinct rose color with a definite blue design, the nap was long and straight and showed little or no wear.
In October, 1947, Julius Kranstover, president of the defendant company, called at the Bunde home at the request of plaintiff's wife. He examined the rug in question and asserted that his company had particular skill and experience in cleaning such rugs. Mrs. Bunde advised Kranstover that the rug was very dear to her and her husband and that they had been offered $1,800 for it two years before. The rug was removed to defendant's establishment and Mr. Kranstover supervised the cleaning.
On November 5, 1947, when the rug was returned by defendant it had lost its brilliance and character, was a monotone beige in color and had shrunk four inches in length. Its nap was worn and the warp was exposed in several places. John Walbridge, an expert witness, testified that he had seen the rug a number of times before November, 1947; that it was then clear and distinct in color and generally in a good condition; that he observed the rug after defendant cleaned it and it was faded in color, indistinct in design, and the nap was matted so that the warp could be seen.
He further testified that there was no market for such rugs in the fall of 1947 because they were no longer being made, but that, if obtainable, the rug would be worth $60 per square yard. In his opinion, when he observed it in December, 1947, after cleaning, it was unsalable. It was also his opinion that the difference in the rug's condition could not be attributed to normal use and wear. The witness testified that its fair value prior to cleaning by the defendant would be $1,500 to $1,600. In making that estimate, he asserted that he was taking the age of the rug into consideration.
There was also testimony to the effect that the lifetime of such a rug with normal use would be fifty to seventy-five years.
The only question on this appeal is as to the true measure of damages.
It is clear from the record that the rug here involved is presently unsalable. Mr. John Walbridge, the expert witness, set a value upon the rug, before cleaning by the defendant, of $1,500 to $1,600. This testimony is credible and uncontradicted and we must accept it as a verity. The value of an article of this nature, no longer available on the market, is not a subject of common knowledge.
In our opinion the rule of cost of reproduction less depreciation is not a proper one to use in this case. The circuit court took the minimum life expectancy of fifty years, deducted thirty years' use, and allowed plaintiff to recover the balance of its value. The life expectancy of a rug would depend largely upon the care it was given and the use to which it was put, but this fact was not taken into consideration by the circuit court, although the record shows that it had exceptionally good care by plaintiff and his parents and that for many years it had less than average use and wear.
Under the facts of this case the proper measure of damages is the value of the property before delivery as against its value when returned. As stated in 6 Am. Jur., Bailments, p. 394, sec. 294, the general rule is "that the measure of damages is the difference between the value of the property immediately before, and its value immediately after, it was damaged." See also 8 C. J. S., Bailments, p. 364, sec. 55; Chapleau v. Manhattan Oil Co. (1922), 178 Wis. 545, 190 N.W. 361.
The judgment must be modified to allow plaintiff $1,500 damages, the minimum value of the rug, as testified to by the expert, immediately prior to bailment.
The trial court by stipulation allowed defendant $117 for services previously rendered. No appeal was taken from that part of the judgment. Defendant should be allowed this credit against the amount of damages herein set forth. Plaintiff shall be entitled to interest at the legal rate from the date of judgment.
By the Court. — Judgment modified as set forth in the opinion and, as so modified, is affirmed. Appellant to have his costs on this appeal.