Summary
holding that plaintiff is entitled to damages for loss of use of commercial vehicle "during the process of repair"
Summary of this case from BOOKER v. MARCUS MOORE BOB'S RENTALS, INC.Opinion
No. 41894.
June 5, 1961.
1. Animals — negligence — owners of livestock roaming at large on highways liable for damages — burden of proof.
Under statute, burden of proof is on owner of escaped livestock which caused damage to prove lack of negligence. Sec. 4876-05, Code 1942.
2. Motor vehicles — livestock at large on highways — negligent maintenance of fence proximate cause of damages to complainants' vehicle.
Evidence sustained finding that defendant negligently maintained its fences and that, as a proximate result, cow escaped from field and walked in front of plaintiffs' tractor-trailer at night. Sec. 4876-05, Code 1942.
3. Damages — commercial vehicle susceptible to repair — element of damages — cost of repairs.
Cost of repairs is ordinarily proper element of damages where injury is to commercial vehicle.
4. Damages — same — same — loss of use.
If, in addition to physical injury to commercial vehicle, owner has lost use of vehicle for period of time, he is entitled to recover value of use during that period.
5. Damages — same — rental value as determining value or loss.
Rental value of replacement vehicle may be recovered even though none was actually procured during period in which damaged commercial vehicle was undergoing repairs.
6. Damages — same — loss of use — recovery of rental value — loss of profits — when and when not recoverable.
Damages for loss of use of repairable vehicle is normally measured by reasonable rental value of similar unit and only where no substitute vehicle was available may loss of profits be recovered, and then only if owner adduces evidence of sufficient probative value to adequately and clearly measure such loss of profits.
7. Damages — mitigation — reasonable effort to avoid or mitigate damages required.
To hold another liable for damages one must have used reasonable efforts to avoid or mitigate them.
8. Damages — loss of profits — award of damages for loss of profits erroneous.
It was error to award damages for loss of profits during repair period to plaintiffs who admitted that they had made no effort to rent substitute unit while damaged vehicle was being repaired.
Headnotes as approved by Ethridge, J.
APPEAL from the Chancery Court of Tippah County; WM. H. ANDERSON, Chancellor.
Stovall Price, Corinth, for appellants.
I. The principal elements of damages recoverable as a result of repairable damage to a commercial vehicle caused by the negligence of another are (1) the reasonable cost of repairs plus depreciation, (2) the loss of use of the vehicle, and (3) removal and storage costs. Annos. 4 A.L.R. 1352-1364, 169 A.L.R. 1075, 1076; 5A Am. Jur. 947.
II. Proper measure of compensation for loss of use of commercial vehicle is the reasonable rental value of a similar vehicle, not the loss of profits. Buchanan v. Leonard, 127 F. Supp. 120; Central Greyhound Lines v. Bonded Freightways, 82 N.Y.S.2d 671, 193 Misc. 320; Chesapeake O.R. Co. v. Elk Refining Co., 186 F.2d 30; Greyhound Corp. v. Townsend, 234 Miss. 839, 108 So.2d 208, 853; Vining v. Smith, 213 Miss. 850, 58 So.2d 34; Wilson Co. v. Sims, 250 Ala. 414, 34 So.2d 689; Annos. 4 A.L.R. 1361, 169 A.L.R. 1092, 1093, 1097, 1098; 25 C.J.S. 601, 602, 809.
III. Damages for loss of use can only be recovered for the period reasonably necessary to make repairs. Parsons v. Lambert, 209 Miss. 649, 48 So.2d 143; Anno. 55 A.L.R. 2d 936.
IV. Failure of appellees' driver to see cow until it was three feet from him was contributory negligence attributable to appellees. Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Flynt v. Fondren, 122 Miss. 248, 84 So. 188; Lee v. Reynolds, 190 Miss. 692, 1 So.2d 487; Parkins v. Brown, 241 F.2d 367; Porter v. Nesmith, 124 Miss. 517, 87 So. 5; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840; Robinson v. Colotta, 199 Miss. 800, 26 So.2d 66; Sohio Petroleum Co. v. Fowler, 231 Miss. 72, 94 So.2d 350.
V. Contributory negligence of appellees would diminish their damages and entitle appellant to set-off proportion of its damage attributable to such contributory negligence. Cobb v. Williams, 228 Miss. 807, 90 So.2d 17; Wells v. Bennett, 229 Miss. 135, 90 So.2d 199; Secs. 1296, 1454, 1483.5, Code 1942. Robert B. Smith, Ripley, for appellees.
I. There is substantial evidence to support the finding and judgment of the Court that the driver of the tractor-trailer outfit as not guilty of contributory negligence. Belk v. Rosamond, 213 Miss. 633, 57 So.2d 461; Flynt v. Fondren, 122 Miss. 248, 84 So. 188; Lee v. Reynolds, 190 Miss. 692, 1 So.2d 487; Parkins v. Brown, 241 F.2d 367; Porter v. Nesmith, 124 Miss. 517, 87 So. 5; Rhodes v. Fullilove, 161 Miss. 41, 134 So. 840; Robinson v. Colotta, 199 Miss. 800, 26 So.2d 66; Sharp v. Learned, 202 Miss. 393, 32 So.2d 141; Sohio Petroleum Co. v. Fowler, 231 Miss. 72, 94 So.2d 350; Temes v. Temes, 222 Miss. 617, 76 So.2d 707.
II. There is substantial evidence to support the finding and judgment of the Court that the appellees were entitled to just and reasonable compensation for the loss of the use of the tractor-trailer outfit, while it was being repaired. Dollarhide v. Knight, 216 Miss. 318, 62 So.2d 367; Pongetti v. Spraggins, 215 Miss. 397, 61 So.2d 158; Pylar v. Jones, 207 Ala. 372, 92 So. 445; Annos. 4 A.L.R. 1355, 169 A.L.R. 1087; Secs. 4876-01 et seq.; Chap. 140, Laws 1956 as amended; 3 Am. Jur., Proof of Facts pp. 589, 591; 5A Am. Jur. 947; 15 Am. Jur., Damages, Secs. 133, 138; Griffith's Mississippi Chancery Practice (2d ed.), Sec. 674 pp. 741, 742, 743.
(Hn 1) The principal question pertains to the measure of damages for loss of use of a commercial vehicle. Appellees, H.G. Jumper and James L. Jumper, brought this suit in the Chancery Court of Tippah County against appellant, National Dairy Products Corporation, seeking damages for injury to their tractor-trailer unit, resulting from a collision between the tractor and a cow owned by the corporation. The suit was based on a claim that defendant negligently maintained its fences, and, as the proximate result, the cow escaped from the field and walked in front of the tractor at night. Under Miss. Code 1942, Rec., Sec. 4876-05, the burden of proof is on the owner of such livestock to prove lack of negligence. (Hn 2) After hearing considerable testimony, the court found that the tractor driver was not guilty of contributory negligence, and defendant's negligence proximately caused the damages to complainants' vehicle. There was substantial evidence to support the findings of defendant's liability, and that one proper element of damages was the cost of repairs to the tractor, $1,104.27.
As another element of damages, the trial court also awarded appellees $4,050.00 for loss of profits for the six weeks during which the tractor was being repaired, which allegedly resulted from their inability to haul corn during this period.
(Hn 3) When a commercial vehicle which has been injured may be repaired, if the repairs will substantially restore it to its former condition, the cost of such repairs will ordinarily furnish an element of damages. Anno., 4 A.L.R. 1350, 1352-1355 (1919); 5A Am. Jur., Automobiles and Highway Traffic, Sec. 1114. (Hn 4) If in addition to the physical injury the owner has lost the vehicle's use for a period of time, as during the process of repair, he is entitled to the value of the use of the property during this period. 4 A.L.R. 1355. The weight of authority is that, except in special circumstances, loss of profits cannot be considered as a measure of such damages. Such an element usually contains considerable speculation and conjecture. 4 A.L.R. 1361; 5A Am. Jur., ibid., Sec. 1116; 25 C.J.S., Damages, Sec. 83, p. 602; Anno., 169 A.L.R. 1074 (1947). (Hn 5) A more precise and easily defined measure for loss of use of a commercial vehicle is the rental or usable value of the property during the period the owner has been deprived of it. This is the generally recognized criterion. Damages for loss of use should be measured by the cost of hiring another vehicle while the repairs are being made. The rental value of a replacement vehicle may be recovered, even though no other was actually procured during the interval. 5A Am. Jur., ibid., Sec. 1115.
Where no substitute vehicle can be rented in the market and area reasonably related to complainant's business and trade area, loss of profits may be recovered where the evidence is of sufficient probative value to adequately and clearly measure such loss of profits. However, an award for loss of profits is erroneous in the absence of a showing that no other vehicle could be rented or that the rental value could not be determined. 25 C.J.S., pp. 601-602. The cited annotations and texts discuss a multitude of cases following these principles.
(Hn 6) In short, loss of use of a repairable vehicle is measured by the reasonable rental value of a similar unit. There is one exception, where the owner can show that no substantially similar unit was available for rent. The burden of proof to establish the exception is upon the person seeking damages. Vining v. Smith, 213 Miss. 850, 58 So.2d 34 (1952), and Greyhound Corporation v. Townsend, 234 Miss. 839, 108 So.2d 208, 853 (1959), approve in dicta the above stated rules. This measure of damages for loss of use has the virtue of certainty and fairness, in that there can ordinarily be determined specifically the value of the loss of use, by ascertaining the rental value of a similar vehicle. (Hn 7) One seeking to hold another liable for damages must use reasonable efforts to avoid or mitigate them. Anno., 55 A.L.R. 2d 936 (1957).
(Hn 8) In the instant case, appellees failed to show the rental value of a similar vehicle, and admitted they had made no effort to rent a substitute unit. Their measure of damages for loss of use is the rental value of a substitute, unless they can show that none was available. Hence it was error to award appellees damages for loss of profits during the repair period.
In summary, the decree of the chancery court is affirmed in part, as to liability of appellant and as to the stated amount for cost of repairs to the tractor. It is reversed in part, insofar as it awarded damages for loss of use measured by loss of profits. Accordingly, in order to determine appellees' damages under the proper rules for loss of use of their commercial vehicle, the cause is remanded for a hearing and decision by the chancery court on that issue.
Affirmed in part, reversed in part, and cause remanded.
McGehee, C.J., and Arrington, Rodgers and Jones, JJ., concur.