Wilson & Co. v. Sims
| Decision Date | 08 April 1948 |
| Docket Number | 6 Div. 592. |
| Citation | 250 Ala. 414,34 So.2d 689 |
| Court | Alabama Supreme Court |
| Parties | WILSON & CO., Inc., v. SIMS. |
Spain Gillon, Grooms & Young and H. H. Grooms, all of Birmingham, for appellant.
Taylor, Higgins, Koenig & Windham, of Birmingham, for appellee.
Plaintiff testified that at the time of the accident (October 30, 1945) she was not operating the truck herself, but that same was leased to Deaton Truck Line, and introduced in evidence a written lease between herself, as owner, and the Deaton Truck Line, Inc., dated August 22 1945.
The pertinent provision of said instrument is the following:
'4. The Company agrees to pay as rent to the Owner for the use of said vehicle the following percentages of gross revenue derived by the Company from the operation of said vehicle * * *:
'70% of all freight classified in the National Motor Freight Classification as 6th Class or higher.
'75% on all freight classified in the National Motor Freight Classification as 7th Class or lower.'
The rule in Alabama for the measure of damages for the injury to a commercial vehicle is the damages which would remunerate the plaintiff for necessary repairs in substantially restoring the vehicle to its former condition and the market value of its use of hire during the time required to make such repairs and fit it for business. Southern Ry. Co. v Reeder, 152 Ala. 227, 236, 44 So. 699, 126 Am.St.Rep 23; Plylar v. Jones, 207 Ala. 372, 92 So. 445. This seems to be the rule in most of the jurisdictions. 4 A.L.R 1352, Annotation a; 1355 b; 78 A.L.R. 911, Annotation a, 912 b.
The jury was given no instructions as to the correct measure of damages in the case, nor was there any evidence of the reasonable value of the use or hire of the disabled vehicle during the period it was out of service for necessary repairs. The jury was allowed to speculate as to this element of damages and to proceed on the wrong theory in awarding a recovery and the predicate for error laid in this regard by objection to certain evidence and in motion for new trial necessitates a reversal of the judgment.
The written lease (noted by the reporter) of the truck to Deaton Truck Lines afforded no basis on which to rest such an award, since there was no proof that the lease was commensurate with the market or reasonable rental value of the vehicle and its introduction did not suffice as proof to satisfy the rule as to the measure of this element of damages nor to relieve them from being speculative.
The plaintiff sought to rest recovery for the loss of use of the truck on proof of loss of profits during the period it was laid up for repairs, but this is not permissible in this kind of a case. The weight of authority does not support such a theory nor have our own courts sanctioned it. The following text in American Jurisprudence, Vol. 5, p. 908, § 751, states what we conceive to be the pertinent rule:
The 'certain circumstances' mentioned in the quoted text--and not here pertinent under the pleading and proof if such exception to the rule were to be approved--generally appears to refer to those cases where an award of loss of profits is allowed when no substitute motor vehicle can be obtained in the market while plaintiff's vehicle is being repaired. 4 A.L.R. 1361 c, and cases; 42 C.J. 1294, § 1171, and cases n. 52, 53, p. 1298, § 1179, n. 32.
The cases bearing on the question and supporting the general rule are cited in the annotations, some of which are: Fritts v. New York & N. E. R. Co., 62 Conn. 503, 26 A. 347; Weick v. Dougherty, 139 Ky. 528, 90 S.W. 966, 3 L.R.A., N.S., 348; Dixon v. Boeving, Mo.App., 208 S.W. 279; Universal Taximeter Cab Co. v. Blumenthal, Sup., 143 N.Y.S. 1056; Naughton Mulgrew Motor Car Co. v. Westchester Fish Co., 105 Misc. 595, 173 N.Y.S. 437; Hastings v. Taylor, 188 N.Y.S. 421; Conley v. Kansas City R. Co., Mo.App., 259 S.W. 153; Francischini v. McMullen, 142 A. 651, 6 N.J.Misc. 736; Carkuff v. Geophysical Service, La.App., 179 So. 490; Houlton v. Nichols Truck Line, La.App., 23 So.2d 368; Hawkins v. Garford Trucking Co., 96 Conn. 337, 114 A. 94; Deslandes v. Scales, 187 Ala. 25, 65 So. 393; Southern Ry. v. Crowder, 135 Ala. 417, 33 So. 335; Woodward Iron Co. v. Curl, 153 Ala. 205, 44 So. 974.
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Summerlin v. Robinson, 7 Div. 711
...the jury in aiding them in estimating just compensation for being prevented by the injury from engaging in his work. Wilson & Co. Inc. v. Sims, 250 Ala. 414, 34 So.2d 689; Birmingham Electric Co. v. Cochran, 242 Ala. 673, 8 So.2d 171; Bankers' Mortgage Bond Co. v. Sproull, 220 Ala. 245, 124......
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