Conley v. Kansas City Rys. Co.

• Decision Date: 23 May 1921
• Docket Number: No. 14043.,14043.
• Citation: 259 S.W. 153
• Parties: CONLEY v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

259 S.W. 153

CONLEY v. KANSAS CITY RYS. CO.

No. 14043.

Kansas City Court of Appeals, Missouri.

May 23, 1921.

Certiorari Denied March 10, 1924.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

Action by Shannon H. Conley against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Chas. N. Sadler, Ben L. White, John E. Connors, and E. E. Ball, of Kansas City, for appellant.

Ralph S. Latshaw, Jr., of Kansas City, for respondent.

BLAND, J.

This is an action for damages to an automobile alleged to have been negligently run into and damaged on January 19, 1919, by one of defendant's street cars being operated on Main street between Tenth and Eleventh streets, in Kansas City, Mo. There was a verdict and judgment in the Sum of $1,300, and defendant has appealed.

The petition prayed and plaintiff's instruction No. 3 submitted the following items of damages: $820 for repairs to the automobile; $12.50 for towing and storage charges; $480 for deprivation of the use of the automobile in plaintiff's livery business during the time the automobile was being repaired; $200 for depreciation in the value of the automobile, being the difference between its reasonable market value immediately prior to the accident and immediately after the repairs. The total amount asked was $1,512.50.

Complaint is made of error in plaintiff's instruction No. 3. We think there is no question but that the instruction was erroneous. The evidence shows that plaintiff was in the automobile livery business and drove his own car and that he had no other car. He had been making an average of $80 per week in the business prior to the accident. The automobile was taken to the Hudson-Brace Company for repairs on January 21, 1919, and was returned repaired on March 4, 1919, being in the shop for six weeks. The item of $480 for loss of the use of the automobile was made up of $80 per week for the six weeks. There Was no evidence that this was a reasonable time for the doing of the repair work. The servicemanager of the Hudson-Brace Company stated that some cars could be repaired more quickly than others, and described the method of doing repair work in the shop. However, there was a total absence of proof that the car was repaired within a reasonable time even in view of the method of work in vogue in the shop where the automobile was repaired. For this reason, among others, plaintiff's instruction No. 3 was erroneous in submitting the item of $480 damages by reason of plaintiff being deprived of the use of the automobile in his livery business. (Hoffman v. Met., 51 Mo. App. 273, 279; Gilwee v. Pabst Brewing Co., 195 Mo. App. 487, 489, 193 S. W. 886; Peters v. Streep (Sup.) 138 N. Y. Supp. 146, 147; Berry on Automobiles (2d Ed.) § 550, p. 626.

This item of $480 included loss of plaintiff's own time, while there was no allegation or proof that he was personally injured, and there was no proof that he made any effort to hire another car to be used in his livery business or that such a car was not available. The measure of damages for the use of the car in plaintiff's livery business was the cost of hiring such a machine in the market for the period during which the plaintiff was deprived of the use of his own machine. Plaintiff was not entitled to recover the profits derived from the use of his car in the absence of proof that a similar machine could not be hired in the market at the time. Berry on Automobiles (2d Ed.) § 550, p. 626; Trout Auto Livery Co. v. People's Gas L. & C. Co., 168 Ill. App. 56, 60, 61; Universal Taximeter Cab Co. v. Blumenthal (Sup.) 143 N. Y. Supp. 1056. But where no other car was hired the reasonable cost of another automobile during that period is not a proper basis for determining the usable value. Peters v. Streep, supra; Berry on Automobiles (2d Ed.) § 550, p. 626. Plaintiff, not having shown that he could not hire another car to carry on his livery business during the time his car was laid up for repairs, was not entitled to recover loss of profits on account of being deprived of the use of his automobile, and plaintiff's instruction No. 3 was erroneous for this reason.

This instruction was also erroneous for the reason that within the amount submitted as loss of use of the car was included loss of plaintiff's own time, and there is no showing that he could not have been engaged in some other profitable undertaking during the time his car was in the shop. It is questionable whether plaintiff could recover for his own time in any event, he not being personally injured, for the reason that such an item would seem to be of a speculative nature. Newell v. Smith, 28 Misc. Rep. 182, 58 N. Y. Supp. 1025; Dillon v. Mundet (Sup.) 145 N. Y. Supp. 975; Cook v. Packard Motor Car Co., 88 Conn. 590, 604, 605, 92 Atl. 413, L. R. A. 1915C, 319. The instruction was not erroneous in that it allowed $12.50 for towage and storage of the damaged car. Gilwee v. Pabst Brewing Co., supra, loc. cit. 489, 193 S. W. 886. " There was evidence that the automobile had depreciated in the sum of $200. "

Complaint is made of plaintiff's instruction No. 1 because it submits to the jury general negligence, while it is claimed that the petition alleges specific acts of negligence. The petition first alleges general negligence in allowing and permitting the street car to run into and come into violent contact and collision with the rear end of plaintiff's automobile. The instruction follows the wording of this allegation. The petition then alleges a cause of action under the humanitarian doctrine, and in the third paragraph, that the persons in charge of the street car omitted to sound a bell or give any warning. It is claimed that the petition thus worded consists of an allegation of general negligence followed by a specific charge of negligence, and consequently plaintiff's case must rest upon the specific charge, and his instruction is erroneous, defendant citing the cases' of McManamee v. Railway, 135 Mo. 440, 447, 37 S. W. 119; Clark v. General Motor Car Co., 177 Mo. App. 623, 628, 160 S. W. 576. However, assuming that plaintiff's instruction is erroneous in submitting general negligence, we think that there is no question but that defendant in its instruction No. 6 adopted the definition of negligence as applied to the case contained in plaintiff's instruction No. 1. Defendant submitted no instruction on the question of negligence or its liability except its instruction No. 6, which reads as follows:

"The court instructs the jury that negligence is not the proximate cause of an accident unless, under all the circumstances, the accident might have been reasonably foreseen by a man exercising ordinary care. It is not enough for the plaintiff to" prove that the accident is the natural consequence of some act of negligence. The plaintiff must go further and prove that the accident must also have been the probable consequence of some specific act of negligence as defined to you in the instructions." (Italics ours.)

Now the jurors, being laymen, of course did not know the difference between a specific and a general act of negligence, so defendant's instruction No. 6 in using the terms "specific act of negligence as defined to you in the instructions" had reference to a layman's understanding of the term in connection with the case, and no acts of negligence of any kind were set forth in any instruction save in plaintiff's instruction No. 1. (Plaintiff's instruction No. 2 contained merely the usual definition of negligence.)...