Davis, Agent v. Rhodes

• Decision Date: 19 December 1924
• Citation: 206 Ky. 340
• Parties: Davis, Agent, etc. v. Rhodes.
• Court: Kentucky Court of Appeals

206 Ky. 340

Davis, Agent, etc. v. Rhodes.

Court of Appeals of Kentucky.

Decided December 19, 1924.

Appeal from Rowan Circuit Court.

CLAY & HOGGE and HUNT, NORTHCUTT & BUSH for appellant.

S. S. WILLIS, D. B. CAUDILL and B. S. WILSON for appellee.

OPINION OF THE COURT BY JUDGE DIETZMAN — Reversing.

The only question presented by the pleadings and proof in this case is to what extent the appellee was damaged by the appellant's failure to safely carry from Huntington, West Virginia, to Morehead, Kentucky, a carload of household goods and furniture belonging to appellee. The furniture was badly damaged, and though some of it was repaired, there were a few articles so badly broken up as to be valueless. The court gave the jury the following instruction on the measure of damages:

"1. The court instructs the jury that if they believe from the evidence that the plaintiff, I. A. Rhodes, delivered to the Chesapeake & Ohio Railroad, then in operation by the Director General of the United States, at Huntington, West Virginia, on or about the 6th day of August, 1919, the household goods mentioned in the evidence and petition herein, for transportation on said railroad line, as a common carrier, for hire, to the plaintiff at Morehead, Kentucky, and that the Director General and his agents or servants there received said household goods for such transportation in consideration of the freight charges paid therefor by the plaintiff, and that said Director General, his agents and servants, in charge of and operating said railroad line failed to carry said goods safely from Huntington, West Virginia, to Morehead, Kentucky, and failed to deliver said goods in the condition they were in when received by them, said Director General, his agents and servants at Huntington, West Virginia, to the plaintiff at Morehead, Kentucky, and that said goods or any of them were then destroyed, damaged or injured, then you will find for the plaintiff in damages any diminution in the reasonable value of said goods to the plaintiff, not exceeding the sum of $1,034.82, the amount claimed in the petition; and that by the diminution in the value of said goods to the plaintiff is meant not imaginary or sentimental reduction in value, which plaintiff may have put on the articles, but any difference in the fair value in money to the plaintiff caused by the difference in the condition of said goods when delivered to the agent of the Director General at Huntington, West Virginia, and when delivered to the plaintiff at Morehead, Kentucky."

The appellant complains of this instruction, insisting that the correct measure of damages was the difference between the reasonable market value of the property just before and just after the injury to it. It may be conceded that the market value rule as thus claimed by the appellant is the general rule covering cases of damage to or loss of personal property. However, this general rule is not of universal application. It appears to be settled by the great weight of authority that for the loss or conversion of or injury to household goods and wearing apparel in use, the market value rule must fail, for there is no real market value which will afford the standard of compensatory damage to the owner. These authorities hold that the measure of damages for such loss or injury is not the amount for which these articles would sell as second-hand goods, or the difference in market value due to the injury, but that it is the actual value in money of such goods to the owner for the purpose for which they were intended and used, or the difference in actual value caused by the injury, excluding sentimental or fanciful value which for any reason he might place upon them.

In the case of L. & N. v. Miller, 156 Ky. 677, 162 S. W. 73, this court had before it the question of the measure of damages for the loss of baggage consisting of clothing and wearing apparel, and this court held that in cases of this character the loser's measure of damage is the value of the clothing for use by the owner; that any other rule would not compensate him for the loss, and that the market value rule applied by the lower court was erroneous. This court said:

"But ordinary wearing apparel does not come within this general rule. It is not held for sale, and if sold, it could be sold only as second-hand clothing, and bring but comparatively little. In other words, a coat which one has had made to fit him would not fit another man; and while it would be worth $25.00 to the owner, it would not be worth half that sum to any one else. Furthermore, ordinary wearing apparel, although not made to order, and worn only a few times, is worth much more to the owner than its market value as second-hand clothes."

In the case of C. O. & S. W. R. R. Co. v. Webb, 8 Ky. L. R. 44, a decision by our superior court, the goods lost consisted of household furniture and wearing apparel. In criticizing the market value rule, the court said:

"But there are things the actual value of which cannot be thus ascertained. Personal apparel has no market value; and even if it had, one should not be required to go into such market to replace his lost clothing. The actual value of the thing lost, and therefore the actual damage occasioned by the loss, is the value of the garment, in its worn condition, as compared with its value if it were new, excluding considerations of inconvenience resulting from being deprived of its use. A garment may be sufficiently worn to prevent its having any market value, and yet it may be, for actual use, very nearly as valuable as when it was new and had a market value. There should be a recovery for that part of the original value which has not been consumed by use, but not for that part which has been so consumed."

In all the...