Duckett v. Whorton
| Decision Date | 25 November 1981 |
| Docket Number | No. 64924,64924 |
| Citation | 312 N.W.2d 561 |
| Parties | Harold J. DUCKETT and Margaret F. Duckett, Appellees, v. William R. WHORTON, Appellant. |
| Court | Iowa Supreme Court |
Maurice L. Nathanson, Cedar Rapids, for appellant.
Robert C. Nelson, Cedar Rapids, for appellees.
Considered by LeGRAND, P. J., and HARRIS, ALLBEE, McGIVERIN, and LARSON, JJ.
Plaintiffs owned a business building in Marion, Iowa, in which automobiles were repaired and painted. About 1970 a paint booth was built inside the building at a cost of about $4500. In March of 1973 defendant rented the building from plaintiffs to be used by him in conducting the same business. Defendant knew that, because of unsafe wiring and inadequate ventilation, the paint booth did not comply with OSHA regulations.
Prompted by a warning from a government inspector, the defendant purchased a portable paint booth and removed the old one to create more work space. Plaintiffs knew of the change and did not complain of it. Defendant vacated the building in May of 1979. That same month this action was brought seeking an injunction to prevent defendant from moving the portable paint booth, or, in the alternative, seeking $5000 for removal of the cement block paint booth.
Trial was to the court which found defendant had removed the paint booth without plaintiffs' approval. Judgment was entered for plaintiffs in the amount of $9560. The only issue on appeal is damages which were assessed on the basis of replacement cost of the paint booth in May of 1979.
The court of appeals affirmed, stating it could find no Iowa case law on the question of damages for waste to real property. The court of appeals, like the trial court, believed the measure was the cost of repairing or restoring the property, computed at the time the lease terminated.
I. We believe the proper measure of damages for waste, when it occurs where the owner is aware of the injury, is the same as the ordinary measure for injuries to realty. If the property can be repaired or restored, it is the reasonable cost of repair or restoration, not exceeding the fair market or actual value of the improvement immediately prior to the damage. See generally Schiltz v. Cullen-Schiltz & Assoc., Inc., 228 N.W.2d 10, 18-19 (Iowa 1975); State v. Urbanek, 177 N.W.2d 14, 16-18 (Iowa 1970). Where the property cannot be repaired or restored, the measure of damages is the difference between its fair and reasonable market value immediately before and immediately after the injury. Watson v. Mississippi R. P. Co., 174 Iowa 23, 38, 156 N.W. 188, 194 (1916). It makes no difference here whether the building could or could not be repaired. Either way damages are to be measured as of the time of the injury. See Restatement (Second) of Property § 12.2(2), comment f (1977). It is apparent that replacement cost, computed here as of the time the lease terminated, was erroneous.
II. The question remains whether, because of the error, the case should be remanded for a new trial or whether judgment should be...
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