Fairchild v. Keene

• Decision Date: 03 February 1981
• Docket Number: No. 16592,16592
• Citation: 48 Ill.Dec. 475,416 N.E.2d 748,93 Ill.App.3d 23
• Parties: , 48 Ill.Dec. 475 George FAIRCHILD, Plaintiff-Appellee, v. Oliver J. KEENE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 748

416 N.E.2d 748

93 Ill.App.3d 23, 48 Ill.Dec. 475

George FAIRCHILD, Plaintiff-Appellee, v. Oliver J. KEENE, Defendant-Appellant.

No. 16592.

Appellate Court of Illinois, Fourth District.

Feb. 3, 1981.

Ensel, Jones, Blanchard & LaBarre, Springfield, for defendant-appellant; Dwight H. O'Keefe, III, Springfield, of counsel.

Sorling, Northrup, Hanna, Cullen & Chchran, Ltd., Springfield, for plaintiff-appellee; George W. Cullen, Elizabeth A. Evans, Springfield, of counsel.

GREEN, Justice:

A judgment was awarded here for negligently inflicted damage to an automobile in an amount which substantially exceeded the value of the vehicle. After the plaintiff elected to repair the vehicle, unforeseen problems developed. Under these circumstances, we affirm the judgment.

On February 11, 1976, plaintiff, George Fairchild, filed suit in the circuit court of Sangamon County against defendant, Oliver J. Keene, seeking damages for injury to his automobile resulting from a collision between vehicles driven by the parties on June 22, 1975. The case was tried at bench upon a stipulation as to the testimony. Defendant admitted his liability. Plaintiff was awarded a judgment for $3,733.33. Defendant appeals asserting (1) no recovery should have been permitted for plaintiff's loss of use of the vehicle, and (2) a total award in excess of the value of the vehicle was improper.

The parties do not dispute that (1) the vehicle was not used commercially, (2) plaintiff did not rent a substitute car, and (3) the reasonable rental value of a substitute car would have been $12 per day. In McCabe v. Chicago & Northwestern Ry. Co. (1919), 215 Ill.App. 99, a plaintiff whose pleasure automobile was unreasonably delayed in shipment by the defendant was permitted to recover for the delay upon the basis of the reasonable rental value of a similar vehicle although none was actually rented. The same rule was reiterated in Welter v. Schell (1929), 252 Ill.App. 586, where, as here, recovery was sought for loss of use of an automobile damaged in a collision. Recovery was denied there for failure of proof as to the reasonable time to make repairs. We are aware of no Illinois case refuting McCabe. In Goode v. Hantz (1946), 209 La. 821, 25 So.2d 604, recovery for the reasonable cost of renting a substitute vehicle for that tortiously damaged was denied where no such vehicle had been actually rented. See also 22 Am.Jur.2d Damages sec. 115, at 223 (1965).

Precedent on the question of whether a substitute chattel need actually be rented is meager, but we see no reason to reject McCabe. In almost all cases, the loss of use of an automobile causes some actual damage but a better measure than rental value is not easily found. To require the actual rental of a vehicle in order for the measure to apply would merely assure that most injured owners would do so. Those who could not afford to advance the money would be unfairly prejudiced. No substantial reduction in the economic costs of automobile collisions would result. The trial court properly considered the rental cost of a substitute vehicle.

Defendant's contention that the value of the damaged vehicle prior to the collision should have been the maximum award permitted presents a more difficult question. Plaintiff's theory is that he was entitled to recovery for (1) the reasonable cost of repairs, (2) the diminution in the value of the car even after the repairs, and (3) his loss of use of the car for the time reasonably necessary for the repairs to be made. Precedent supports an award for each of those elements under proper circumstances. In a case of this nature, the award for the element of cost of repairs may not exceed the diminution in the value of the chattel resulting from the collision and without repairs having been made. (Illinois Pattern Jury Instructions, Civil No. 30.10 (2d ed. 1971); see Santiemmo v. Days Transfer, Inc. (1956), 9 Ill.App.2d 487, 133 N.E.2d 539.) The obvious purpose of the rule is to require the injured party to mitigate damages and to insure that he only be made whole and not gain from the occurrence. (Santiemmo.) Defendant's theory would extend the rule to require consideration of the other elements of recovery claimed by plaintiff so that a damaged vehicle not be repaired when the cheapest method of compensating him for his loss would be to pay him to obtain a vehicle similar to the one damaged. Here, plaintiff's vehicle had a market value of $2,900 before the collision. The judgment for $3,733.33 was $833.33 in excess of the value of the car.

No Illinois case is directly in point, but defendant's theory is supported by some authority. (See 22 Am.Jur.2d Damages sec. 153, at 221-22 (1965); 169 A.L.R. 1114, 1115 (1947).) Recently such a theory was approved in Davis v. Sotomayer (1979), 149 Ga.App. 224, 253 S.E.2d 782.

We point out initially a disagreement we have with one hypothesis of defendant's theory. He assumes that the owner of a damaged...