Falcone v. Perry
| Decision Date | 30 June 1966 |
| Docket Number | No. 37741,37741 |
| Court | Washington Supreme Court |
| Parties | Dan FALCONE and Tony Falcone, Executors of the Estate of Rosa Falcone, Deceased, Respondents, v. Sam PERRY and Jane Doe Perry, his wife, and Bob Gilliam Boat Works, a Washington company, and Bob Gilliam and Jane Doe Gilliam, his wife, Appellants. |
Lycette, Diamond & Sylvester, Ralph M. Bremer, Seattle, for appellants.
Abbey, Piehler, Carras & MacFarland, Vincent H. D. Abbey, Seattle, Parker & Borawick, Myron L. Borawick, Midway, for respondents.
*
The executors of an estate brought this action to recover damages to a house caused by a runaway truck. The jury returned a verdict of.$4,095 for plaintiffs (respondents). The defendant truck driver is hereinafter referred to as if he were the sole appellant. The main question is the amount of damages.
On August 5, 1961, appellant's employer requested him to drive a tractor with a flat bed trailer to a certain boat shop, load a hydroplane and deliver it to the Gold Cup races. Appellant proceeded to the boat shop. He parked the truck parallel to the curb of a street with a 30 per cent grade, in a position to load the hydroplane, with the engine running. The handbrake was set, the air brakes were operating and the appellant had the foot pedal depressed. Also, another person placed a 6 by 8 timber, 12 feet long, behind the rear wheels as additional security.
When appellant noticed difficulty in loading the hydroplane, he left the cab of his truck to help. The truck engine died, causing the air brakes to lose pressure. The truck rolled backwards over the timber down the street into respondents' house, causing extensive damage.
The house had been built in 1906. It had three bedrooms, a dining room, a living room, a large kitchen, pantry, bath and 3/4 basement. It contained 1,056 square feet of floor space. Since 1951, the house had been rented. At the time of the accident, the rent was $47.50 a month. On the rear of the lot was a concrete block shop rented for $110 a month. The house was located in a manufacturing zone which was established in 1958. It had not been repaired since the accident and was vacant at time of trial. (The house had been kept in repair from year to year at nominal expense.)
In proving their damages, respondents produced an expert witness who appraised the house from three angles: income approach at $6,000; cost less depreciation approach at $4,241; and under the comparative market data approach at $4,000. 1 Another witness testified that the house could be repaired for $4,400 plus $176 sales tax.
A real estate broker appraised the house at $6,000 and gave the house a useful life of 22 years.
The appellant's appraiser used the fair market value approach. He stated the property was in a manufacturing zone, which was its highest and best use. The value before the accident was $28,000 and the value after was $27,600--the difference being the cost of removal of the house. The house itself was a detriment to the lot and did not add any value to it. It was a legal nonconformity on the lot. The appellant's expert testified that the damage was only $400, the cost of further demolition and removal of the entire house. According to appellant's brief, his expert arrived at this figure as follows:
The gross rental was computed, less an allowance for vacancy and credit loss, less taxes and owner's expenses, and Less a reserve for what the land should carn if it was improved to its highest and best use, with the conclusion arrived at that the dwelling had no value, since the rental income was not adequate to pay what the land should earn. (Italics ours.) There were seven assignments of error:
(1) the court erred in admitting testimony concerning the assumption of severability of house from the lot and so valued; (2) in failing to strike such testimony; (3) in limiting cross-examination of respondent; (4) in giving instruction No. 13, on issue of damages; (5) in failing to give appellant's proposed instruction No. 4; (6) in denying motion for new trial; and (7) entering judgment on the verdict.
Assignments 1, 2, 4, 6 and 7 were argued together. Appellant conceded liability and the sole question was the amount of damages. In his brief was stated:
Upon the trial of this matter, both parties regarded the proper measure of damages as the cost of repairs to the building, or the diminution in value of the plaintiff's property, whichever were the lesser.
The respondents' evidence placed a valuation upon the house by three different methods of appraisal. It was the valuation of this house separate from the valuation of the lot on which it rested which was the target of the first two assignments of error.
The essence of instruction No. 13, to which an exception was taken, was as follows:
The measure of damages with reference to the plaintiffs' property in this case is the entire cost of restoring the damage to return the property to its former condition unless the cost exceeds the diminution in value as a result of the accident, in which event the measure of damages would be the difference between the fair cash market value of the plaintiffs' property immediately before and immediately after the accident. You must adopt as the measure of damages the lesser of the two amounts, the cost of repair or the diminution in value as I have instructed you.
If you find the plaintiffs' building could be restored to its former condition, then you may take into account in determining plaintiffs' damages the cost of restoration of the building and such loss of rent, if any, as you find plaintiffs may have sustained during the time when, with reasonable diligence, the building could have been restored to its former condition.
This instruction followed the concession set forth from appellant's brief, supra. Moreover, it followed the rule of law laid down in the cases relied on by appellant. Burr v. Clark, 30 Wash.2d 149, 158, 190 P.2d 769, 774 (1948): 'In the case of real property, where the injury is only temporary, and the property can be restored to its original condition at a reasonable expense and at a cost less than the diminution in the value of the property, the general rule for the measure of damages is the cost of restoration.' In this case was quoted the general rule from a Nebraska case (Koyen v. Citizens' National Bank, 107 Neb. 274, 185 N.W. 413) as follows:
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Thompson v. King Feed & Nutrition Service, Inc.
...Co., 73 Wash.App. 523, 871 P.2d 601 (1994), DeYoung v. Swenson, 6 Wash.App. 452, 493 P.2d 1247 (1972), and Falcone v. Perry, 68 Wash.2d 909, 416 P.2d 690 (1966) to support the contention that the "lesser than" rule is correctly applied when a barn is negligently destroyed by fire. In respon......
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...v. Klein, 49 Wash.2d 216, 220, 298 P.2d 1099 (1956); Grant v. Leith, 67 Wash.2d 234, 235, 407 P.2d 157 (1965); Falcone v. Perry, 68 Wash.2d 909, 913, 416 P.2d 690 (1966); Butler v. Anderson, 71 Wash.2d 60, 426 P.2d 467 (1967), overruled on other grounds in Chaplin v. Sanders, 100 Wash.2d 85......
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...Restatement (Second) of Torts § 929 (1979); cf. Grant v. Leith, 67 Wash.2d 234, 235, 407 P.2d 157 (1965); Falcone v. Perry, 68 Wash.2d 909, 416 P.2d 690 (1966) ($4,000 cost to repair a house was allowed as against an "economic" decrease in land value of only $400). To limit repair costs to ......
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...607, 145 P.2d 244 (1943). We may not speculate upon the existence of facts that do not appear in the record. Falcone v. Perry, 68 Wash.2d 909, 915, 416 P.2d 690 (1966). Turning to the statement of facts actually certified by the trial judge, we find it has been prepared in two parts. The fi......