Gilwee v. Pabst Brewing Co.

• Decision Date: 05 March 1917
• Docket Number: No. 12325.,12325.
• Citation: 193 S.W. 886,195 Mo. App. 487
• Parties: GILWEE v. PABST BREWING CO.
• Court: Missouri Court of Appeals

193 S.W. 886

195 Mo. App. 487

GILWEE v. PABST BREWING CO.

No. 12325.

Kansas City Court of Appeals. Missouri.

March 5, 1917.

Rehearing Denied April 2, 1917.

Appeal from Circuit Court, Jackson County; Daniel E. Bird, Judge.

Action in justice court by W. H. Gilwee against the Pabst Brewing Company. Judgment for plaintiff on trial de novo in circuit court, and defendant appeals. Reversed and remanded.

Wilkinson & Wilkinson, of Kansas City, for appellant. E. A. Scholer, of Kansas City, for respondent.

BLAND, J.

As the result of a collision between an automobile belonging to plaintiff and one belonging to defendant, plaintiff in the circuit court recovered a judgment for $386 for damages to his said automobile. The case arose in a justice court, and in plaintiff's statement filed therein he claimed damages in the sum of $400 for depreciation in the market value of his said car on account of said accident, $266.75 for the necessary expense to repair said car, $7 per day for loss of the use of the car, and for expenses necessary to preserve it. At the trial in the circuit court the testimony shows that plaintiff paid out $7.50 for reassembling the parts of the care after the accident and hauling the car and parts to a garage, that he incurred a garage bill of $15, being for three months' storage on his car while he was attempting to dispose of it, and that it would have cost plaintiff $266.75 to repair his said car.

Appellant complains of an instruction given on behalf of plaintiff, wherein the jury were told that, if they found for plaintiff, they might allow him the difference between the reasonable market value of the car just before the accident and immediately thereafter; also all reasonable expenses incurred by plaintiff in a reasonable effort to preserve or restore the property injured. Appellant claims that the instruction was improper because, if plaintiff recovered the difference between the reasonable market value of the car immediately before the accident and immediately thereafter, he could not also recover the amount that it would have cost to restore the property, or, in other words, the amount that it would cost to repair the car.

Plaintiff was entitled to recover the difference in the reasonable market value of the car immediately before the accident and immediately thereafter. As it was the duty of plaintiff to use reasonable diligence in an effort to protect the property so as not to aggravate the damage, he was also entitled to recover the expenses of preserving the automobile from further injury, to wit, the $7.50 for reassembling the parts after the accident and towing the car to the garage, and $15 for three months' storage of the automobile incurred while he was attempting to dispose of the same. Plaintiff, if he had asked for it in his instructions, was also entitled to damages for the loss of use, if any, of the car for a reasonable period of time until the car could have been repaired. Hoffman v. Met. St. Ry. Co., 51 Mo. App. 273; Carter v. Railroad, 128 Mo. App. 57, 106 S. W. 611; Dammann v. St. Louis, 152 Mo. 186, 53 S. W. 932; Doty v. Railroad, 136 Mo. App. 254, 116 S. W. 1126; Berry on the Law of Automobiles (2d Ed. 1916) § 547.

In a case like the one before us, in measuring the damages to an automobile, the basic rule is just compensation for the actual loss sustained, and therefore plaintiff was not entitled to recover for the difference in the market value of the car immediately before the accident and immediately thereafter, and, in addition, the cost of repairing the automobile so as to make it, as near as possible, as good a car as it was before the accident; for to permit him to make both of such recoveries would be contrary to the rule that in a suit for damages one cannot be compensated twice for the same loss.

Plaintiff was entitled to recover the difference in the reasonable market value of the automobile immediately before the injury and immediately thereafter, the cost of preserving the car, and loss of use, if any, of the car for a reasonable period of time until it could be repaired, or for a reasonable repair ...