Kohl v. Arp
| Citation | 17 N.W.2d 824,236 Iowa 31 |
| Decision Date | 06 March 1945 |
| Docket Number | 46651. |
| Parties | KOHL v. ARP et al. |
| Court | United States State Supreme Court of Iowa |
Elliott Shuttleworth & Ingersoll, of Cedar Rapids, for appellant.
John D. Randall, of Cedar Rapids, for appellee.
Plaintiff's truck, equipped with a lime box or spreader bolted to its frame, was parked parallel to the curb on a Cedar Rapids street while the driver went over to an eating place. The sound of a crash outside caused him to investigate and he found his truck had been struck by a truck belonging to defendant Arp and driven by defendant Smith. The details of the collision are not material to this appeal since defendant-appellants concede that a question was made for the jury on the issue of liability.
The jury returned a verdict for $1,279.24. Answers to interrogatories show $275 of this amount was for cost of replacement of the lime box, $554.24 for repairs to the truck itself, and $450 for loss of use. The evidence showed without contradiction that the lime box, worth $375, was damaged beyone repair and after the accident was worth only $100 as junk. The evidence of the cost of repair of the truck was also undisputed.
Appellants say the errors relied on all relate directly or indirectly to the question of damages, 'and for the most part arise out of appellee being permitted to recover not only the full replacement value of the lime box on appellee's truck, the full repairs to appellee's truck, but in addition the value of the loss of use of the combined unit of the truck and the lime box.'
I. We think it may be fairly said no question is made on appeal as to the item of $275 for replacement value of the lime box or the item of $554.24 for repairs to the truck. The entire controversy involves the one item of $450 said to be 'for the value of the use of said truck.' Appellants complain that the court permitted the lime box to be treated on the one hand as an item separate from the truck, for the purpose of assessing replacement value, and on the other as a part of the combined unit, for the purpose of assessing loss of use value.
The petition alleged in one paragraph the value of the lime box $375 and the salvage, $100. The proof was made in that way. In another paragraph plaintiff alleged that 'he lost the use of said truck * * * thirty-three days, and that the reasonable value of said use was $30 per day.' His proof, however, showed the loss of use of the combined unit, truck and lime box, was $30 per day.
Appellants contend that he thereby violated the rules for measure of damages laid down by us in Langham v. Chicago, R. I. & P R. Co., 201 Iowa 897, 901, 208 N.W. 356, 358. These rules are familiar to the profession. The clearly contemplate that where the injury to the vehicle can be repaired so that when repaired it will be in as good condition as it was before the injury, the measure of damages is the reasonable cost of repair 'plus the reasonable value of the use of the car while being repaired with ordinary diligence not exceeding the value of the car before the injury.'
Of course in the case of total destruction the measure is the reasonable market value of the automobile immediately before its destruction. And when, though not totally destroyed, it cannot, by repair, be placed in as good condition as it was in before the injury, the measure is the difference between its reasonable market value before and its reasonable market value after the injury. Langham v. Chicago, R. I. & P. R. Co., supra, and cases cited. In the last two instances damages for loss of use are not allowed.
Do these rules require or permit their separate application to separate parts of an injured combined unit such as we have here? Appellants argue that appellee was permitted to recover the full replacement value of the lime box as a separate unit, and in addition to recover something for loss of use of its in combination with the truck proper. We think this argument is not sound. The truck and box were bolted together and used together. They constituted one truck. It must, we think, be conceded that if the petition had pleaded injury to the truck and lime box as a single unit the measure of damage would be the reasonable cost of repairs including the reasonable cost of new lime box (less salvage), plus the reasonable value of loss of use of the combined unit. The fact that the lime box had to be procured separately instead of being furnished by the repair man who repaired the truck itself could make no difference in the application of the rule. The net cost of the new lime box would still be a part of the cost of repair of the combined unit which constituted the injured vehicle.
It is true the petition is not well drawn to present this theory but we do not deem it fatally defective in that respect. It does, by reasonable construction, show an injury to a combined unit consisting of truck and lime box. To hold otherwise would be unduly technical. The pleading in separate paragraph of the item of cost of replacement of lime box does not change the rule as to measure of damages.
No case is cited by appellants that attempts to apply one part of the rule to a totally destroyed part of an injured vehicle that is otherwise repairable. And in spite of some inartificiality in pleading, we think the rule of damages must be applied here to the combined unit and that the net cost of the new lime box must be treated as a part of the cost of repair. It then logically follows that the value of the loss of use of the truck and lime box as one unit was proper to be considered.
II. Before leaving this proposition we have to consider whether there was any reversible error in the admission of evidence as to the value of the loss of use. Particular objection is urged that appellee was not shown qualified to testify as to the value per day. It is urged that he admitted he had never rented a truck for his own use and had never leased one of his trucks to any one else.
But he was the owner of the unit in question. It is quite generally held that the owner of a chattel may testify to its value without qualifying as an expert. 20 Am.Jur., Evidence, § 894. By analogy he should be held competent as a witness on value of use. He testified that he had rented dump trucks to the government and had operated equipment of the kind involved here for three years and knew what it cost and what it brings in.
We think his testimony as to value was admissible and its weight for the jury. See Crain v. Sumida, 59 Cal.App. 590, 211 P. 479, 482.
III. Before proceeding further we have to dispose of some procedural questions. Appellee strenuously urges that the instructions are not a proper part of the Record and moves to strike them accordingly.
When appellants filed their typewritten abstract under Rule 340(a) of our Rules of Civil Procedure on August 9, 1944, the instructions were not included and there was no statement of points relied on for reversal as required by Rule 340(b). The abstract did, however, contain appellants' exceptions to instructions in which were set out the particular exceptions which they now urge on appeal.
After the typewritten abstract was filed appellee proposed amendments thereto pursuant to Rule 340(c), and later an order was entered settling the Record. The instructions were of course not included. Before the Record was printed and filed, however, the district court, by an ex parte order, gave appellants leave to amend it by adding thereto the instructions and requests for instructions.
The printed Record (with instructions and requests for instructions included) was filed October 25, 1944, in the district clerk's office and no attack was made on it by appellee until January 20, 1945. Appellants' Brief and Argument had then been on file since December 8. Appellee's Motion to Strike, filed with his brief and argument, has been ordered submitted with the case.
On February 1, 1945, appellants filed with the clerk of the district court a typewritten 'Amendment to Typewritten Record of Trial Proceedings' setting out the instructions given and requested, and stating that the amendment was made 'pursuant to authority granted by court order.' No such court order is included in the certification to us.
On February 3, 1945, the clerk of the district court certified to us a copy of appellee's motion to set aside order 'made on or about February 1, 1945,' 'wherein the Clerk of the District Court of Linn County, Iowa, was ordered and directed to certify defendants-appellants' amendment to the typewritten abstract to the Supreme Court'; combined with it was appellee's 'motion to strike the amendment to typewritten record.'
We are not sure we have detailed all the various motions and resistances by which the parties marched and countermarched, almost as if determined to avoid following the plain and simple provisions of Rule 341 of our Rules of Civil Procedure. Their procedure is not set out here as a model to be followed generally. However, we are not prepared to say there was not a substantial compliance with Rule 341(a), which provides 'If anything material to either party is omitted from the Record on...
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