Lester v. Doyle

• Decision Date: 12 June 1948
• Docket Number: 37184.
• Citation: 194 P.2d 917,165 Kan. 354
• Parties: LESTER v. DOYLE et al.
• Court: Kansas Supreme Court

194 P.2d 917

165 Kan. 354

LESTER v. DOYLE et al.

No. 37184.

Supreme Court of Kansas

June 12, 1948

Appeal from District Court, Kearny County; Fred J. Evans, Judge.

Action by W. A. Lester against Jim Doyle and another, co-partners doing business under the name and style of Service Oil Company, for damages sustained in a collision between defendant's truck and a herd of sheep owned by plaintiff in which defendants filed a cross-petition for damage to the truck and damages for loss of use thereof. From an order and judgment sustaining a demurrer to part of the cross-petition defendants appeal.

Syllabus by the Court.

1. A proper measure of damages for an injury to a truck which could be repaired so that when repaired it would be in as good condition as before the injury, is the reasonable cost of repairs, plus the reasonable value of the use of the truck while being repaired with ordinary diligence, but not exceeding the value of the truck before the injury.

2. Where defendants, whose truck has been damages, seek by cross-petition to recover the difference in value of the truck immediately before a collision and immediately thereafter, they may not recover for loss of use of the truck.

3. The record examined, and held, the trial court did not err in sustaining a demurrer to that part of a petition seeking to recover for loss of use of a truck

Ray H Calihan, Logan N. Green and Roland H. Tate, all of Garden City, for appellants.

Wm. Easton Hutchison, C. E. Vance, C. R. Hope, A. M. Fleming and Bert J. Vance, all of Garden City, for appellee.

THIELE Justice.

Defendants appeal from an order and judgment of the trial court sustaining a demurrer to a particular part of their cross-petition.

Plaintiff commenced an action to recover damages growing out of a collision occurring about January 1, 1945, on a public highway between defendants' truck and a herd of sheep owned by plaintiff. Defendants filed an answer to the petition and a cross-petition charging plaintiff with negligence as a result of which their truck was 'greatly damaged'; that its value was $750 immediately before the collision and immediately thereafter was only $100. Defendants further alleged that at the time of the collision the United States was engaged in war and that by reason of the emergencies of war it was impossible to obtain necessary parts to repair their truck, and it was impossible for them to purchase or obtain another truck to replace their damaged truck; that the truck was so badly damaged that it could not be repaired or replaced because of the emergency and was rendered useless for a period of over ninety days and they were deprived of its use for that period; that the reasonable value of the use of the truck in their business (sale and distribution of petroleum products) was $15 per day, and by reason of the loss of use they had suffered damages in the amount of $1,350. They prayed for judgment against plaintiff for the sum of $2,100. Plaintiff included in his reply a demurrer 'to that portion of the cross-petition of the defendants, wherein they seek to recover the sum of $1,350.00 damages for the use of the truck, for the reason that such portion of said cross-petition des not state facts sufficient to constitute a cause of action.' The trial court ruled that the defendants could not recover damages for loss of use of the truck in addition to the loss sustained to the truck itself and sustained the demurrer. From that ruling the defendants perfected their appeal to this court.

In their brief appellants direct our attention to decisions holding that under the facts and circumstances in those cases the question of negligence was for the trier of the facts and was not to be determined as a matter of law. Appellees have discussed those cases and directed our attention to others. In view of the issue as raised by the demurrer and as ruled on by the trial court, we do not have before us any question as to negligence, but only a question as to what may be recovered assuming that negligence has been proved.

In support of their contention that they may recover for loss of use of their truck under the facts alleged, appellants direct our attention to 5 Am.Jur. 907 and 42 C.J. 1291, holding generally that loss of use of an automobile, pending its repair after an injury, may be recovered in addition to the cost of repairs, and to annotations in 4 A.L.R. 1350, 32 A.L.R. 706, 711, 713, and 78 A.L.R. 910, 912, where decisions to that effect are cited. A subsequent annotation, later referred to, may be found in 169 A.L.R. 1074 et seq. In addition to the above authorities, appellants rely on McCoy v. Fleming, 153 Kan. 780, 113 P.2d 1074, where this court affirmed a judgment of the trial court allowing recovery of $9 for loss of use of an automobile. That case was tried by the court upon stipulated facts. The principal contention by the appellant was that the plaintiff was guilty of contributory negligence. Appellant did complain that the trial court adopted the wrong measure...