McPherson v. Kerr, 81-193

• Decision Date: 25 November 1981
• Docket Number: No. 81-193,81-193
• Parties: Peter McPHERSON, Plaintiff, Respondent and Cross-Appellant, v. Terry KERR and Mountain Logs, Defendants and Appellants.
• Court: Montana Supreme Court

Page 852

636 P.2d 852

195 Mont. 454

Peter McPHERSON, Plaintiff, Respondent and Cross-Appellant, v. Terry KERR and Mountain Logs, Defendants and Appellants.

No. 81-193.

Supreme Court of Montana.

Submitted on Briefs July 30, 1981.

Decided Nov. 25, 1981.

Law Firm of Gerald D. Schultz, Hamilton, for defendants and appellants.

Larry Persson and Richard A. Weber, Jr., Hamilton, for plaintiff, respondent and cross-appellant.

SHEEHY, Justice.

This is an appeal and cross-appeal from a judgment in the Fourth Judicial District, Ravalli County. After a hearing without jury, the District Court awarded a joint and several judgment against the defendants in the sum of $6,000.72, plus costs. Defendant Terry Kerr does not appeal.

McPherson originally brought this action against Mountain Logs and Terry Kerr to recover damages he suffered as a result of an accident involving his semi-trailer in Idaho on December 7, 1978.

The facts, as found by the District Court, are set forth below.

McPherson had an ownership or leasehold interest in a 1961 flatbed trailer which he used in his business of hauling farm products and, occasionally, log homes. He acquired his interest in the trailer in 1976. At that time, the trailer was valued at $5,500. On the date of the accident, the trailer was worth $4,000. In November 1978, McPherson left his trailer in the possession of Mountain Logs-the District Court concluded that this arrangement constituted a loan for use. McPherson and Mountain Logs agreed that Mountain Logs was to use the trailer for the sole purpose of hauling one load of logs to Sun Valley, Idaho. This trip was completed without difficulty.

Subsequently, without the knowledge or consent of McPherson, and against his expressed directions, Mountain Logs made arrangements for defendant Terry Kerr to transport a load of logs to California using McPherson's trailer. On December 7, 1978, McPherson's trailer, loaded with logs, left for California. The trailer was towed by a semi-tractor owned by Kerr and driven by Gerald Long, an employee of Kerr. While in transit, an accident occurred on Lost Trail Pass in Idaho. Long was killed, Kerr's tractor was demolished, and McPherson's trailer sustained repairable damages of.$2,252.60. The accident and resulting damage to McPherson's trailer was proximately caused by the negligence of Gerald Long. Soon after the accident the trailer and the remnants of the tractor were towed to Missoula at the request of an adjuster for Kerr's insurance carrier. The towing bill for McPherson's trailer was $1,100.00. Storage charges accumulated at the rate of $5.00 per day and on the day of trial, the storage bill totaled $2,370.

Soon after the accident, McPherson attempted to have the trailer released from storage so that repairs could be commenced but was unable to meet the requirement that he first pay the towing and storage charges. The trailer therefore remained in storage and McPherson's trucking operation was temporarily shut down. McPherson purchased a similarly equipped trailer in the early part of February 1979. The District Court concluded that McPherson acted with reasonable diligence to mitigate his damages by procuring occasional hauling jobs, and by replacing the damaged trailer as soon as possible. It concluded further that due to his financial situation, it was impossible for him to further mitigate his damages and the law would not require him to perform an impossibility.

The District Court originally found that during the two months between the date of the accident and the purchase of a new trailer, McPherson had suffered a loss of earnings in the amount of $3,500. This loss, along with the costs of towing, storage, and repair, was included in the total damages awarded to McPherson. On reconsideration, however, the District Court reduced the award of damages for lost earnings from $3,500 to $350.

Mountain Logs presents the following issues for review:

1. Is Mountain Logs liable for loss of earnings and storage charges for property damaged as a result of the delivery to Kerr when such damages were at least partially incurred by McPherson's financial inability to remove his trailer from storage?

2. Is Mountain Logs liable for the towing of McPherson's property to storage when the towing was ordered done by defendant Kerr, a third party, to whom the property had been misdelivered?

McPherson, cross-appellant, presents a third issue:

3. Did the District Court err in amending its judgment to reduce the award of lost earnings to McPherson from $3,500 to $350?

We hold, with regard to the first issue, that Mountain Logs is liable for the storage costs and the lost earnings sustained by McPherson.

In its brief, Mountain Logs admits liability for all damages proximately caused by its mishandling of McPherson's trailer. It then cites section 70-6-204, MCA, for the proposition that its liability is limited to $4,000, the value of the trailer. The District Court held that this was a loan for use and we see no reason to disturb the District Court's holding. Section 70-6-204, MCA, therefore, does not apply. The proper measure of damages in this case is found in section 27-1-317, MCA, which states:

"For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all detriment proximately caused thereby, whether it could have been anticipated or not."

Mountain Logs contends, however, that even if section 27-1-317, is controlling, McPherson's recovery, at least for towing, storage, and repair charges should be limited to the value of the trailer. Mountain Logs also contends that McPherson's recovery for lost earnings should not include time lost due to his financial inability to remove the trailer from storage and make repairs. These assertions are based primarily on Spackman v. Ralph M. Parsons Company (1966), 147 Mont. 500, 414 P.2d 918; Stahl v. Farmer's Union Oil Company of Richland (1965), 145 Mont. 106, 399 P.2d 763. These cases are distinguishable.

In Stahl, 399 P.2d at 768, this Court stated that the limitation of total damages to the value of the property was proper under the "odd fact situation" presented in that case. Stahl does not, however, establish an ironclad rule that recovery is limited to the value of the damaged or destroyed property.

In Spackman, the plaintiff was suing to recover for damages suffered as a result of the flooding of his basement with raw sewage. Those portions of Spackman relied upon by Mountain Logs deal primarily with valuation of property. The value of the McPherson's trailer is not questioned on appeal. Furthermore, there was nothing in Spackman comparable to the towing and storage charges present in the case at bar. Spackman, therefore, does not require that McPherson's damages be limited to the value of the trailer.

In Spackman, this Court stated:

"As for the issue of compensatory damages, the question is always a difficult one. In tort actions, the wrongdoer is liable, in general, for any injury which is the natural and probable consequence of the...