Nashban Barrel & Container Co. v. G. G. Parsons Trucking Co.

• Decision Date: 08 January 1971
• Docket Number: No. 15,15
• Citation: 182 N.W.2d 448,49 Wis.2d 591
• Parties: NASHBAN BARREL AND CONTAINER CO., Inc., Respondent, v. G. G. PARSONS TRUCKING CO. et al., Appellants.
• Court: Wisconsin Supreme Court

Page 448

182 N.W.2d 448

49 Wis.2d 591

NASHBAN BARREL AND CONTAINER CO., Inc., Respondent, v. G. G. PARSONS TRUCKING CO. et al., Appellants.

No. 15.

Supreme Court of Wisconsin.

Jan. 8, 1971.

This is an action arising out of an accident that took place on August 22, 1968, involving two tractor-trailer trucks. Liability was conceded and only damage questions were litigated. The accident occurred in the south-bound lanes of U.S. Highway 41 south of Fond du Lac.

The respondent's trailer was a 1959 Trailmobile purchased in November, 1966, for $4,000 plus tires which cost $720. Respondent estimated the useful life of the trailer at five to ten years, although it was depreciated on a four or five year straight-line schedule at $800 a year. This extended life estimate was a result of the unusually light loads (empty barrels) carried.

The Nashban trailer was unusual in that its height from the ground was 13 feet 6 inches, whereas the normal trailer has a height of 12 feet 6 inches; its rear door opening was 108 inches, whereas the normal 12-foot 6-inch trailer has a rear door opening of 96 inches. Because of the unique dimensions of the trailer, a used one is rarely available, and it was pure happenstance that respondent was able to purchase the trailer in question in a used condition in 1966.

The collision resulted in damage to the left one-half of the trailer, extending forward from the rear of the trailer one-third of the way toward the front. Three of the trailer's eight tires were damaged, one being completely flat.

The testimony was in dispute as to the market value of the trailer at the time of the accident and the repairability of the damage.

Melvin Nashban, president of the respondent company, estimated the trailer's value just prior to the accident as $3,500, although there appeared no readily ascertainable market; new, such a trailer cost approximately $5,500. He further concluded, after an examination of the trailer with his head mechanic, that the trailer could not be repaired to its former safe condition.

Gregory DuCharme, assistant service manager for Fruehauf Trailer Corporation, called in by respondent for an estimate of repairs, testified that the trailer could be repaired for an estimated $2,363.08, and that his company would guarantee its work.

Paul Cinquemani, owner of Wisconsin Auto Damage Appraisers, viewed the trailer in its damaged condition on the day before the trial at appellants' request. He stated that although there is no 'blue book' quoting values of a trailer such as the one here involved, his opinion was that the trailer had a pre-accident value of $1,500, plus an additional $300-$500 for exceptional tires. He further stated that while the trailer could be physically repaired, it would not be economically feasible because of the trailer's market value.

Mr. Nashban further testified that he contacted the appellant-insurance company shortly after the accident, and numerous times after that, but was unable to receive any directions with respect to replacing the trailer. Eventually he had to rent a trailer and did so for the months of September, 1968, through June, 1969, at a total rental charge of $1,818. Attempts were made by respondent to purchase a used trailer, but none was available among the major trailer manufacturers contacted. Finally, a new trailer was ordered in November or December, 1968, delivery being made in May of 1969.

The jury awarded damages of $5,431, including the two items disputed here: $3,000 damage to the respondent's trailer and $1,818 for loss of use of the trailer which equalled the actual rental charges paid by respondent. Appellants' motions to amend the verdict and for a new trial were denied and this appeal was brought.

Kivett & Kasdorf, Milwaukee, for appellants; Keith I. Johnston, Milwaukee, of counsel.

Usow, Teper & Weiss, Milwaukee, for respondent.

WILKIE, Justice.

Three issues are raised on this appeal involving the trial court's failure to give certain instructions requested by the appellants at the time of trial:

1. Did the trial court err in failing to instruct that if respondent's vehicle was not susceptible of repair, no damages for loss of use of the vehicle were to be allowed?

2. Did the trial court err in failing to instruct that if it found that both the rules of repair cost and diminished market value applied, the jury should insert the lesser of the two amounts in answering the trailer-damage question?

3. Did the trial court err in failing to instruct that respondent had a duty

to mitigate its damages? No error in denying instruction

disallowing respondent recovery on loss of use if

vehicle was not repairable.

There was a jury issue on the question of whether the trailer was repairable. Both Nashban and an employee, Fred Suderland, testified that they did not think the trailer could be restored to a condition which would render it safe once again for use on the highways, especially in light of recent rules and regulations of the federal department of transportation.

A representative of Fruehauf Trailer Corporation, Gregory DuCharme, testified that the trailer could be so repaired and that the company would stand behind the job; the cost would be approximately $2,363.08 as of the date of the appraisal, September 9, 1968. He also stated, however, that 'it would not be up to me to state' whether repair or replacement should be recommended on a damaged vehicle.

Paul Cinquemani, the appraiser who viewed the trailer the day before the trial at appellants' request, testified that the repair could be done but that it would not be economically feasible to repair the trailer, based on his estimate of its value ($1,500).

Appellants contend that since a jury question was presented as to the repairability of the trailer, the jury should have been instructed that if it found the trailer could not be repaired, respondent could recover nothing for loss of use, i.e., the rental costs incurred.

As to recovery for loss of use of a motor vehicle damaged or destroyed, the various jurisdictions are sharply divided on the principle and application. ¹

Wisconsin has little case law on the subject. In Wright v. Mulvaney, ² a case involving damage to a commercial fisherman's net, the jury verdict included an amount for lost profits, based on the average prior catches. The court held this was too speculative. It stated that the proper award was the cost of repairing the net plus 'the value of the use of the net during the time they were necessarily deprived of its use, which was about 10 days.' ³

As to property totally damaged, two cases present apparently conflicting views:

In Gould v. Merrill Railway & Lighting Co., ⁴ involving injury to horses used in the business of the plaintiff, the court noted that the plaintiff might recover the loss of use of the injured horses, minus normal expenses of keeping them, and then stated:

'* * * But, where the full value at the time the horse was injured is recovered, there can be no additional recovery for loss of use of the horse.' ⁵

However, in a recent case, Schwalbach v. Antigo Electric & Gas, Inc., ⁶ wherein plaintiff's house was totally destroyed by a defective furnace explosion, this court stated:

'The proper measure of damages for loss of use of the dwelling house in this instance is an amount equal to the fair rental value of a house of like kind and quality in the area of Eland for such length of time as was reasonably necessary to reconstruct a house comparable to the one destroyed plus the reasonable value of necessary incidentals occasioned by moving.' ⁷

Neither of the parties has noted these cases, relying on the annotation (supra footnote 1) and the foreign cases cited therein.

The various jurisdictions outside Wisconsin take differing approaches. However, while some jurisdictions do deny recovery for loss of use where the damaged property cannot be repaired, others permit such recovery, and the annotation observes:

'It has been noted that the refusal in some jurisdictions to allow damages for loss of use of a totally destroyed vehicle appears to be the result of historical limitations on the action of trover at common law. Attention is called to the fact that cases herein clearly recognizing the right of an owner to recover damages for loss of use of a totally destroyed vehicle, apart from earlier Kentucky decisions stated infra, have occurred for the most part since World War II.' ⁸

The reasoning of the more 'modern' approach, as it was referred to by the Florida court ⁹ in allowing such a recovery, is best exemplified by the following statement of the Indiana Court of Appeals:

'* * * We agree with the appellant that seemingly many jurisdictions limit recovery of loss of use to situations where the property is repairable. However, this is not to say that such a position is proper or founded on sound logic. We fail to see any valid reason for the distinction between repairable or irreparable damage which would justify loss of use for the former and not the latter. In what manner can we justify the recognition of loss of use as a property right incidental to ownership in one instance and not the other? Have not both property owners lost the same thing, i.e., the use of such property? To hold to the contrary would be to effectuate a legal principle without a valid reason.' ¹⁰

Various other questions must be resolved if such a recovery is recognized:

(a) Time period of loss of use must be reasonable.

Again, the various jurisdictions are not in agreement, except that 'reasonableness' is the standard, whether loss of use is allowed where the damage is total, or whether limited only to cases of repairability.

For example, while Louisiana denies recovery for loss of use when the vehicle is totally destroyed, ¹¹ the courts of that state have frequently allowed damages for loss of use during a reasonable period while the owner of the vehicle determined the advisability of...