National Dairy Products Corp. v. Jumper
| Decision Date | 05 June 1961 |
| Docket Number | No. 41894,41894 |
| Citation | 241 Miss. 339,130 So.2d 922 |
| Parties | NATIONAL DAIRY PRODUCTS CORPORATION v. H. G. JUMPER and James L. Jumper. |
| Court | Mississippi Supreme Court |
Stovall & Price, Corinth, for appellant.
Robert B. Smith, Ripley, for appellees.
The principal question pertains to the measure of damages for loss of use of a commercial vehicle. Appellees, H. G. Jumper and James L. Jumper, brought this suit in the Chancery Court of Tippah County against appellant, National Dairy Products Corporation, seeking damages for injury to their tractor-trailer unit, resulting from a collision between the tractor and a cow owned by the corporation. The suit was based on a claim that defendant negligently maintained its fences, and, as the proximate result, the cow escaped from the field and walked in front of the tractor at night. Under Miss.Code 1942, Rec., Sec. 4876-05, the burden of proof is on the owner of such livestock to prove lack of negligence. After hearing considerable testimony, the court found that the tractor driver was not guilty of contributory negligence, and defendant's negligence proximately caused the damages to complainants' vehicle. There was substantial evidence to support the findings of defendant's liability, and that one proper element of damages was the cost of repairs to the tractor, $1,104.27.
As another element of damages, the trial court also awarded appellees $4,050 for loss of profits for the six weeks during which the tractor was being repaired, which allegedly resulted from their inability to haul corn during this period.
When a commercial vehicle which has been injured may be repaired, if the repairs will substantially restore it to its former condition, the cost of such repairs will ordinarily furnish an element of damages. Annotation 4 A.L.R. 1350, 1352-1355 (1919); 5A Am.Jur., Automobiles and Highway Traffic, Sec. 1114. If in addition to the physical injury the owner has lost the vehicle's use for a period of time, as during the process of repair, he is entitled to the value of the use of the property during this period. 4 A.L.R. 1355. The weight of authority is that, except in special circumstances, loss of profits cannot be considered as a measure of such damages. Such an element usually contains considerable speculation and conjecture. 4 A.L.R. 1361; 5A Am.Jur., ibid., Sec. 1116; 25 C.J.S. Damages Sec. 83, p. 602; Annotation 169 A.L.R. 1074 (1947). A more precise and easily defined measure for loss of use of a commercial vehicle is the rental or usable value of the property during the period the owner has been deprived of it. This is the generally recognized criterion. Damages for loss of use should be measured by the cost of hiring another vehicle while the repairs are being made. The rental value of a replacement vehicle may be recovered, even though no other was actually procured during the interval. 5A Am.Jur., ibid., Sec. 1115.
Where no substitute vehicle can be rented in the market and area reasonably related to complainant's business and trade area, loss of profits may be recovered where the evidence is of sufficient probative value to adequately and clearly measure such loss of profits. However, an award for loss of profits is erroneous in the absence of a showing that no other vehicle could be rented or that the rental value could not be determined. 25 C.J.S. D...
To continue reading
Request your trial
-
Munn v. Algee
...See Buras v. Shell Oil Co., 666 F.Supp. 919, 924 (S.D.Miss.1987) (applying Mississippi law); National Dairy Prods. Corp. v. Jumper, 241 Miss. 339, 130 So.2d 922, 923 (1961); Levy v. J.A. Olson Co., 237 Miss. 452, 115 So.2d 296, 298 (1959); North Am. Accident Ins. Co. v. Henderson, 180 Miss.......
-
Spreader Specialists, Inc. v. Monroc, Inc.
...N.E. 350 (1924); Kopischke v. Chicago St. P., M. & O. Ry. Co., 230 Minn. 23, 40 N.W.2d 834 (1950); National Dairy Products Corporation v. H.G. Jumper, 241 Miss. 339, 130 So.2d 922 (1961); Winter v. Elder, 492 S.W.2d 146 (Mo.Ct.App.1973); Hatch v. Heim, 200 Neb. 735, 265 N.W.2d 444 (1978); F......
-
Camaraza v. Bellavia Buick Corp.
...(Fla.Dist.Ct.App.1968); Chriss v. Manchester Ins. & Ind. Co., 308 So.2d 803, 805-806 (La.App.1975); National Dairy Products Corp. v. Jumper, 241 Miss. 339, 130 So.2d 922, 923 (Sup.Ct.1961); Tri-State Motor Transit Co. v. Navajo Freight Lines, Inc., 528 S.W.2d 475, 484 (Mo.Ct.App.1975) ; Mou......
-
Rolison v. Fryar
...settlement agreement. ¶ 26. An injured party has a duty to take reasonable steps to mitigate damages. Nat'l Dairy Prods. Corp. v. Jumper , 241 Miss. 339, 344, 130 So.2d 922, 923 (1961). Under the doctrine of avoidable consequences, an injured party is not entitled to recover damages which h......