Perkins v. Brown

• Decision Date: 09 July 1915
• Docket Number: 83.
• Citation: 177 S.W. 1158,132 Tenn. 294
• Parties: PERKINS v. BROWN.
• Court: Tennessee Supreme Court

177 S.W. 1158

132 Tenn. 294

PERKINS v. BROWN.

No. 83.

Supreme Court of Tennessee.

July 9, 1915

Certiorari to Court of Civil Appeals.

Action by Battle M. Brown against B. M. Perkins. From a judgment for plaintiff, defendant appealed to the court of appeals, and the judgment being there affirmed, he brings certiorari. Reversed and remanded.

W. P Biggs, of Memphis, for appellant.

Wilson & Armstrong, of Memphis, for appellee.

WILLIAMS J.

Brown's automobile was injured in a collision with the automobile of Perkins, due to the negligent operation of the latter machine by the chauffeur; and the only questions raised for determination by the petition for certiorari and the accompanying assignments of error are as to the right to damages and as to the true measure of damages for the consequent detention of the injured automobile in shop for repairs.

The car of Brown was one used for pleasure, and not in trade or for profit. During the period of detention for repairs Brown paid nothing for the hire of a substitute automobile, and he and his family forewent their customary pleasure rides.

The trial judge instructed the jury that Brown as plaintiff below, was entitled to recover the rental value of an automobile similar to the one injured during the period of detention and loss of use; and allowed testimony to be introduced, over defendant's objection, to the effect that such a machine was to be hired at from $90 to $100 per week.

The first insistence of petitioner for error is that nothing for the loss of use can be allowed, since the car injured was one that was used for recreation or luxury and not profit, and its owner, in point of fact, had made no expenditure for the use of another car.

The authorities are quite harmonious to the effect that the owner of a vehicle held for use may recover for the loss of its use, by reason of tortious injury, while being repaired, in addition to the cost of the necessary repairs. Brown v Southbury, 53 Conn. 212, 1 A. 819: Johnson v Holyoke, 105 Mass. 80; Mizner, v. Frazier, 40 Mich. 592, 29 Am. Rep. 562; The Atlas, 93 U.S. 302, 23 L.Ed. 863; Sedgwick, Damages (9th Ed.) § 195.

Nor may it be held, under the authorities, that the right to recover substantial damages, as distinguished from nominal damages, depends upon the precedent use of the car for profit. Compensation for injury being the rule, there can be no just reason for the allowance of the usable value in the one case and its disallowance in the other. As pointed out by Mr. Sedgwick (section 243a), the value of the use of personal property is not the mere value of its intended use, but of its present potential use, whether availed of or not by its owner. His right of user, whether for business or pleasure, is absolute, and whoever injures him in the exercise of that right cannot complain when held to respond on that basis. Cook v. Packard Motor Car Co., 88 Conn. 590, 92 A. 413, 418; Murphy v. New York City Ry., 58 Misc. 237, 108 N.Y.S. 1021; Universal Taximeter Cab Co. v. Blumenthal, 143 N.Y.S. 1056; Sedgwick, Damages, § 243b.

It is next urged that a disallowance of the usable value of the car must result, because the plaintiff did not actually expend money in hiring a substitute car for recreation purposes. This insistence also is not tenable. Cook v. Packard Motor Car Co., supra. Two recent decisions of the House of Lords of England have ruled the point. In The Greta Holme (1897) A. C. 597, a recovery was allowed for the loss of the use of a dredger, injured in a collision, although the owner was out of pocket no definite sum for a substitute during the period necessary for repairs; and in The Mediana, (1900) A. C. 112, where there was a lightship substituted for the lightship damaged, and it was argued that, as nothing was paid for the hire of the substitute, no damages were consequent or allowable. Lord Chancellor Halsbury gave his opinion, and the judgment was, in opposition to that argument.

A third contention of petitioner is that the usable value of an automobile is not its rental value, as charged by the trial judge; and that it was error for the trial judge to permit the introduction of the above recited testimony as to the market rental value per week of a similar car at garages in the city of Memphis.

Whether the two terms "rental value" and "usable value" may be treated as equivalent terms when applied to personal property so detained is a matter on which the authorities seem to differ. The Connecticut court in Cook v. Packard Motor Car Co., supra, holds to the view that they are not equivalent terms, and that such a plaintiff "cannot recover the rental value of his car during the period of detention, for such rental value includes a substantial allowance for depreciation and repairs, to which the plaintiff's car has not, in the meantime, been subjected." On the other hand the intermediate appellate courts of New York and Illinois hold that the rental value of a car during the period of loss of its use is a proper measure of damages in behalf of the plaintiff. Universal Taximeter Co. v. Blumenthal, supra; Trout Auto., etc., Co. v. People's, etc., Co., 168 Ill.App. 56, 60.

It is not necessary for us to determine the point on this record since we are of opinion that if the market rental value be a proper measure of damages in such case, then rental value was fixed on the trial on a basis that was erroneous for two reasons. It is manifestly unjust to the defendant to have either rental or usable value fixed in behalf of the plaintiff on the basis of a full daylight rental charge for an automobile, as was permitted in this case, when the proof shows that the plaintiff and his family customarily used the car only during a few hours of a day for pleasure and shopping...