Peterson v. Bachar

• Decision Date: 06 June 1964
• Docket Number: No. 43597,43597
• Citation: 392 P.2d 853,193 Kan. 161
• Parties: V. E. PETERSON, d/b/a Memorial Art Company, Appellee, v. Kent A. BACHAR, Appellant.
• Court: Kansas Supreme Court

Page 853

392 P.2d 853

193 Kan. 161

V. E. PETERSON, d/b/a Memorial Art Company, Appellee, v. Kent A. BACHAR, Appellant.

No. 43597.

Supreme Court of Kansas.

June 6, 1964.

Syllabus by the Court

1. The general rule that in the case of the complete destruction of a motor vehicle the measure of damages is the reasonable market value thereof immediately before the destruction, must be considered in connection with the general rule that, where personal property is damaged by the negligence of another, a measure of damages should be applied which will compensate the injured party for the reasonable loss sustained as the proximate result of the negligent act.

2. Loss of profits from earnings or the use of a motor vehicle completely demolished by a wrongdoer may be recovered where it is shown that the vehicle has been specially constructed for a particular use and a substitute vehicle cannot be obtained without delay.

3. Recovery for loss of profits from earnings or loss of use of a wrongfully demolished motor vehicle depends upon the facts and circumstances of the particular case.

4. Damages for the loss of use of a wrongfully demolished motor vehicle cannot be considered unless the computation can be made with reasonable certainty, and evidence of a speculative or problematical loss of use is not admissible to show such damages.

5. Allegations as to the amount of damages suffered from a negligent injury are an essential part of a petition but such allegations do not constitute a part of the cause of action.

6. Under the facts and circumstances alleged in the petition, the trial court did not commit error in overruling the motion to strike from the petition the claim for damages for loss of use of the wrongfully demolished motor vehicle nor in overruling the demurrer to the petition.

J. Eugene Balloun, Great Bend, argued the cause, and H. Lee Turner and James Berglund, Great Bend, were with him on the briefs for the appellant.

Harold W. McCombs, Russell, argued the cause, and was on the briefs for the appellee.

HATCHER, Commissioner.

This controversy stems from a motor vehicle collision. The appeal is from judgments of the district court overruling a motion to strike from, and a demurrer to, plaintiff's petition.

The limited issues on appeal permit an abbreviated statement of the contents of the petition.

The plaintiff commenced this action to recover the value of a truck which was completely demolished in a motor vehicle collision on a highway. The petition alleged that plaintiff was in the business of selling tombstones and memorial markers in Salina; that he owned and used a 1960 International 2-ton truck which was especially designed for use in his business, and that the defendant negligently drove his automobile in such a way as to cause a collision between the plaintiff's truck and the defendant's automobile.

The allegation of the petition as to damages reads:

'That as a direct and proximate result of the careless, negligent, unlawful, willful and wanton acts of the defendant as aforesaid, this plaintiff sustained damages as follows: that the 2-ton International truck then owned by him was completely demolished to his damage in the amount of $2,925.00; that a monument which was then being transported on said truck was broken to his damage in the amount of $324.00; that plaintiff personally lost 2 days time and expenses by reason of the failure of his truck to arrive at its destination, where plaintiff was awaiting said arrival, to his damage in the amount of $110.00; that plaintiff was required to employ 3 men for 4 hours each to unload his truck after said wreck to his damage in the amount of $36.00 and that he sustained damages in the additional amount of $75.00 by reason of being required to haul said cargo back to Salina and reload the same; that plaintiff and his employees spent 2 days time negotiating for a new truck to plaintiff's damage in the amount of $50.00; that plaintiff was unable to rent a truck properly equipped to handle plaintiff's business and that he was unable to obtain delivery on a new truck properly equipped until the 16th day of October, 1962, to his damage in the amount of $100.00 per day for twenty-one (21) working days or a total of $2,100.00 which said loss included, but was not limited to: loss of business, loss of jobs setting monuments for other firms, expenses incurred in the shipment of monuments and materials by freight which would otherwise have been hauled in plaintiff's truck, being required to work without the services of experienced employees injured in said accident and various other miscellaneous expenses incurred by reason of being required to attempt to operate his said business during said time without the use of said truck and the services of said experienced employees; all to plaintiff's damage in the total amount of $5,620.00.' (The numbers have been inserted by us for convenience in reference.)

The defendant lodged a motion to make definite and certain and a motion to strike against the petition in numerous particulars. The motions were overruled. Defendant then attacked the petition by a general demurrer which was also overruled.

The defendant has appealed, specifying as error the overruling of the motion to strike, the overruling of the demurrer and specifically contending that:

'The court erred in failing to strike from plaintiff's petition that portion of unnumbered paragraph 6 commencing with the words, 'that plaintiff personally * * *' on line 7 of unnumbered paragraph 6 to the end of unnumbered paragraph 6.' (Our numbers in the quoted claim for damages to inclusive.)

The appellant in his brief limits the controversy to a single issue as follows:

'The defendant filed a motion to strike and make more definite and certain. For purposes of this appeal, we urge only the error in overruling paragraph 5 of the Motion. This portion of the Motion requested the District Court strike the claim of damages for loss of use, leaving only a claim for the destruction of the truck and the destruction of the mounment. The Motion was overruled by the District Court.

'The defendant then filed a demurrer to the petition, which was overruled. For purposes of this appeal, we urge that the District Court should have sustained the demurrer as to the claim for damages for loss of use of the truck.'

The only question before us is--where a motor vehicle is completely demolished, is the recovery of damages limited to the reasonable value of the vehicle immediately before its destruction?

The appellant contends that the recovery is so limited. The appellee contends that he not only has a right to recover the value of the vehicle but may also recover for all losses that are the natural and probable result of defendant's wrongful act, which includes the items of damage numbered to in plaintiff's claim for damages as previously quoted.

The appellee calls our attention to the general rule that in all negligence cases the injured party is entitled to recover damages for all injuries which are the natural and probable result of the wrongful or negligent act complained of. Appellee also suggests that there is no reason why there should be a different rule applicable to the negligent destruction of a motor vehicle than that applicable to the destruction of any other type of personal property. We are inclined to agree with the logic of appellee's suggestion. In 8 Am.Jur., 2d, Automobiles and Highway Traffic, § 1041, p. 601, the general rule is stated:

'The basic formula for measuring damages for destruction of or injury to a motor vehicle, as for measuring damages for any other tortious injury, is fair, reasonable, and adequate compensation for the injury inflicted, that is, for the loss sustained by the plaintiff as the proximate result of the wrongful or negligent act complained of; and this is true as to both commercial and pleasure vehicles. * * *'

However, in considering the general rule it must be understood that where the loss of profits or earnings from the use of a motor vehicle is being considered the damage or loss must be capable of computation with reasonable certainty and recovery cannot be based on speculative and problematical los of profits or earnings because of loss of use of the motor vehicle.

Both parties cite the numerous Kansas cases which have touched on the question in support of their contentions. It must be conceded that this court, in considering the particular facts, circumstances and issues in each individual case, has left some speculation as to the exact rule to be applied in measuring damages for the complete destruction of a motor vehicle.

The appellant relies chiefly on the case of Lester v. Doyle, 165 Kan. 354, 194 P.2d 917 and the earlier cases cited in the opinion. The first paragraph of the syllabus reads:

'A proper measure of damages for an injury to a truck which could be repaired so that when repaired it would be...