Pugh v. Queal Lumber Co.

• Decision Date: 09 May 1922
• Docket Number: No. 34615.,34615.
• Citation: 188 N.W. 1,193 Iowa 924
• Parties: PUGH v. QUEAL LUMBER CO.
• Court: Iowa Supreme Court

193 Iowa 924

188 N.W. 1

PUGH

v.QUEAL LUMBER CO.

No. 34615.

Supreme Court of Iowa.

May 9, 1922.

Appeal from Municipal Court of Des Moines; T. L. Sellers, Judge.

Action to recover damages for injury sustained by appellee in a collision of appellee's automobile and a truck owned by appellant. Trial to a jury resulting in a verdict in favor of plaintiff. Judgment was entered on the verdict, from which defendant appeals. Affirmed on condition.B. O. Montgomery, of Des Moines, for appellant.

A. D. Pugh and C. S. Cooter, both of Des Moines, for appellee.

ARTHUR, J.

For consideration of the errors assigned and relied upon for reversal it is necessary only to make a skeleton statement.

Plaintiff alleged that his wife, Harriet Pugh, was driving his Chalmers car west on Grand avenue in the city of Des Moines, in the exercise of due care, and, while at the Twenty-Eighth street intersection, appellant's truck going north on Twenty-Eighth street struck the front end of appellee's car, damaging the car to the extent of $630; that the collision and consequent injury to appellee's car was caused by the negligence of appellant's employee in operating its truck. Appellee alleged that he expended $140 for repairs on his car after it was injured, and further alleged that to restore the car to its condition immediately before the accident would cost $450 in addition to the amount already expended for repairs.

Appellant denied negligence and liability for the injury to appellee's car.

The case was submitted to a jury and a verdict returned in favor of the plaintiff in the sum of $433.87. Motion for a new trial was overruled and judgment entered on the verdict against the defendant, from which this appeal is prosecuted.

Three errors are assigned and relied upon for reversal.

[1] I. In assignment of error No. 1 appellant complains of the statements of plaintiff's cause of action by the court in the instructions. Plaintiff alleged that he expended $140 in necessary repairs to his car to make it at all usable, and that--

“To buy and put in said car new fenders, radiator, and to repair frame, damage to crank shaft, transmission and driving mechanism, and other damages caused by said collision, and restore said car to its condition immediately before said collision, will cost at reasonable prices and values $450, in addition to the repairs already made on said car.”

In stating the case to the jury the court used this language:

“That he had to buy and put in said car” the parts above mentioned “to restore said car to its condition immediately before said collision at the reasonable price of $365.”

Immediately following such statement, the court covered the same matter in another way, following the statement in the petition:

“That the reasonable value of the repairs of said car would be necessary to restore it to its condition immediately before said collision included in said repair parts, labor and merchandise, is $450, in addition to the repairs already made on said car.”

[2] Appellant's attack on the court's statement is that the court told the jury that the plaintiff had expended for repairs $140, and also $365, when it appears without dispute that the amount actually expended for repairs was $140 only. While the court was rather unfortunate in using the language “he had to buy and put in said car,” etc., instead of saying, as the petition does, “that to buy and put in said car,” etc., we think the jury was not misled, and must have understood the true state of the record. From the wording of the instruction preceding the clause complained of, it is clear that the court was not telling the jury what the facts were, but was stating to the jury what was claimed by the plaintiff to be the facts; that is, the statements did not purport to state what plaintiff had proven, but only what he claimed. The proof on this point was so perfectly clear that we think the jury could not have been misled. The proof showed that plaintiff had only expended $140 at the time, and that it would be necessary to expend for parts about $298, plus about $150 for labor in putting them in. These three items aggregate approximately $588. In addition to these items, the plaintiff offered testimony to prove that he had been deprived of the use of his car, while repairs were being made, five days, and that he would be out of the use of it seven days while new parts necesessary to restore it were being put in, and that the use of the car was worth $5 per day, and that he had spent two days of his own time looking after its repair and that his time was worth $12.50 per day, making $60 for loss of use of the car, and $25 for his own time, which, added to the above item, makes $673, and, deducting $15 for parts included in repairs, leaves $658 damages, which plaintiff offered testimony to prove, and this evidence was undisputed by the defendant. The plaintiff had only claimed $630 in his pleadings. The verdict was for $433.87. It is quite evident that the jury did not consider any extra item of $365. We think there is not reversible error in the instruction.

II. In assignment No. 2 appellant finds fault with the instruction on the measure of damages, in part. The court told the jury to measure the damages by the difference between the value of the automobile immediately preceding the accident and the value of said automobile just after the accident. No fault is found with the instruction thus far. The court further authorized the jury to allow plaintiff for the reasonable value of his own time spent in the care of the automobile caused by the accident, and also the reasonable value of the use of the automobile during the time he was deprived of its use while being repaired with ordinary diligence. Appellant's only criticism of the instruction is as to the value of the loss of the use of the car while it was being repaired. Appellant's position is that,...