Jessup v. Platt , 135 N.Y.S. 635 ( 1912 )

Lehman, J. (dissenting).

The defendant received a golf club from the plaintiff for transportation to Hew York. Through defendant’s negligence the delivery of the golf club was unreasonably delayed. The trial justice found these facts in plaintiff’s favor and awarded him one cent damages. Though, like the trial justice, I am not learned in golf, my acquaintance with golf players leaves no doubt in my mind but that the failure to deliver to the plaintiff a golf club to which he was attached substantially deprived him of the enjoyment of his vacation. It is, therefore, in no spirit of levity but rather in a spirit of sympathy that I have reached the conclusion that, while the award of one cent damages can in no degree compensate him for his loss of pleasure, it is not in any legal sense inadequate. The law gives to the plaintiff no balm for his outraged feelings but merely attempts to reimburse him for the value of the use of the club during the time when he was wrongfully deprived of its use. The rental value during the interim would ordinarily furnish a full and sufficient compensation, but I am informed by my associates learned in golf as in all other things that when a golfer has found a club peculiarly adapted to his own physique and style the value of the use of that club cannot be estimated by its rental value to some other person, for no real golfer could be content with golf clubs picked out at random.

It would rather appear that such clubs have no rental value, and that if the plaintiff is limited to the recovery of the rental value then the trial justice correctly awarded merely nominal damages. ■ It is true that the rental value is ordinarily adopted as the measure of damages merely because it does ordinarily furnish an adequate compensation for deprivation of use, but where the article is of a peculiar nature so that no substitute can be rented, and the deprivation of its use causes peculiar injury to the owner, he is entitled in a case where notice of its peculiar character and use was given to show its actual value to him. The plaintiff is entitled to the benefit of this rule, but on analysis .of the injury suffered by the 'plaintiff and of the value of the club to him I find only injury to his feelings and value only" as adding to his-enjoyment, and these are elements of which our law, the creature of a materialistic age and race, takes no account. The plaintiff points as authority for his contentions to the case of Mitchell v. Weir, 19 Misc. Rep. 530, affd., 19 App. Div. 183. It is true that that case illustrates the tendency of the modern courts to recognize that loss of pleasure may be of real importance, but even in that case the court did not consider the loss of enjoyment as an element of damage but only held that a conversion may be shown hy a deprivation of the enjoyment of an article intended for pleasure as well as by deprivation of the enjoyment of an article intended for other use. If therefore we abandon the rental value as a measure of damages, I do not find proof of any other value of the. use of the club.

The plaintiff also claims that he is entitled at least to reimbursement for a trip to Pew York in an effort to purchase a substitute club. I can find nothing in the case that would justify us in holding that these damages directly flow from the defendant’s negligence or that they could have been within the contemplation of the parties when the club was delivered.

The plaintiff further claims that'he is entitled to recover the cost of the substitute club but its cost is obviously not the measure of his damages.

I agree entirely with the views of my associates as to the rule of damages applicable to this case. I cannot however find in the record any evidence which would justify the trial judge in granting substantial damages under this rule. In my opinion, therefore, the judgment should be affirmed.-

Judgment reversed and new trial ordered.