Carolina Power & Light Company v. Paul , 261 N.C. 710 ( 1964 )

136 S.E.2d 103 (1964) 261 N.C. 710

CAROLINA POWER & LIGHT COMPANY
v.
Robert Maston PAUL.

No. 461.

Supreme Court of North Carolina.

April 29, 1964.

Leath, Blount & Hinson, by Robin L. Hinson, Rockingham, for defendant appellant.

Bynum & Bynum, by Fred W. Bynum, Jr., Rockingham, and J. A. Weeks, Raleigh, for plaintiff appellee.

HIGGINS, Justice.

North Carolina is committed to the general rule that the measure of damages for injury to personal property is the difference between the market value of the damaged property immediately before and immediately after the injury. The purpose of the rule is to pay the owner for his loss. If the damaged article has market value, the application of the before and after rule is relatively simple. Even in that case, however, the cost of repairs is some evidence of the extent of the damage. Simrel v. Meeler, 238 N.C. 668, 78 S.E.2d 766. However, if there is no market, there can be no market value. The foundation for the before and after rule is lacking. Cost of repairs is then about the only available evidence of the extent of the loss. Ordinarily, power systems are not on the market. Less so are small component parts of the system.

The authorities on damage recognize the difficulty of fixing damages for the type of injury here involved. The following appears in McCormick, Damages, p. 166, § 44, 3rd ed.: "The expression ``market value' in this latter instance becomes a vague ideal rather than a reasonably definite standard. The notion that there is a ``market' for such a unique property stretches the metaphor almost to the breaking point."

This Court held in Phillips v. Chesson, 231 N.C. 566, 58 S.E.2d 343: "The courts, always moving toward rules of general application to frequently recurring situations, have evolved many rules which achieve the merit of convenient application and easy provability at the expense of a nearer approach to reality in the particular case. Amongst them is the rule, sometimes called ordinary, that the measure of damages recoverable for injury to property is the difference between the market value immediately before the injury and the market value immediately afterwards. This rule, which can be an approximation to truth in a limited number of cases, is often too remote from the factual pattern of the injury and its compensable items to reflect the fairness and justice which the administration of the law presupposes. For that reason it is applied with caution, and often with modifications designed to relax its rigidity and fit it to the facts of the particular case."

In Waters v. Greenleaf-Johnson Lumber Co., 115 N.C. 648, 649, 20 S.E. 718, 720, the Court said: "He (plaintiff) could recover, for unlawful obstruction of the ditches, the cost of removing the obstruction, and, for destroying fences the cost of replacing them."

The Court of Appeals of Louisiana, in Southwestern Electric Power Co. v. Canal Ins. Co., 121 So. 2d 769, had before it a question similar to that presented here: "The total expenses incurred by plaintiff were actual, direct out-of-pocket expenses incurred by reason of the tortious act. The plaintiff is, in our opinion, entitled to recover its actual loss in wages and material and is entitled to be restored in the same position it was in prior to the accident."

The Supreme Court of New Jersey, in New Jersey Power & Light Co. v. Mabee, 41 N.J. 439, 197 A.2d 194, in a per curiam opinion, passed on substantially the question before us. In answering the argument that damages should be reduced by the amount of difference in the value of the old pole destroyed and the new one replacing it, the Court said: "It seems to us that the true issue is whether the replacement of the pole did more than make plaintiff whole and whether, if it did, it would be just to make the victim of the wrong contribute so much of the cost as would reflect that further benefit. * * * In short, at least upon the record before us, we cannot say with reasonable assurance that the installation of a new pole did more than remedy the wrong done. An injured party should not be required to lay out money, as defendants' approach would require, upon a questionable assumption that one day its worth will be recaptured."

The Third District Appellate Court of Illinois, in Central Illinois Light Co. v. Stenzel, 44 Ill.App.2d 388, 195 N.E.2d 207, held: "Where property had been damaged and can be repaired, true measure of damages is reasonable cost of repairs, providing that such is less than value of property before damage." The purpose of the proviso is to prevent the owner of property from profiting by the injury.

As authority for its claim of credit for the difference in value between the new pole and the old one, the defendant cites a memorandum opinion by New York Supreme Court, Appellate Division, Fourth Department, in the case of Niagara-Mohawk Power Corp. v. Smith, 11 A.D.2d 905, 202 N.Y.S.2d 794. The memorandum does not appear to support the defendant's position; but if it does, the other cases appear to be based on sounder reasoning.

The cost of repairs furnishes the more satisfactory test by which to determine the plaintiff's damages; however, the defendant was properly given credit for the salvage value of the replaced parts. The record fails to show the repairs perceptibly increased the value of the plaintiff's property.

In this case a rule more satisfactory than that applied by Judge McConnell does not occur to us. The judgment of the Superior Court is

Affirmed.