Cook v. Packard Motor Car Co.

The first count of the complaint alleged that on July 25th, 1912, the defendant sold and delivered to the plaintiff an automobile, for which the plaintiff paid $5,096; that it was kept at the defendant's garage; that on August 31st, 1912, it was injured through the defendant's negligence; that the plaintiff was thereby deprived of its use and enjoyment from August 31st to October 1st, 1912, and that the use and enjoyment of the car was reasonably worth $10 a day. A second count alleged that before the 31st of August, 1912, the plaintiff had employed one Herman as chauffeur to drive and operate the car, under a contract of employment obligating the plaintiff to pay him $18 a week until October 1st, 1912; that the plaintiff was compelled to pay and did pay Herman $67.50 during the month of September, being his agreed wages, less $12, which was all that Herman was able to earn from other employment, and that the $67.50 had been demanded of and refused by the defendant.

The first paragraph of the complaint, alleging the sale and delivery of the car, was expunged on motion, and the defendant then answered denying all the allegations of the complaint, except the demand and refusal to pay $67.50.

The judgment-file recites that the cause was tried to the jury; that at the close of the plaintiff's evidence the court, on defendant's motion, directed a verdict for nominal damages only, and that the jury returned a verdict for the plaintiff to recover $1.

The assignments of error relate to the allowance of the motion to expunge, to the exclusion of testimony as stated in the finding, to the direction of a verdict for nominal damages, and to the charge of the court that nominal damages should not exceed one dollar. The evidence and the charge of the court is certified, but there is no assignment of error directed to a correction of the finding, nor is the charge of the court made part of the finding. It follows that the assignments of error for wrongful direction of verdict, and for error in the charge of the court, are not properly presented.

Taking up, first, the assignment of error for allowance of the motion to expunge. The allowance of this motion was erroneous, because it was based solely on the ground of immateriality and irrelevancy. Motions to expunge on these grounds have a very limited scope.Bitello v. Lipson, 80 Conn. 497, 503, 69 A. 21; Donovan v. Davis, 85 Conn. 394, 398, 82 A. 1025. The sale and delivery of the car, the date of the transaction, and the price paid, were not entirely irrelevant or immaterial, in point of logical connection, to the plaintiff's case. But the facts alleged were evidential rather than issuable facts, and the motion might properly have been made and granted on that ground. Moreover, testimony on the point was offered and received, and so the error was quite harmless.

It was conceded at the trial that the defendant had already repaired the injured car at its own expense, and the main issue under the first count of the complaint was whether the plaintiff was entitled to recover for the loss of the use and possession of the car while it was being repaired at the defendant's cost.

In Brown v. Southbury, 53 Conn. 212, 1 A. 819, we held that the loss of the use of a horse injured by a defect in the highway, was a direct and natural consequence of the injury, and was a proper element of damage to be allowed in addition to the depreciation in the market value of the horse. The same rule was recognized, though not applied, in Fritts v. New York N.E. R. Co., 62 Conn. 503, 26 A. 347; and is generally received in other jurisdictions. Wheeler Harding v.Townshend, 42 Vt. 15; Shelbyville L. B.R. Co. v. Lewark,4 Ind. 471, 473; Streett v. Laumier, 34 Mo. 469; Johnson v. Holyoke, 105 Mass. 80; Mizner v. Frazier, 40 Mich. 592,595; Latham v. Cleveland, C., C. St. L. Ry. Co.,164 Ill. App. 559, 563; Crossen v. Chicago J. E. Ry.Co., 158 Ill. App. 42, 44; The Atlas, 93 U.S. (3 Otto) 302; Williamson v. Barrett, 54 U.S. (13 How.) 101; 1 Sedgwick on Damages (9th Ed.) § 195; 6 Thompson on Negligence, § 7242.

On this appeal the question arises on an exception to the exclusion of evidence of the rental value of the plaintiff's car, on the ground that the plaintiff used and intended to use his car for pleasure only, and not for rent or profit. Stated more generally, the question is whether the right to recover substantial damages for being deprived of the use and possession of a chattel, as the result of a tortious injury to the chattel itself, depends on the character of the use which the owner intended to make of it, during the period of the detention. We fail to see why the character of the intended use should determine the right to a recovery, although it will, of course, affect the amount of recoverable damages. It is clear, for example, that the 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. It also includes a substantial allowance for the overhead expenses and the profits of carrying on the business of renting motor-cars; and the plaintiff was not engaged in that business. Neither is the plaintiff entitled to the rental value of his car less deductions for these items, for, even if he had been engaged in the business of renting motor-cars, it would not follow, without evidence to that effect, that the car would probably have been rented every day, or for any given number of days.

On the other hand, it is equally clear that such considerations as these affect only the amount of compensatory damages which ought to be awarded in this case, and do not touch the underlying question whether the plaintiff is entitled to compensatory damages so far as they can be ascertained. We think there can be no doubt on this point. An automobile owner who expects to use his car for pleasure only, has the same legal right to its continued use and possession as an owner who expects to rent his car for profit; and the legal basis for a substantial recovery, in case of a deprivation of the use of the car, is the same in one case as in the other. Such an invasion of property right calls for an award of substantial, as distinguished from nominal, damages, and the only difficulty in applying the rule of compensatory damages to cases of this character is the very practical difficulty of estimating the actual damages in money. But the law does not deny substantial damages to one who has suffered a substantial injury, solely on the ground that the injury has not produced, or will not produce, a pecuniary loss. For example, no one would contend that only those plaintiffs whose incomes depended on their earning capacity could recover substantial damages for injuries to person or character. So in this case, the fact that the plaintiff has suffered no pecuniary loss ought not to prevent a recovery proportionate to the actual extent of his injury. It may be admitted that this record does not disclose the extent of the plaintiff's injury sufficiently to warrant any recovery at all; but it does appear that the issues framed by the pleadings were found in the plaintiff's favor. And it may fairly be assumed that except for the ruling of the court, which cut off all proof of damages other than pecuniary loss, the jury would have been informed as to what use the plaintiff was accustomed to make of his car, how far and for what purposes he was dependent on it, and of such other facts as would have assisted them in forming a just conception of the actual extent of the injury naturally and necessarily inflicted on this plaintiff in consequence of the loss of use of this car. When so informed, the jury would have had no greater difficulty in estimating compensatory damages, under the first count of the complaint in this case, than in estimating compensatory damages for pain and suffering, or for an injury to character when no special damages are pleaded.

Manifestly, no general rule for this class of cases can be laid down, except that the jury should award fair and reasonable compensation according to the circumstances of each case. If the actual injury is trifling, the damages will be small; but in any event they are in the nature of substantial, and not nominal, damages. We conclude that evidence of the rental value of the plaintiff's car was admissible under the first count, not as furnishing a measure of damages, but as one of the facts proper to be considered in ascertaining the extent of the injury.

In reaching this conclusion we have not disregarded the fact that there is some apparent conflict of authority upon the allowance of damages for the mere detention of articles not used, or intended to be used, for profit. The Supreme Court of the United States has held, in the case of a yacht (The Conqueror, 166 U.S. 110, 17 Sup. Ct. Rep. 510), that demurrage for the wrongful detention of a vessel will only be allowed when profits have actually been lost, or may reasonably be supposed to have been lost, and the amount of such profits is proven with reasonable certainty; and the opinion cites several cases in admiralty in which this rule has been laid down. It should, however, be added that the concrete objection in that case was to the allowance of the total rental value of the yacht, without any proof that the owner would or could have rented it; and, also, that the opinion, on page 134, distinctly intimates that some allowance might have been made for the detention, if there had been sufficient evidence that the owner desired to use the vessel during the period of the detention. In New York the Appellate Division has used expressions which may be interpreted as favoring the doctrine that no damages are recoverable for the loss of the use of an article of luxury. In these cases also (with one exception) the objection was to the allowance of total rental value. Foley v.Forty-Second Street Ry. Co., 52 Misc. 183,101 N.Y.S. 780; Bondy v. New York City Ry. Co., 56 Misc. Rep. 602, 107 N.Y.S. 31; Donnelly v. Poliakoff,79 Misc. 250, 139 N.Y.S. 999. In England the question has been settled by two recent decisions in the House of Lords. In The Greta Holme, L. R. (1897) App. Cas. 597, it was held that the trustees of the Mersey Docks and Harbor Board were entitled to recover damages for the loss of the use of a dredger, injured by a negligent colliding vessel, although not out of pocket in any definite sum. In The Mediana, L. R. (1900) App. Cas. 113, the same board was held entitled to substantial damages for the loss of the services of a damaged lightship during the time that its place was taken by a substituted lightship continuously maintained by the board at its expense for such emergencies. It was argued that the board paid nothing for the hire of the substitute, and that they were really better off than if there had been no accident, because relieved from the cost of maintaining two lightships during the time when the injured vessel was under repair. But Lord Halsbury pointed out the distinction between the attempt to establish a specific loss of profit on the one hand, and a claim for general damages for the unlawful detention of property on the other; saying that an alleged loss of profit must be proved, and by precise evidence, but that when only general damages are asked for no such principle applies, and that in such case the jury may give whatever they think would be a proper equivalent for the unlawful detention of the thing in question. The Massachusetts court, in Hunt Co. v.Boston Elevated Ry. Co., 199 Mass. 220, 236,85 N.E. 446, although the subject-matter of that suit was not an article of luxury, has adopted with approval the reasoning of the judges in The Mediana, L. R. (1900) App. Cas. 113. See also 1 Sedgwick on Damages (9th Ed.) § 243b.

Error is also assigned in the exclusion by the court of evidence of the amount which the plaintiff paid to his chauffeur during the period he was deprived of the use of his car while it was being repaired. It was excluded upon the ground that the damage was too remote. On the record before us it appears that the payments were obligatory, that the detention of the car was wrongful, and that the plaintiff had no use or employment for the chauffeur while the car was being repaired. In effect the ruling of the court was that the plaintiff was not entitled, in an action for the detention of an automobile, to plead and prove as special damage that he was under contract to pay his chauffeur for the period of the detention, that he did pay him, and that the expense was rendered fruitless by the defendant's tort.

We think this ruling was erroneous. The testimony, if admitted, would doubtless have been followed up by evidence that it was customary to employ chauffeurs for stated periods to drive and operate cars such as the plaintiff's, and that the loss of the chauffeur's services was a natural consequence of the detention of the car. In that event the objection of remoteness would have been untenable. It does not follow that the plaintiff would be entitled to recover the agreed wages of his chauffeur, no matter what they were. But he is entitled to recover, upon proper allegations, any reasonable obligatory expenses which have been rendered fruitless as a natural consequence of the defendant's detention of his automobile. Evidence as to the fact and amount of such expenses is admissible in that connection.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion PRENTICE, C. J., and RORABACK, J., concurred.