Appellant [DTS] alleges Appellee [Van-derveen] was responsible for a truck-car accident in Osage County in which its spеcially equipped truck and trailer were totally destroyed. DTS sued, alleging that $31,-000 is the amount it lost in profits during the 79 days it took to order and receive a new truck and trailer. It alleges no rental truck/trailer was available.
Vanderveen’s motion for summary judgment was granted on the strength of our opinion in
Marland Refining Co. v. Duffy,
Marland
also involved a car/truck accident. This Court set out the rule for damages in case where the damaged vehicle is repairable: “The measure of damages for injury to personal property that can be
*1346
repaired is the cost of repair and the value of its use necessarily lost pending repair,” citing an earlier case,
Weleetka Light & Water Co. v. Northrop,
We also stated withоut comment a similar passage from a treatise, “Berry On Automobiles” (2nd Ed.) § 547:
“When an automobile has been damaged by the negligence of another and can be repaired, the proper measure of damages is the cost of the repairs and the vаlue of the loss of the use of it while it is being repaired. If it cannot be repaired then the measure of damages is the difference between the market value of the automobile before it was damaged and the value of the wreckage." [emphasis added].
We arе now asked to overturn or at least allow exceptions to the emphasized phrase from the treatise.
At the outset we observe that
Marland
was decidеd on damages to a repairable vehicle. We also observe that the passage from the Berry treatise was added to the opinion without comment; we neither approved it nor disapproved it. However, we did use the rule in subsequent cases, which assumed we adopted it in
Marland. See, Coe v. Esau,
The statutory measure of damages in the instant circumstance is set out at
“For the breach of аn obligation not arising from contract, the measure of damages except where otherwise expressly provided by this chapter, is the amount which will compensate for all detriment proximately caused thereby, whether it could have been anticipated or not.” [emphasis added].
Neither Marland nor Weleetka involved damaged commercial vehicles, with special equipment that would make them difficult to replace immediately.
DTS argues that due to the precarious foundation of authority upon which Mar-land is based, and the advancement in the use and design of vehicles, especially commercial vehicles, we should look at the “mоdern” view of damages to irreparable vehicles, by re-examining Marland. We agree.
One of this Court’s first pronouncements on “all damage”
Choctaw, O. & G.R. Co. v. Alexander,
“We do not think any principle of construction can be applied which shall modify the liability imposed for ‘all’ damages by limiting to ‘some’ damages which shall be caused by the setting of prairie on fire. In order to make the statute, mean this, the Court would have to interject that limitation into the statute, so as to make the statute say, ‘some damages’ .... The question is plаin and simple, and it must be determined by direct observation of the terms of the statute itself.”
DTS argues that “all damage” in the Choctaw case can be read as synonymous to “all detriment” of our present-day damage statute, quoted above.
Several states have adopted the so-called “mоdern view” which makes no distinction in the recovery of lost profits-lost use between repairable and irreparable situations.
California’s Supreme Court adopted the modern view in
Reynolds v. Bank of America National Trust & Savings Assoc.,
“There appears to be no logical or practical reason why a distinction should be drawn between cases in whiсh the property is totally destroyed and those in which it has been injured but is repairable, and we have concluded that when the owner of a negligently destroyed commercial vehicle has suffered injury by being deprived of the use of the vehicle during the period required for replacement, he is entitled, upon proper pleading and proof, to recover the loss of use in оrder to ‘compensate for all the detriment proximately caused’ by the wrongful destruction.”
*1347 We note that California’s statute on damages, quoted in Reynolds, is identical to our damage statute, 23 O.S.1981, § 61.
Agreement is found in the Restatement оf Torts, [Second] § 927, referring to damages for destruction of “any thing”. Damages would include the “value of the subject matter: and “compensation for the loss of use not otherwise compensated.”
The Wisconsin Supreme Court encountered a similar fact situation in
Nashban Barrell & Container Co., Inc. v. G. G. Parsons Trucking Co.,
“The standard to be applied to such recovery is that of reasonableness under all the circumstances of the particular case. Therefore, damages should be allowed for loss of usе (1) during a time period reasonably required for replacement, including a reasonable time to determine whether the vehicle is in fact rеpairable, and (2) in an amount equal to that which was actually expended (absent a showing that a temporary replacement was unavailable), provided such amount is not unreasonable.”
And, finally, the Third Circuit Court of Appeals said:
“Consequently, this Court fails to see any logical or praсtical reason for a distinction between repairable and unrepairable damage to a commercial vehicle which would justify loss of use for the former and not for the latter even though the owner suffers loss because he cannot immediately replace the vehicle. In both instances the owner has lost the same thing, the use of his vehicle, and he should be able to recover this loss of use in either case.”
Dennis v. Ford Motor Company,
We hold that loss of use should be included in damages recoverable when a commercial vehicle is destroyed, subject to a condition of “reasonableness”, as that term is commonly understood.
REVERSED AND REMANDED.
KAUGER, Justice, concurring generally and specially:
Although I concur in the majority’s opinion, I would not confine the holding to specially equipped commercial vehicles.
I am authorized to state that Justice ALMA WILSON concurs in the views herein expressed.