177 S.W.2d 4 | Ark. | 1944
This appeal results from a traffic mishap in the city of Mena, Arkansas.
A car owned and driven by appellant, Mrs. Grace Kane, collided with a truck owned by appellee, Carper-Dover Mercantile Company, and then driven by Elmer Dover, an officer of the appellee corporation. Both vehicles were damaged. Appellee sued Mrs. Kane for (1) $200 for damages to the truck, and (2) $50 for loss of use of the truck while it was being repaired, and (3) $300 for loss of profits that appellee alleged it would have made if the truck had not been out of use awaiting repairs. The third allegation of damages (loss of profits) was stricken from the complaint on the defendant's demurrer; but the court overruled the demurrer as to the second allegation of damages (loss of use). *676
Mrs. Kane by answer denied all liability, pleaded contributory negligence, and also alleged a defect of parties plaintiff. She also cross-complained for $113 for damages to her car and for $1,000 for her personal injuries. Elmer Dover, the driver of the truck, filed a separate action against Mrs. Kane for his personal injuries; and the Elmer Dover case was consolidated with the present cause in the lower court. A trial to a jury resulted in a verdict for Carper-Dover Mercantile company against Mrs. Kane for $225, and for Mrs. Kane in the Elmer-Dover personal injury case. Mrs. Kane has appealed from the judgment of $225 against her: and these questions are urged in the brief: 1. The alleged defect of parties; 2. Plaintiff's instruction, No. 1; 3. Damages for loss of use of the truck during the period of repair. We dispose of these questions in the order named.
I. Defect of Parties.
In her answer defendant (appellant) claimed that the plaintiff had been fully compensated for all damage by some unnamed insurance company, which carried the property damage on the plaintiff's truck, and that plaintiff had executed a subrogation to said insurance company; and defendant claimed said insurance company was the real party in interest and should be joined as party plaintiff. There was thus raised the issue of defect of parties. When Elmer Dover was testifying for the Carper-Dover Mercantile Company the following occurred (by Mr. Quillin on cross-examination): "Q. Mr. Dover, you have already collected for the damage to your car A. No, sir. Pipkin: Object. Court: Sustained. To the ruling of the court the defendant at the time objects and excepts and asks that her exceptions be noted of record, which is accordingly done. Quillin: We offer to prove — to attempt to establish the allegation in the complaint that Carper-Dover is not the proper plaintiff for recovery or damage."
We have copied above the only offer of proof in the entire record; and appellant urges that because of this *677
offer of proof we should reverse and remand the case for a new trial. If there had been a definite offer to prove certain facts by witnesses, then a real question would be presented here; but the above quoted language is far too indefinite and uncertain to constitute an "offer to prove" as that expression is used in the cases and books. In Crawford County Bank v. Baker,
II. Plaintiff's Instruction No. 1.
Defendant offered several objections to this instruction when it was given, but in the brief here the appellant offers only one objection and therefore all other objections are waived. Great Southern Mutual Life Insurance Company v. Smith, 177 Ark. 1194,
The one objection argued by appellant to the plaintiff's instruction No. 1 is that the instruction ignores the defense of the contributory negligence, and concludes by telling the jury to return verdict for the plaintiff. In other words, appellant invokes the rule announced in Temple Cotton Oil Co. v. Skinner,
III. Damages for Loss of Use.
The trial court allowed the jury to consider loss of use of the truck during the period of repair as an element of damages, and appellant assigns as error this action of the court. The case of Kansas City Ry. Co. v. Biggs,
The evidence of damage to the plaintiff's truck in the case at bar is peculiar in that no witness was asked, or testified, concerning the fair market value of the truck before and after the collision. Instead, the proof was confined entirely to what the plaintiff paid for labor and parts and repairs; and the admitted total of these items was $187.19. That was the only estimate of damages shown. For all that appears in this record the truck was in as good a condition after the repairs as before the collision, so we must conclude from this record that the damages to the truck amounted to $187.19. *680
To supplement this figure appellee attempted to claim damages for loss of use. The jury verdict was for a total of $225. Since the $187.19 was the property damage, it is clear that the difference between the last mentioned figure and the amount of the verdict was for loss of use, in the amount of $37.81. In some jurisdictions, loss of use of an automobile pending repair is a recognized item of damages. Annotations on this point may be found in 4 A.L.R. 1350, 32 A.L.R. 706, 32 A.L.R. 711, 78 A.L.R. 910, and 78 A.L.R. 917. But regardless of the holding of other courts we have held that loss of use of an automobile pending repair is not an element of damages. In Madison-Smith Cadillac Company v. Wallace,
So we reduce the judgment from $225 to $187.19 for the reasons herein stated; and as so modified the judgment is affirmed.