250 P. 774 | Okla. | 1925
Parties will be referred to as they appeared in the trial court, inverse to their order here. Qualls had judgment against the railroad company for $500 for damages to his automobile, incurred at the railroad crossing and based on *50 the negligence of defendant. Plaintiff alleged that the accident "almost completely demolished it." He did not in fact repair this car, but introduced evidence tending to show what the cost of new parts would be and the cost of labor for such repairs, and also the usable value pending the repair. The witness, by whom plaintiff proved the cost of such repairs, is the one to whom plaintiff sold the car, without being repaired. The witness testified:
"He tried to get me to fix the car, and then after it cost this price, he sold me the car. Q. And you dissembled it? A. I tore it down, yes, sir."
It thus appears that this car was salvaged or sold for salvage by plaintiff, the selling price not being disclosed by the record. The court instructed the jury, in substance, that the measure of plaintiff's damages was the cost of the parts and the labor for repairing the car and the loss of the use thereof pending such repair, if the car was susceptible of repair. Defendant objected to said evidence and instruction, and otherwise saved the record, on the ground that such measure of damage was erroneous, contending that if plaintiff was entitled to recover, his measure was the difference between the value of the car — a Haynes, three or four years old — just prior to and immediately after such accident.
1. Section 5996, C. O. S. 1921, provides:
"For the breach of an obligation not arising from contract, the measure of damages * * * is the amount which will compensate for all detriment proximately caused thereby."
In no event, under said statute, is the plaintiff entitled to more than compensation for the detriment. In order to apply the principle of compensation under said statute to varying states of fact, the courts have devised different measures of damage. The measure of damage for the total loss or destruction of personal property is, as a general rule, its reasonable value at the time of the loss. Mitchell v. Wadsworth.
2. There is another measure of damages recognized by this court applicable to those injuries where the property is neither totally destroyed nor capable of being repaired — cases where the property, after injury, has a salvage value. In C., R.I. P. R. R. Co. v. Quigley,
"Ordinarily, the measure of damages for the destruction of a building by fire arising from negligence, is the actual cash value of the building at the time of the loss, but, if such destruction be not total, or if there be salvage recovered from the building greater in value than the cost of removing and saving it, the value of such salvage must be deducted from the entire cash value of the building in ascertaining the damages for which the tort-feasor is liable."
As stated in 6 Thomp. on Neg. 294, sec. 242, quoting with approval from a Maine case:
"If the article is only partially destroyed and the plaintiff retains it, the amount which he is entitled to recover is the difference between the value of the article before it was injured and its value in its injured condition. To this amount may be added a sum equal to interest from the time of the injury to the time of rendering the verdict."
In 17 C. J. 877, this general rule is stated:
"The measure of damages for injury to personal property which has not been entirely destroyed, is the difference between its value at the place immediately before and immediately after the injury."
Many authorities are cited thereto. Plaintiff's allegation that his car was almost completely demolished, and the fact that plaintiff, on learning the cost of repairs, refused to repair same, but sold it for salvage, shows that plaintiff did not bring himself within the rule of the Weleetka Light Power Company Case, supra. To rebuild a car, almost completely demolished, of new parts, would, perhaps, cost more than the reasonable *51 market value of the car prior to injury.
3. In Ft. Worth R. G. Ry. Co. v. Coker (Tex. Civ. App.)
4, 5. Accordingly, we hold in the case at bar that the verdict for $500 is not sustained by the evidence. To make out a prima facie case, plaintiff should bring himself, by his allegation and proof, within the recognized measure of damage that is applicable to the facts. We do not base the holding that the Weleetka Light Power Company Case is not applicable on the contention of defendant that plaintiff did not repair, but sold his car. Such contention of defendant means that, if plaintiff's automobile had been totally destroyed, he could not maintain an action for damages therefor unless he had first bought a new machine. In such action, it is not a condition precedent to recovery for items of damage for repairs, that plaintiff should actually have expended the sums in replacing or repairing the damaged parts. The rule in cases of personal injury, that services rendered by physicians in attending the injured one cannot be recovered for unless the bills have been paid or a liability incurred therefor, is not applicable in an action to recover damages to personal property. In the one case, the damages are special and can only arise out of the fact that the expense has been paid or incurred and constitutes a liability against the plaintiff, whereas in the other, the action is for general damages. Kincaid v. Dunn et al. (Cal. App.)
It is unnecessary to consider other alleged errors. Let the judgment be reversed, and the cause remanded for new trial in accordance with the views herein expressed.
By the Court: It is so ordered.