190 P. 638 | Cal. Ct. App. | 1920
In an action in which the defendant Long Beach Improvement Company was plaintiff and John B. Mutch, the husband of plaintiff in this action, was defendant, the sheriff of the county of Los Angeles levied an attachment upon an automobile as the property of said John B. Mutch. The property was taken on attachment on February *268 19, 1916. Subsequently the plaintiff here claimed to be the owner of the automobile, and made demand upon the defendant Long Beach Improvement Company for its possession. She made no third party affidavit of ownership nor demand upon the sheriff, under section 689 of the Code of Civil Procedure, until October 16, 1916, more than eight months after the levy. On November 26, 1916, this action of claim and delivery was brought to recover possession of the automobile and damages for its detention. During the pendency of the suit the automobile was delivered to the plaintiff, and thereafter judgment was given determining the question of ownership in plaintiff's favor and awarding her damages for the taking and detention in the sum of $1,500.65 against both defendants.
[1] The defendants appeal from the judgment on the judgment-roll and a bill of exceptions. The main contention of appellants is that the evidence does not support the findings and judgment in the admeasurement and award of damages.
The items of damages going to make up the amount of the judgment consist of the sums of $1,297.50, for the rental value of the car from February 19, 1916, the date of the attachment, until October 17, 1917, the date of its redelivery to plaintiff — a period of eighty-six and one-half weeks, at fifteen dollars per week — and $203.15 for loss of tools and appliances belonging to the car, cost of cleaning the car after its recovery, and depreciation of its value during its detention. The undisputed testimony fixes the value of the car at the time it was taken on attachment at $400. Plaintiff gets her car back, with $203.15 for its depreciation during its detention, and with over three times its market value for damages from being deprived of its use for about twenty months.
Appellants interpose various objections to the measure of damages adopted by the trial court. Without discussing them in detail, we think it is sufficient to say that one thus deprived of the use of an automobile cannot recover the gross rental value of a fully equipped and maintained car, free from all expense of maintenance, repairs, and natural wear and tear, such as a rented car would naturally be subject to. It must be apparent at once that there is something wrong with a scale of damages that allows three times as *269
much for the detention of an article from the possession of the owner for a period of two years as could have been recovered if the trespasser had completely smashed it up and destroyed it in the first instance. In this case the automobile was in use by the plaintiff as a pleasure car, and after its taking was not in use during its detention. But neither the fact that the plaintiff was not using the car for business nor the defendants' using it at all would absolve the defendants from compensating the plaintiff for any detriment she actually sustained by its wrongful taking and detention; but it would be against conscience to permit a recovery so out of proportion to the value of the thing involved as appears here. Section
[3] Attention has been called to the fact that no third party claim was made to the sheriff, as provided by section 689 of the Code of Civil Procedure, for more than eight months after the levy of the attachment. This fact would in any event absolve the sheriff from liability for the detention of plaintiff's property for the period prior to the notice of claim. It is expressly declared by section 689 that the sheriff is not liable for damages for the taking or keeping of such property to any such third person unless such *270
claim is made. (Code Civ. Proc., sec. 689; Killey v. Scannell,
Judgment reversed.
Finlayson, P. J., and Thomas, J., concurred.