105 Misc. 595 | N.Y. App. Term. | 1919
The plaintiff has had a recovery for the negligence of the defendant, resulting in an injuiy to plaintiff’s taxicab. We think there was sufficient'.evidence of negligence, and as there was no claim of contributory negligence, it remains merely to consider the appellant’s contention that an item of the damage award was incorrectly allowed. The questioned iterij was included in the award as representing the loss'; sustained by the plaintiff while the car was undergoing repairs, and was thus of necessity out of use.
The plaintiff conducted a taxicab business, and had
The respondent cites only one case, Donnelly v. Poliakoff, 79 Misc. Rep. 250, in which this court disallowed ‘‘ a sum allowed for deprivation of the use of the automobile during the time required for these repairs ” (it not being disclosed by the opinion how the sum in question was proved), and then stated that as no vehicle was hired in place of the damaged car the plaintiff was under the necessity of proving ‘ ‘ damages * * * based upon an estimate of loss to his business,” and that it was shown that he had suffered no such loss. We are unable to acquiesce in the view apparently adopted in that case, as we think it is a departure from the general rule of wide application that ordinarily prevents the recovery of uncertain and speculative gains. Griffin v. Colver, 16 N. Y. 489.
The practice has obtained in these damaged vehicle cases of allowing the cost of the actual hire of another vehicle similar to that damaged; and this custom has prevailed, we think, largely because that measure of damage is rarely objected to. We think the correct rule would be to allow the rental value of the car, irrespective of whether another car had actually been
To both contract and tort cases there is equal applicability of the doctrine of general damage that is designed to compensate the aggrieved party by placing him in the same money situation that he would have occupied had he had no cause for complaint, in so far as that may be possible without resort to speculation. What the owner of a damaged car loses by being deprived of its use is what such a car can be rented for. What he pays for the hire of a car to take its place is probably, as a general thing, about what he could have obtained by letting his own car out before it was damaged, although proof of his actual hiring is
With the observation in the Donnelly case to the effect that the owner of the damaged vehicle could not recover in any form for deprivation of use except upon a showing.that his vehicle was needed at the time for use in his business, we have no present concern except to say that in so far as the reasoning underlying such a doctrine may be deemed to conflict with the views we feel compelled to express for the purpose of the decision in this case, we are not prepared to adopt it.
It seems to us that to fix the loss due to deprivation of use by an allowance of rental value would, in the vast majority of cases such as this, work complete justice. As Judge Selden said in the Griffin Case, supra (p. 497): “ Rents are graduated according to the value of the property and to an average of profits arrived at by very extended observation; and so accurate are the results of experience in this respect that
We do not feel called upon to express, at this time, any opinion upon the subject of the rule of damage that is to be applied where it is shown that there is no hiring demand, as we think it probable that such a vehicle as we are here dealing with is at all times sufficiently in demand for hire in this city to make it possible to present the needed proof of rental value. Our references to hiring are, of course, to contracts for hire for definite periods, as by the day or the week or the month. The “ trips ” of the vessel in the Blanchard Case, supra, obviously are dissimilar to the occasional and casual use of a taxicab by one who hires it to ride in it, and not to operate it for gain. For the reasons stated there must be a new trial.
Gut and Weeks, JJ., concur.
Judgment reversed, and new trial ordered, with thirty dollars costs to appellant to abide event.