Roberts v. Pilot Freight Carriers, Inc.

160 S.E.2d 712 (1968)

273 N.C. 600

Carlton C. ROBERTS v. PILOT FREIGHT CARRIERS, INC.

No. 530.

Supreme Court of North Carolina.

May 1, 1968.

*716 Boyce, Lake & Burns, Raleigh, for plaintiff appellee.

Teague, Johnson, Patterson, Dilthey & Clay, Raleigh, for defendant appellant.

SHARP, Justice.

Plaintiff's evidence, viewed in the light most favorable to him, was sufficient to substantiate his allegations that defendant's violation of G.S. § 20-154(a) and (b) was the proximate cause of the collision which damaged his dump truck. The evidence would permit the jury to find facts as follows: Proper care would have required Bost, who was familiar with the road and the location of his destination, to remain behind the dump truck instead of passing it so near the drive into which he intended to turn. Notwithstanding, he passed the dump truck and, after signaling his intention to do so, returned to the right lane in front of the truck. Then, with the right-turn signal still blinkingor, after having turned it off and straightway turned it on again, he immediately made a right turn into the M. & S. Co.'s drive directly in front of the dump truck. Bost should have known (1) that, after having given a right-turn signal to indicate his intention to return to the right lane, a continuation of the signal, or its immediate reactivation, would not inform the driver of the dump truck that he intended to turn off the highway; and (2) that the dump truck was so close behind him that he could not safely make a 90 turn with the tractor-trailer, which was 50-52 feet in length.

Plaintiff's evidence was sufficient to establish defendant's actionable negligence, and it does not compel the conclusion that negligence on the part of Goldston was a proximate cause of the collision. Defendant's motions for nonsuit were therefore properly overruled. 3 Strong, N.C. Index, Negligence § 26 (1960). Its assignment of error No. 11 based thereon is likewise overruled.

Defendant assigns as errors: the submission of the 4th issue, which permitted the jury to award plaintiff damages for loss of use of the dump truck; the court's charge on this issue; and the admission of the evidence tending to show profits lost as a result of his deprivation of the truck. The charge on the 4th issue was as follows:

"Now, as to that issue, members of the jury, I instruct you that lost profits, that is profits lost from the loss of the use of a commercial vehicle, are a proper element of damages where such loss is the direct and necessary result of the defendant's wrongful conduct; and such profits are capable of being shown with a reasonable degree of certainty. Where the profits lost by the defendant's tortious conduct proximately and naturally flow from the defendant's wrongful act and are reasonably definite and certain they are recoverable. Those which are speculative and contingent are not recoverable; and I further instruct you, members of the jury, that it is the duty of the injured party to exercise ordinary care and diligence to avoid or lessen the damage; and for any part of the loss caused by his failure to do so he would not be permitted to recover.

"Now on that issue, you have heard the contentions of the counsel. Counsel have very ably argued to you each one of these issues and I will not go over the contention again.

"But briefly, the plaintiff contends that he lost some $50.00 a day by the loss of use of his truck, and that it would have taken at least some three or four weeks to get it repaired; and he contends that it would take much longer than that. He contends that he is entitled to some substantial amount for the loss of the use of the truck. The defendant, on the other hand, contends that *717 first, you should not reach the issue, but if you do reach it you should not answer it in any substantial amount. The defendant contends that the plaintiff failed to exercise due care to keep the loss down; that the most economical means would have been to either get him a new vehicle or to transfer the one part of the damaged one to another, which could have been done in two days, as the defendant contends; and that it would have been more economical to do it that way. The defendant further contends that the figures given by the plaintiff are speculative and contingent and are not given with a reasonable degree of certainty, and the defendant contends that you ought not to answer that issue in any amount and that if you should answer it in any amount, that you should answer it in some very small amount.

"Now it is a question of fact for you to determine from the evidence as you find the facts to be and I instruct you on that issue that you will answer it in such amount if any, as the plaintiff has satisfied you by the greater weight of the evidence that he has lost by the loss of use of his truck, as I have explained the law to you on that issue." (This paragraph was not assigned as error.)

Defendant's assignments of error bearing upon the 4th issue require an examination of the rules governing the right to recover damages for the loss of use of a motor vehicle.

When a plaintiff's vehicle is damaged by the negligence of a defendant, the plaintiff is entitled to recover the difference between the fair market value of the vehicle before and after the damage. Evidence of the cost of repairs or estimates thereof are competent to aid the jury in determining that difference. Simrel v. Meeler, 238 N.C. 668, 78 S.E.2d 766; United States Fidelity & Guaranty Co. v. P. & F. Motor Express, 220 N.C. 721, 18 S.E.2d 116. When a vehicle is negligently damaged, if it can be economically repaired, the plaintiff will also be entitled to recover such special damages as he has properly pleaded and proven for the loss of its use during the time he was necessarily deprived of it. Reliable Trucking Co. v. Payne, 233 N.C. 637, 65 S.E.2d 132. See also Binder v. General Motors Acceptance Corp., 222 N.C. 512, 23 S.E.2d 894. For a comprehensive discussion of the law governing the right of a plaintiff to recover for deprivation of use of a motor vehicle, see 25 C.J.S. Damages § 83c (1966), where the cases are collected. See also 6 Blashfield, Cyclopedia of Automobile Law & Practice §§ 3417-3420 (1945 Text & 1964 Cum.Supp.).

In general, the right to recover for loss of use is limited to situations in which the damage to the vehicle can be repaired at a reasonable cost and within a reasonable time. If the vehicle is totally destroyed as an instrument of conveyance or if, because parts are unavailable or for some other special reason, repairs would be so long delayed as to be improvident, the plaintiff must purchase another vehicle. In this situation, he would be entitled to damages for loss of use only if another vehicle was not immediately obtainable and, in consequence, he suffered loss of earnings during the interval between the accident and the acquisition of another vehicle. The interval would be limited to the period reasonably necessary to acquire the new vehicle. Colonial Motor Coach Corp. v. New York Cent. R. Co., 131 Misc. 891, 228 N.Y.S. 508 (Sup.Ct.); 8 Am.Jur.2d Automobiles and Highway Traffic § 1049 (1963).

The fact that an owner, in lieu of repairing a vehicle which could have been economically repaired, "trades it in" on new equipment, will not preclude him from recovering damages for loss of its use during the time reasonably required to purchase new equipment or to make the repairs, whichever is shorter. Glass v. Miller, 51 N.E.2d 299 (Ohio App.). See Hayes Freight Lines v. Tarver, 148 Ohio St. 82, 73 N.E.2d 192.

*718 Ordinarily the measure of damages for loss of use of a business vehicle is not the profits which the owner would have earned from its use during the time he was deprived of it; it is the cost of renting a similar vehicle during a reasonable period for repairs. Drewes v. Miller, 25 So. 2d 820 (La.App.); annots., Damages to Commercial Vehicle, 169 A.L.R. 1074, 1087-1098 (1947), 4 A.L.R. 1350, 1351-1363 (1919). This limitation is an application of the rule that one who seeks to hold another liable for damages must use reasonable diligence to avoid or mitigate them. 2 Strong, N.C. Index, Damages § 8 (1959); annot., Duty of one suing for damage to vehicle to minimize damages; 55 A.L.R.2d 936 (1957); National Dairy Products Corp. v. Jumper, 241 Miss. 339, 130 So. 2d 922. Thus, before a plaintiff may recover lost profits resulting from the deprivation of his vehicle, he must show (1) that he made a reasonable effort to obtain a substitute vehicle for the time required to repair or replace the damaged one, and (2) that he was unable to obtain one in the area reasonably related to his business. In the absence of such a showing, he may not recover lost profits. National Dairy Products Corp. v. Jumper, supra; Drewes v. Miller, supra; 25 C.J.S. Damages § 83c (1966). When, however, he has carried the burden of proving that no substitute vehicle could be rented, a plaintiff may recover lost profits if he can establish the amount of the loss with reasonable certainty. See Smith v. Corsat, 260 N.C. 92, 131 S.E.2d 894; Johnson v. Atlantic Coast R. Co., 140 N.C. 574, 53 S.E. 362; 8 Am.Jur.2d Automobiles and Highway Traffic § 1050 (1963). If a plaintiff could have rented a substitute vehicle, the cost of hiring it during the time reasonably necessary to acquire a new one or to repair the old one is the measure of his damage even though no other vehicle was rented. The burden is on the plaintiff to establish the cost of such hire. 8 Am.Jur.2d Automobiles and Highway Traffic § 1047 (1963).

Measured by the foregoing rules, it is apparent that the court's charge on the 4th issue (loss of use) did not meet the requirements of G.S. § 1-180. According to plaintiff's evidence, the truck was worth $2,500.00 before the collision, $1,000.00 thereafter, and the damage could have been repaired for $991.38 within 3-4 weeks. Thus, the jury might have found that repairs could have been economically made. Upon this finding, plaintiff would have been entitled to recover as damages for loss of use the reasonable cost of hiring a substitute vehicle during the time required to repair the truck with reasonable promptness. Plaintiff, however, sought only to recover lost profits, and the court permitted him to do this without showing that a substitute vehicle was unavailable in the area. His statement that he was unable to rent one from Greensboro Ford Company fell far short of proving his inability to hire a similar truck in the Research Triangle area, where he was conducting his hauling operations. Plaintiff likewise offered no evidence tending to show the cost of hiring a substitute vehicle. He made no effort to purchase another truck or to acquire a chassis on which (according to defendant's uncontradicted evidence) he could have mounted the undamaged dump body and power hoist in two days at a cost of $75.00. At the time of the trial, plaintiff still had the wrecked truck and, although twenty months had elapsed since the collision, it had not been repaired.

Thus, plaintiff, who had the burden of proof, laid no foundation to recover either lost profits or the cost of hiring a substitute vehicle for the three or four weeks in which his evidence tended to show repairs could have been made. The court therefore committed prejudicial error (1) in permitting plaintiff to testify that the deprivation of his truck reduced his business by one-third and cost him a net profit of $50.00 a day, and (2) in submitting the 4th issue. Having submitted the issue, he erred in failing to direct the jury to answer it NOTHING. *719 Assignments of error 1, 3, 9, and 18 are sustained.

Since the case goes back for a new trial we also consider assignment No. 14 which points out prejudicial error in the charge on the first issue. Plaintiff's allegations of negligence included, inter alia, an averment in the words of G.S. § 20-140 that defendant's agent was guilty of reckless driving. Defendant excepted to the following portion of his Honor's charge, which was based upon that allegation:

"Now still another section that I want to call to your attention is a provision of General Statutes 20-140; and one part of that statute provides in substance that any person who drives a vehicle upon a highway without due caution and circumspection and at a speed, or in a manner so as to endanger or be likely to endanger any property, shall be guilty of reckless driving; and a violation of that subsection of the statute would be negligence, and if such negligence were a proximate cause of a collision and damages that would be actionable negligence; that is it would be negligence to drive any vehicle on a highway without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property."

As we pointed out in Ingle v. Roy Stone Transfer Corp., 271 N.C. 276, 283-284, 156 S.E.2d 265, 271, allegations of reckless driving in the words of G.S. § 20-140, without more, do not justify a charge on reckless driving. To plead reckless driving effectively, a party must allege facts which show that the other was violating specific rules of the road in a criminally negligent manner. Since a person is civilly liable for his ordinary negligence, allegations of reckless driving can rarely add anything to the case except an unnecessary hazardas here demonstrated. Once the judge has given the jury the instructions which the pleadings and evidence require on the law of civil negligence, there is no need for him to superimpose an explanation of the law of criminal negligence. If plaintiff's evidence does not establish civil negligence, a fortiori, it will not prove reckless driving, which is criminal negligence. If, however, a party has properly pleaded reckless driving and the judge undertakes to charge upon it, G.S. § 1-180 requires him to tell the jury what facts they might find from the evidence would constitute reckless driving. It is not sufficient for the judge to read the statute and then (as he did here) leave it to the jury to apply the law to the facts and to decide for themselves what defendant's driver did, if anything, which constituted reckless driving. Assignment of error No. 14 is also sustained.

We deem it unnecessary to consider defendant's other assignments of error. The questions they pose may not arise in the next trial.

New trial.

LAKE and HUSKINS, JJ., took no part in the consideration or decision of this case.