Ling v. Bell

207 S.E.2d 789 (1974)

23 N.C. App. 10

Keefer Raymond LING, Jr. v. Edwin Graham BELL.

No. 7427DC482.

Court of Appeals of North Carolina.

September 4, 1974.

*791 Mullen, Holland & Harrell, P. A., by Philip V. Harrell, Gastonia, for plaintiff appellee.

Craighill, Rendleman & Clarkson, P. A., by Hugh B. Campbell, Jr., Charlotte, for defendant appellant.

MORRIS, Judge.

In Roberts v. Freight Carriers, 273 N.C. 600, 606, 160 S.E.2d 712, 717 (1968), the Supreme Court set forth the rule for damages for the loss of use of a vehicle.

"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. Trucking Co. v. Payne, 233 N.C. 637, 65 S.E.2d 132. See also Binder v. Acceptance Corp., 222 N.C. 512, 23 S.E.2d 894."

This right to recover for loss of use is limited to situations in which damage to the vehicle can be repaired at a reasonable cost and within a reasonable time. The measure of damages is the cost of renting a similar vehicle during a reasonable period for repairs. In the event that the vehicle cannot be repaired or repairs would be delayed for an unreasonable time, plaintiff has the duty to purchase another vehicle, and he can recover the rental value of a replacement vehicle for the interval reasonably necessary for the acquisition of a new vehicle. Roberts v. Freight Carriers, supra.

Plaintiff's evidence tended to show that the vehicle damaged was one used by plaintiff's wife to transport her to and from her work, and further that the vehicle rented was returned during the time his wife was on vacation and at the time he purchased a new car for her transportation to and from work. It appears that he did check on the time necessary to complete the repairs. We are of the opinion that plaintiff's evidence meets the minimal requirements of taking his case to the jury on the issue of damages for the loss of use.

Nevertheless, we feel that the instruction of the court was inadequate with respect to plaintiff's duty to avoid or mitigate his damages. In the above-quoted portion of its instruction, the court merely stated that defendant contended that the repair period was unreasonable, and that plaintiff contended in effect that the length of the repair period was beyond his control.

Plaintiff's own evidence was that he had the car taken on the day of the accident to Lewis Motor Company and that he did not discuss the length of time required for repairs until two or three days later. While he was aware of other repair shops in the area, plaintiff made no inquiries of other shops concerning repairs. He also failed to *792 investigate the possibility of the loan of a car while his car was being repaired. For a few months prior to the time of the accident, plaintiff had been looking for a new car to replace the one his wife had been drivingthe vehicle involved in the accident. Plaintiff rented a car on the day of the accident, because the car damaged had been the car used by his wife to drive to work. Plaintiff kept the rented car for 11 days and continued to use his own car to transport himself to work. At the end of 11 days, plaintiff returned the rented car for seven or eight days, while his wife was on vacation. At the end of this period, he once again rented a car. The second rental car was returned three weeks and one day later when plaintiff purchased a new car. When asked by counsel why he had not purchased a new car earlier, plaintiff responded that "the main reason was that we hadn't found one we wanted to purchase."

While this evidence is sufficient to raise a question of fact whether the cost and period of time of the car rental was reasonable, since plaintiff has a duty to purchase a replacement vehicle if the time required for repair is excessive, Roberts v. Freight Carriers, supra, it was error for the trial court to submit the issue of replacement cost without a more complete instruction. The court should have charged that, in order to award damages for rental value during the period of deprivation, the jury must find the period of time in which rental expenses were incurred was reasonable. The court should have further charged that if the period of time required for repairs was unreasonable, the recovery for rental expense should be limited to that period from the date of the accident to that date by which plaintiff, with a reasonably diligent effort, could have purchased a replacement vehicle.

For the reasons stated, defendant is entitled to a new trial.

VAUGHN and BALEY, JJ., concur.