The judgment is complained of because it includes special damages when none such were alleged in the complaint, and because a wrong measure of damages was adopted.
The damages for which judgment was rendered were formed, wholly or nearly so, of the value of the loss of use of the auto-truck. The only allegation of the complaint which sets forth the plaintiff's claim for damages is, that "said Ralph N. Blakeslee Company has sustained damages from the replevying of said truck in the sum of $3,000." Evidence was offered, without objection, of the value of the use of the truck during the period of its detention when it was in usable condition. At the conclusion of the argument the defendants claimed the plaintiff was not entitled to recover for the loss of the use of the truck, since no special damages were set up in the complaint.
Special damage is that which the law does not necessarily imply from the acts complained of. The detention of the auto-truck necessarily implied a loss of its use during the period of detention, and was a necessary result thereof. The defendants thus had notice that the complaint claimed damages which involved loss of use of this truck. They might, upon motion, have secured an order for a more specific statement of the exact claim for loss of use, but having gone to trial and permitted introduction of the value of the loss of use, they cannot now be heard to complain of the inadequacy of the notice of loss of use. The inability to follow one's ordinary vocation may be proved in the absence of allegation in the complaint showing the extent *Page 485 of the injury, but proof of loss to one while in some special pursuit yielding a pecuniary reward, cannot be admitted in the absence of such allegation in the complaint. Such losses are peculiar to the condition of the injured party, and hence are special damage and cannot be proved, when not alleged, over objection. These consequences depend on the peculiar situation of the plaintiff, and these the law will not imply. Tomlinson v. Derby, 43 Conn. 562, 567; Smith v. Whittlesey,79 Conn. 189, 191, 63 A. 1085. This illustration signifies the difference between it and the situation in this case.
Whether a judgment which included special damages, which had been admitted in evidence without objection, would be to that extent erroneous, we need not now inquire. The damage for loss of use in this action was not special damages, as such are known to our law.
The defendants insist that the most the plaintiff was entitled to recover, was for the depreciation in the value of the truck between the time of the replevin and the time it was taken by the plaintiff on execution. Manifestly this would not indemnify the plaintiff for the injury it had sustained by reason of the unlawful taking and detention of its truck. In cases of merchandise kept for sale or consumption, interest on the value of the property detained would measure the loss. In cases where the property has a usable value, the loss of the use is the damage suffered and the value of that use the measure of damage. In each case, if there has been a diminution in the value of the article taken, the depreciation is also an element of the recovery.Adams v. Wright, 74 Conn. 551, 51 A. 537; BostonLoan Co. v. Myers, 143 Mass. 446, 447, 9 N.E. 805;Clark v. Martin, 120 Mass. 543; Allen v. Fox, 51 N.Y. 562,565. A similar rule prevails in trover; Lewis v. *Page 486 Morse, 20 Conn. 211, 217; in admiralty; The H. F.Dimock, 23 C.C.A. 123, 77 F. 226; for injury to personal property; Fritts v. New York N.E. R. Co.,62 Conn. 503, 509, 26 A. 347; and for injury to a horse through a defect in the highway. Brown v. Southbury,53 Conn. 212, 214, 1 A. 819. The plaintiff is to be replaced, through the action on the replevin bond, in the position it would have occupied if the truck had not been replevied. Bradley v. Reynolds, 61 Conn. 271,286, 23 A. 928. The language of the replevin bond is broad enough to include damages for the loss of use.Gould v. Hayes, 71 Conn. 86, 94, 40 A. 930.
The defendants' claim, that it was the duty of the plaintiff to replace the truck within a reasonable time after it was replevied from it, is without merit. The defendant had taken from it the truck; it was under no duty to mitigate the damage done it by the wrongful taking, by purchasing and using another truck. It had suffered one loss through the unlawful taking, it should not be required to incur the liability of increasing this loss in order to reduce the damages incurred by the unlawful taking. Boston Loan Co. v. Myers,143 Mass. 446, 447, 9 N.E. 805.
One other reason of appeal requires notice. The defendant claims that the expenditures made in the necessary repairs of the truck should go to mitigate the judgment rendered, and were made in good faith under a bona fide claim of ownership. We understand that these expenditures are those made upon the truck in order to put it in condition for use. The truck was not fit for use until made so by the expenditures of the defendant. Unrepaired, the loss of its use was obviously not large. While the plaintiff was entitled to the use of the truck during the whole time of detention, no claim is made for the value of its use until after these repairs had made it fit for use. The defendant's expenditures *Page 487 made the truck, which was before incapable of operation, now capable of use. So that a part of the value of the use was furnished by the defendant. It is only fair that he should be permitted to deduct this expenditure, with interest thereon, from the value of the use. To this balance should be added the depreciation in the value of the truck, and interest computed on these sums until date of judgment, and judgment rendered for this amount in favor of plaintiff.
There is error in part, the judgment is reversed and the Superior Court is directed to ascertain the cost of said repairs and thereupon to render judgment in accordance with this opinion.
In this opinion the other judges concurred.