I concur in the result and agree that there was error in the judgment appealed from, but differ with the rule adopted in the majority opinion upon the two questions of evidence passed upon.
The plaintiff sought to recover the value of the use of his automobile, which was damaged while in the care of the defendant in its garage by its negligence, together with the wages of his chauffeur during the period of loss of use of the automobile.
Error is assigned in the exclusion of the testimony of an expert as to the rental value per day of a car similar to the plaintiff's, because the plaintiff used his car for pleasure and not business purposes, and did not try to substitute another car. As the plaintiff was seeking to recover for having been deprived of the use of his car, through the defendant's negligence, the ruling was that loss of use of personal property devoted to personal enjoyment, caused by another's negligence, could not be recovered where the owner had not in fact rented another car in place of the injured one.
Our law gives just compensation for a negligent injury to personal property; it seeks to place the injured person in as nearly his former condition as is practically possible. Cadwell v. Canton, 81 Conn. 288, 292,70 A. 1025. In the event of complete destruction, the measure of damages is the value of the property destroyed at the time of destruction with interest therefrom. When the injury is less than a complete loss, the measure of damages is the difference in value between the property before and after the loss, with interest from *Page 601 date of loss. Fritts v. New York N.E. R. Co.,62 Conn. 503, 510, 26 A. 347; Cadwell v. Canton, 81 Conn. 288,292, 70 A. 1025; McCook v. McAdams, 76 Neb. 1,106 N.W. 988; Louisville N. R. Co. v. Mertz,Ibach Co., 149 Ala. 561, 564, 43 So. 7; General FireExtinguisher Co. v. Beal-Doyle Dry Goods Co., 110 Ark. 49,160 S.W. 889, 892; 8 Thompson on Negligence, § 7242.
There is no difference in the rule for measuring damages in cases of complete and partial loss, whether the property be used for profit or pleasure. When the property injured may be repaired, if the repairs will substantially restore the property to its former condition, the cost of such repairs will ordinarily furnish proper proof of the loss. If the repairs will not accomplish this, their cost plus the diminution in value of the injured property will ordinarily furnish proper proof of the loss. Cooper v. Knight, 147 S.W. 349, 351 (Tex.Civ.App. 1912). If the repairs will make the property more valuable than it was before the injury, the cost of the repairs less the increased value will ordinarily measure the loss. Cadwell v. Canton, 81 Conn. 288,293, 70 A. 1025.
If, in addition to the injury to the property, the owner has lost its use for a period of time, as for example during the process of repair, he is entitled to the value of the use of the property during this period; otherwise he will not have received just compensation for his loss, for the use during the period of deprivation is a part of the loss. Fritts v. New York N.E. R. Co., 62 Conn. 503,509, 26 A. 347. In an action for injury to a horse through a defect in a highway, we held that the loss of the use of the horse was the direct and natural consequence of the injury and a proper element of damage. Brown v. Southbury, 53 Conn. 212, 214,1 A. 819. *Page 602
This has been the general ruling of the authorities.New Haven Steamboat Trans. Co. v. Vanderbilt,16 Conn. 420; Wheeler Harding v. Townshend, 42 Vt. 15;Shelbyville L. B.R. Co. v. Lewark, 4 Ind. 471, 473;Street v. Laumier, 34 Mo. 469; Johnson v. Holyoke,105 Mass. 80; Mizner v. Frazier, 40 Mich. 592, 595; Latham v. Cleveland, C., C. St. L. Ry. Co., 164 Ill. App. 559,563; Crossen v. Chicago J. E. Ry. Co., 158 Ill. App. 42,44; The Atlas, 93 U.S. (3 Otto) 302; Williamson v.Barrett, 54 U.S. (13 How.) 101; 1 Sedgwick on Damages (9th Ed.) § 195; 6 Thompson on Negligence, § 7242. A similar rule prevails in replevin; Adams v. Wright,74 Conn. 551, 554, 51 A. 537; and in trover, Lewis v.Morse, 20 Conn. 211, 217; and in admiralty, The H. F.Dimock, 23 C.C.A. 123, 77 F. 226. These and many other authorities establish the rule that: For negligent injury to personal property the fullest measure of recovery is the difference in value of the property before and after the injury, plus the average or usual value of the use of the property during the period the owner is deprived of its use. As a whole the authorities (except in a few admiralty cases) make no suggestion of a difference in the measure of damage for loss of use of an article of profit and one of luxury. The value of the use is fixed by finding the market value of the use of the property during the period of loss of use. The rental value of the property, if it has one, helps to ascertain the value of the loss of use. Trout Auto Livery Co. v. People's GasL. C. Co., 168 Ill. App. 56, 60; Universal TaximeterCab Co. v. Blumenthal, 143 N.Y.S. 1056; Buchanan'sSons v. Cranford Co., 112 N.Y. App. Div. 278,279, 98 N.Y.S. 378. But rental value, while evidential, is not conclusive. For the rental value may include, for example, a substantial sum for wear and tear and depreciation. The rental value of an automobile, as is well known, is determined not alone by the value *Page 603 of the use, but by adding to this a sum for wear and tear and depreciation.
Since compensation for injury to personal property is the cardinal rule for the measure of the damage, there would seem to be no room for affording a recovery for a deprivation of the use of an automobile devoted to business, and denying it to one devoted to pleasure uses. The value of the use of personal property is not the mere value of its intended use but of its present use. The value of an article to its owner, as Sedgwick points out, lies in his right to use, enjoy and dispose of it. These are the rights of property which ownership vests in him, and whether he, in fact, avails himself of his right of use does not in the least affect the value of his use. 1 Sedgwick on Damages (9th Ed.) § 243a. His right to the use of his property is not diminished by the use the owner makes of it. His right of user, whether for business or pleasure, is absolute, and whoever injures him in the exercise of that right renders himself liable for consequent damage. The cases where this point has directly arisen seem to be comparatively few, and, outside of New York, to have been decided in harmony with the general rule. The Mediana, L. R. (1900) App. Cas. 113; The Greta Holme, L. R. (1897) App. Cas. 597;Hunt Co. v. Boston Elevated Ry. Co., 199 Mass. 220, 236,85 N.E. 446. In two cases in the Supreme Court of New York this distinction has been upheld. Foley v.Forty-Second Street Ry. Co., 52 Misc. 183,101 N.Y.S. 780; Bondy v. New York City Ry. Co., 56 Misc. Rep. 602, 107 N.Y.S. 31. A later case, Murphy v.New York City Ry. Co., 58 Misc. 237,108 N.Y.S. 1021, 1023, is cited by Sedgwick, § 243b, as reversing these two cases. I think this view is the result of an acceptance of the concurring opinion as the opinion of the court, and overlooks the opinion of the court which supports them. The concurring opinion strongly asserts *Page 604 the right of recovery, although the use of the property injured may have been a pleasure use, and attempts to distinguish these cases upon the ground that they furnished no proof that the injured property had a salable value. I think it difficult to clearly see this distinction. Further examination of New York cases would seem to indicate that these two cases were departures from the rule generally adopted in New York, and so to impair their authority. Schalscha v.Third Ave. R. Co., 19 Misc. 141,43 N.Y.S. 251, 252; Hutton v. Murphy, 9 Misc. 151,29 N.Y.S. 70; Wellman v. Miner, 19 Misc. 644,44 N.Y.S. 417; Moore v. Metropolitan Street Ry. Co.,84 N.Y. App. Div. 613, 617, 82 N.Y.S. 778; Buchanan'sSons v. Cranford Co., 112 N.Y. App. Div. 278, 279,98 N.Y.S. 378; Allen v. Fox, 51 N.Y. 562, 565;Jackson Architectural Iron Works v. Hurlbut, 158 N.Y. 34,52 N.E. 665.
I think evidence of the rental value of the car was admissible as tending to prove the value of the use, and that the exclusion of this evidence was erroneous.
Error is assigned in ruling out the evidence of the amount which the plaintiff paid his chauffeur during the period he was deprived of the use of his car while it was being repaired. This offer followed the second count, wherein it was alleged that the plaintiff was under contract to pay and did pay his chauffeur during the period the car was being repaired. If the owner receives, for negligent injury to his property, the difference in the value of his property before and after the injury, or the cost of the repairs, if the parties substitute this as the measure of damage to the property, he will receive compensation for the injury to his property. If the injury occasions his loss of its use during the period of its repair, he will receive the equivalent in value of the use, and this sum will enable him to supply himself *Page 605 with other property to take the place of his own. The law thus gives him back his property and pays him the value of the use he has lost. This places him in the position of never having lost the use of his property. If the plaintiff lost the use of his car while it was being repaired and received the value of the use of the car, he may with this procure another car and continue to use the services of his chauffeur as he would have done had his car remained uninjured. If he should be permitted to recover, in addition to the loss to the car and the value of the use lost, the wages paid the chauffeur, he would be the gainer by the accident of the wages of the chauffeur; and this would be penalizing the negligence instead of compensating the injured. If the case were one where no other car could be hired, there would be more reason in the claim that these wages were special damages consequent upon the negligent injury. But no claim of this character was, or could be, made in this case. The only instance which I find where a court has passed upon this express claim was in Dillon v. Mundet, 145 N.Y.S. 975, and it was there denied.
The ruling excluding this evidence was in my opinion correct.