dissenting. The majority decision not only ignores 100 years of law, it also allows a party to unlawfully retain another’s property without incurring civil damages. This decision involves a replevin action and the holding adopted by the majority will drastically affect such actions in the future. Therefore, my dissent necessitates a thorough discussion of the facts and the applicable law.
The sole issue in this case concerns the measure of damages arising from a wrongful detention of certain personal property. See Ark. Stat. Ann. § 34-2116 (Repl. 1962). Although the parties tried other matters relative to an oral lease to which they had agreed, appellants in this appeal challenge only that part of the trial court’s decision which failed to award the rental value for appellees’ detention of a forklift.
At trial, appellees claimed that appellant, Bob White, loaned them his forklift for the term of an oral lease under which appellants were leasing two rooms from appellees. White contended the forklift agreement between the parties had nothing to do with the lease.
The trial court agreed with White, finding that the use of the forklift by the appellees constituted a gratuitous bailment which was separate from the parties’ lease. The court held appellees unlawfully detained the forklift, but since they had never agreed to pay rent, the court limited appellants’ damages to the time appellees used it. Based upon the settled law in Arkansas, the measure applied by the court was clearly erroneous.
Our appellate courts have had no recent occasion to consider the issue posed here. However in Continental Gin Co. v. Clement, 176 Ark. 864, 4 S.W.2d 901 (1928), the Supreme Court held that the damages for the wrongful detention of property is the usable value of the property. See also, Cullin-McCurdy Construction Co. v. Vulcan Iron Works, 93 Ark. 342, 124 S.W. 1023 (1910).
The Cullin-McCurdy case was cited recently in Garoogian v. Medlock, 592 F.2d 997 (8th Cir. 1979). In Medlock, the court upheld a jury instruction, as being based on Arkansas case law, which allowed the plaintiff (1) the fair market rental value of his tractor which the defendant detained for 45 days, and (2) the amount of damage to the tractor caused by the defendant.
More than 100 years ago, the Supreme Court in Kelly v. Altemus, 34 Ark. 184, 188 (1879), held the ordinary measure of damages for the plaintiff in replevin, in the absence of proof of special damages, is legal interest on the value of the property in addition to the property itself or its value. Regarding property having a usable value, the court stated the true measure is the value of the use during the detention. See also 77 C.J.S Replevin § 280 (1952).
The usable value rule adopted in Kelly is stated in Wells on Replevin (2d ed.), p. 492, § 580. See also, Korb v. Schroedel, 93 Wis.2d 207, 286 N.W.2d 589 (1980), and D. Dobbs. Handbook on the Law of Remedies, Damages — Equity — Restitution, § 5.14(1973). Wells discussed the rule and its proper application as follows:
This rule, allowing the value of the use, is peculiar to the action of replevin. It grows out of the fact that the plaintiff asserts his continued ownership in the property, and seeks to recover the property and not its value. * * * It only applies in cases where the party claiming the use is in a situation to use it, and had a right to use it, [citing Barney v. Douglass, 22 Wis. 464] and only applies to cases where the property can be put to use. It is for only the loss of the use of property which the party is in a situation to use, and can use, that the value of the use is allowed. [Emphasis supplied].
As I previously noted, the trial court found the appellees had retained the forklift for months after its return was demanded. The trial court, however, gave appellants damages for only the five days appellees made use of it, and the majority of this court has now affirmed that award of damages. In upholding such award, our Court has allowed appellees, who wrongfully detained appellants’ property, to limit their damages merely because they chose to use the forklift for five days even though they withheld it for thirteen months. In sum, the damages depended upon whether appellees actually used the forklift. If this measure of damages is countenanced, other inequitable situations will likely arise. For example, consider the following possible scenario. A person loans his car to a friend but later, because of a dispute, the friend contentiously refuses to return it. Instead, being aware of the decision in this case, he stores the car in his garage never to use it. Under the rationale used in upholding the award in this cause, the car owner who files a replevin action for his car’s return would receive no civil compensatory damages. Such a result would be absurd as well as contrary to my understanding of the applicable law. Here, once the trial court found the property was wrongfully detained, it was then required to award damages based on the usable value of the forklift for the period of detention. As noted in Kelly v. Altemus, supra, and Wells on Replevin, the value of the use is for the loss of use of the property which the party — in the instant case, appellants — is in a situation to use and can use. Contrary to the decision of the majority, it simply does not matter whether appellees used or could have used the forklift. Appellant, White, testified he had a chance to rent the machine, he demanded its return from the appellees, and he was refused. He offered substantial, additional evidence concerning the damages incurred because the forklift was not returned, and damages should have been awarded according to the machine’s usable value.
In conclusion, the majority makes a strange reference to the fact that the appellants did not offer evidence to prove their cause. I cannot imagine how much more proof is necessary. In fact, the trial court found the appellants’ assigned rate of $65 per day to be a fair rental value. Appellants also offered testimony and evidentiary documents from which the court could have easily determined the period the property was wrongfully detained. On this point, the majority fails, at least to my satisfaction, to indicate what other evidence appellants were required to present to prove their damages. My review of the record reveals they offered substantial proof on the issue of damages. The trial court merely did not consider or rely on much of that evidence because it applied the wrong measure of damages.
Without stating so, the majority has adopted for the first time a rule which affects the measure of damages in replevin actions. This rule is stated in Armstrong & Latta v. City of Philadelphia, 249 Pa. 39, 94 A. 455 (1915), as follows:
If defendant did not use the property, the deterioration which it would have suffered by use must be deducted from the value of the use.
While I do not necessarily object to the rule cited in the Pennsylvania case, I believe that everyone should recognize that this rule has never been applied in an Arkansas case. I believe it is unfair for this Court to penalize the appellant because he failed to introduce evidence on how much the forklift depreciated during the period of detention. At the least, I believe this case should be remanded for a new trial so the parties and trial court can try this matter in view of the new rules we have adopted. Continental Geophysical Co. v. Adair, 243 Ark. 589, 420 S.W.2d 836 (1967), and Fidelity Mutual Life Insurance Co. v. Beck, 84 Ark. 57, 104 S.W. 533 (1907).
Because of the impact this decision will have in future replevin actions, I am of the opinion this case should be reviewed by our Supreme Court. I especially believe a review is appropriate because the Supreme Court has not, in recent years, addressed the usable value rule and its application in replevin actions. I am convinced clarification is needed.
Cooper and Corbin, JJ., join in this dissent.