Kunkel v. Cohagen

39 N.W.2d 609, 151 Neb. 774, 1949 Neb. LEXIS 148
CourtNebraska Supreme Court
DecidedNovember 18, 1949
DocketNo. 32642
StatusPublished
Cited by9 cases

This text of 39 N.W.2d 609 (Kunkel v. Cohagen) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kunkel v. Cohagen, 39 N.W.2d 609, 151 Neb. 774, 1949 Neb. LEXIS 148 (Neb. 1949).

Opinion

Simmons, C. J.

In this action plaintiff sought the recovery of damages resulting from an accident to a combine while being transported by defendant. Issues were made and trial had. Plaintiff recovered judgment. Plaintiff appeals for [775]*775reasons hereinafter stated. We affirm the judgment of the trial court.

Plaintiff purchased the combine in 1946, and at that time became its third owner. It had been extensively used prior to its purchase. Plaintiff used it for harvesting for hire the season of 1946 and the beginning of the 1947 season. He engaged the defendant to transport the machine from Kansas to Lincoln County for a charge of $60, which was paid. While being so transported on either July 30 or July 31, 1947, an accident occurred causing substantial damage to the combine. After the accident the machine was repaired and on August 17, plaintiff started with it to North Dakota where it was sold on August 20, 1947.

Plaintiff sued for damages, alleging that the fair market value of the combine prior to the accident was $5,000, and that as a result of the damages it was absolutely worthless, and sought a recovery of $5,000. Plaintiff further alleged that at the time of the accident he had a contract to cut wheat for a period of 26 days and that the net profits from the operation would have been $200 per day, and sued for loss of earnings in the sum of $5,200, or a total of $10,200. The defendant moved to strike the allegations of the petition with reference to loss of earnings on the ground that they did not plead any proper measure of damages. The trial court overruled the motion. So far as material here, the answer was a general denial.

The trial court instructed the jury that if it found for the plaintiff it should render judgment for the difference between the reasonable market value of the combine immediately before and immediately after the accident. The court told the jury it could consider among other things the time and expense it would reasonably take to repair the combine; that evidence had been introduced relative to the price per acre being paid for the harvest of grain by a combine at the time of such injury, and as to profits that reasonably could have been made by the [776]*776use of such combine for the harvest of grain; and that the jury could not compute the amount of the plaintiff’s recovery from such profits, either partially or wholly, but it could take into consideration what profits the evidence showed could reasonably have been made from the use of such combine in making a determination of the reasonable market value of said combine, both before and after its injury.

The jury returned a verdict for $1,218, which included, under the court’s instructions, interest at six percent for one year and four months.

Plaintiff’s first contention here is that the trial court erred in refusing to allow the admission of evidence of anticipated profits.

Rules 8 a 2 (6) and (7) of this court require a statement of facts with appropriate reference to the record. Plaintiff makes a general assignment of error in refusing the admission of evidence without specific reference to the record. By way of argument plaintiff makes the same general charge referring by citation to only one specific refusal to admit evidence on an offer of proof. As to that the record shows that almost at the close of his case-in-chief plaintiff, as his own witness, offered to prove that at the time he engaged defendant to transport the combine he had contracted with one Thompson for cutting one-half of 500 acres of grain at a price of $8 per acre; that he was able to cut some 25 acres of grain per day; that his expenses would be about $10 a day; and that he was prevented from realizing profits in' the amount of $1,900 to $2,000 on the contract by reason of the damage to the machine. The trial court denied the admission of the evidence offered. The record shows that prior thereto, over general objections and objections that it was not the proper measure of damages, plaintiff had testified to all the facts contained in the offer, excluding the computation of profits and that Thompson, over general objections as to competency, had testified in corroboration. The record further shows that the [777]*777offer was made because plaintiff seemed in doubt as to the prior admission of the evidence. Under these circumstances there was no prejudicial error in the trial court’s ruling. The rule is: “Alleged error in the exclusion of offered testimony is of no avail if the same testimony, or testimony to the same effect, had been, or was afterwards, allowed to be given by the witness.” Gugelman v. Kansas City Life Ins. Co., 137 Neb. 411, 289 N. W. 842.

The rule is: “An assignment of error directed to the rejection of offered testimony may be disregarded on appeal, if the places in the record where the offer of proof and the challenged ruling may be found are not pointed out in appellant’s brief.” Whitney v. Broeder, 94 Neb. 305, 143 N. W. 228. We are not required to search the record to find the other rejections of evidence about which plaintiff complains. Parenthetically • it may be pointed out that the record shows that about the time the Thompson cutting was completed, plaintiff took his combine to North Dakota and sold it and was thereafter unable to profit from its use, and that other claimed profits were speculative, remote, and contingent.

Plaintiff’s next contention is that the trial court erred in not submitting to the jury his right to recover for loss of profits separate and apart from his right to recover the difference in the value of the combine immediately before and after the injury.

Plaintiff relies upon the rule that a party may recover for gains prevented as well as for losses sustained when such damages not only are certain but are the natural and probable result of the wrong suffered. Wittenberg v. Mollyneaux, 60 Neb. 583, 83 N. W. 842.

We are not here concerned with the applicability of that rule but rather with the question as to whether or not plaintiff has produced evidence that entitles him to the benefit of that rule in any event.

We are dealing here with a situation where there was damage to and not the total destruction of a machine [778]*778used for commercial purposes. The reasonable value of the use of machinery for commercial purposes is the reasonable net rental value upon the market at the place in question of the machine involved or machinery of like capacity and performance, the lessee bearing all such expenses as he would have to bear in the operation of his own machine. Southern Ry. in Kentucky v. Kentucky Grocery Co., 166 Ky. 94, 178 S. W. 1162; A. Mortellaro & Co. v. Atlantic Coast Line R. R. Co., 91 Fla. 230, 107 So. 528; Conley v. Kansas City Rys. Co. (Mo. App.), 259 S. W. 153; Webb-North Motor Co. v. Ross (Tex. Civ. App.), 42 S. W. 2d 1086; Jellum v. Grays Harbor Fuel Co., 160 Wash. 585, 295 P. 939; The Conqueror, 166 U. S. 110, 17 S. Ct. 510, 41 L. Ed. 937; Hanson v. Hall, 202 Minn. 381, 279 N. W. 227. Such evidence more accurately and fairly shows the value of the use than would loss of profits during the period reasonably required to repair the damaged machine. Knaus Truck Lines v. Commercial Freight Lines, 238 Iowa 1356, 29 N. W. 2d 204.

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Cite This Page — Counsel Stack

Bluebook (online)
39 N.W.2d 609, 151 Neb. 774, 1949 Neb. LEXIS 148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kunkel-v-cohagen-neb-1949.