Ohio Power Co. v. Johnston

247 N.E.2d 338, 18 Ohio Misc. 55, 47 Ohio Op. 2d 93, 1968 Ohio Misc. LEXIS 222
CourtHancock County Court of Common Pleas
DecidedNovember 14, 1968
DocketNo. 34716
StatusPublished
Cited by13 cases

This text of 247 N.E.2d 338 (Ohio Power Co. v. Johnston) is published on Counsel Stack Legal Research, covering Hancock County Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ohio Power Co. v. Johnston, 247 N.E.2d 338, 18 Ohio Misc. 55, 47 Ohio Op. 2d 93, 1968 Ohio Misc. LEXIS 222 (Ohio Super. Ct. 1968).

Opinion

Moorhead, J.

The Ohio Power Company brought this action for damages occasioned by the breaking of said power pole. Thé defendant, Carl Roger Johnston, was the owner and operator of a motor vehicle, which, on June 17, 1966, went over the curb along the east side of Western Avenue in the city of Findlay, Ohio, and struck a power pole of the plaintiff, which-pole was then a part of plaintiff's power system along said Western Avenue.

Plaintiff, claims damages totaling $855.78, which is broken down as follows:

Materials $533.27
Less salvage 245.41 $287.86
Plus Stores Expense 51.19 339.05
Total Material Costs $339.05
Repair of Damaged Property — Labor & Material 75.30 Labor
. 4 hours at Regular Rates 13.94 33% hours at Rate and % 161.54 175.48
Fringe Benefits 55.63
Employees’ Benefits 7.16
Supervision & Engineering 171.78
Total Labor costs Equipment Expense — 9% hours
410.05
31.38
Total $855.78

'Both parties having orally waived a trial by jury and having agreed that the court may sit as court and jury, this cause carne before the court on the petition of the plaintiff, the answer of the defendant, the written interrogatories of the defendant, duly answered under oath by the plaintiff, the stipulations of the parties, and the evidence.

From the eyiden.ee and testimony produced by both [57]*57plaintiff and defendant with regard to the question of defendant’s liability and negligence, and upon the close of all the evidence, it is the decision of the court that the defendant was negligent in the operation of his motor vehicle and proximately caused damages to plaintiff, and accordingly, is liable to the plaintiff for damages sustained by plaintiff in defendant’s striking plaintiff’s power pole.

The real problems involved in this cause are those relating to the items of damages claimed by the plaintiff. Plaintiff’s primary contention with regard to the damages sustained by it are that the pole is a part of a power distribution system; that the measure of damages is the cost of repairs incurred by the plaintiff, which includes certain indirect expenses; defendant urges that the pole is a distinct and separate item; that the attached fixtures, including transformers, had been in service for various periods of time, and accordingly, there should be a depreciation factor applied to the materials damaged and required to be replaced, or repaired, and that plaintiff’s indirect expenses are too remote and speculative, and are not directly attributable to the alleged negligence of the defendant-

Both plaintiff and defendant presented their respective cases, utilizing the theory of damages as being that of cost of repairs. In addition, it is apparent from the briefs filed by plaintiff and defendant that the parties are in agreement that the measure of damages is to be determined by the cost of repair. This basis for determining damages is recognized in Ohio as the more accurate method of measuring damages where the property damaged is not an item generally bought and sold on the open market and where the concept of “market value” is virtually impossible to apply. See Northwest Natural Gas Company v. First Congregational Church, 126 Ohio St. 140 at p. 150; also, Wooster Feed Manufacturing Company v. Village of Tallmadge, 82 Ohio App. 499. The rule in Ohio is stated generally in 16 Ohio Jurisprudence 2d, Damages, Section 72, page 204:

“* * * where, though the articles in question have some market value, such value is clearly not the true test of the injury suffered by the plaintiff, or where, from the [58]*58situation of the property, or its character, or from some other cause, it cannot be said to have a market value.”

There was no dispute but what there was need for the repair work to be done, nor was it suggested, or established by the defendant that any lesser expenditure would have sufficed to make good the damage done. Rather, defendant argues that the work thus done served, not only to make good the damage inflicted, but also conferred upon plaintiff a further benefit, for which there should be an appropriate reduction.

This method of determining the damages will determine the amount. The principle of law in Ohio with regard to recovery of damages in a tort action is well set forth in 16 Ohio Jurisprudence 2d, Damages, Section 8, pages 143, 144:

“The cardinal and fundamental rule of the law of damages is that the injured party shall have compensation for the injury sustained. Compensatory damages are intended to make whole the plaintiff for the wrong done to him by the defendant. Compensation which in theory at least will make the party injured whole, is the rule, whether the action is ex delicto or ex contractu, * *

In applying this general principle, it is now necessary for the court to determine whether or not the repairs made by the plaintiff in this action do more than make the plaintiff whole.

This issue appears somewhat new in the state of Ohio, and accordingly, cases involving this issue are lower court decisions, and it, therefore, becomes encumbent upon this court to examine decisions from other jurisdictions, which utilize and apply the same general rules of law in actions of this nature.

The Supreme Court of New Jersey, in the case of New Jersey Power and Light Company v. Matee (1963), 41 N. J. 439, 197A 2d 194, in determining the question now before this court, held:

“The difficulty is that there is not discernible life expectancy of an individual pole and that although the period of 36 years is used for accounting purposes, the pole that was destroyed, might well have served for a much longer [59]*59period and the new pole may last for bnt a few years. Moreover, becanse of changes in circumstances or in technology, it cannot be known whether the pole would ever have been replaced. In short, at least upon the record before us, we cannot say with reasonable assurance that the installation of a new pole did more than remedy the wrong done. An injured party should not he required to lay out money, as defendants’ approach would require, upon a questionable assumption that one day its worth will be recaptured.”

This reasoning was also followed in the case of Carolina Power and Light Company v. Paul (1964), 261 N. C. 710, 136 Southeastern Section 103.

Based upon the foregoing case law and the facts of this case, it is the opinion of the court that the subject power pole, and its attached fixtures and equipment, were an integral part of a power distribution system, and that there cannot be a proper evaluation of the value of a particular item, or items, without reference to the value of the entire system. It is, therefore, impractical to attempt to apply a measure of damages, based on the difference in value before and after the accident. The fact that the cost of repairs may exceed the value of the power pole and fixtures replaced is Immaterial, since the subject items, i.

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Cite This Page — Counsel Stack

Bluebook (online)
247 N.E.2d 338, 18 Ohio Misc. 55, 47 Ohio Op. 2d 93, 1968 Ohio Misc. LEXIS 222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ohio-power-co-v-johnston-ohctcomplhancoc-1968.