Rook v. John F. Oliver Trucking Co.

556 S.W.2d 200, 1977 Mo. App. LEXIS 2267
CourtMissouri Court of Appeals
DecidedSeptember 6, 1977
DocketNo. 38781
StatusPublished
Cited by1 cases

This text of 556 S.W.2d 200 (Rook v. John F. Oliver Trucking Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rook v. John F. Oliver Trucking Co., 556 S.W.2d 200, 1977 Mo. App. LEXIS 2267 (Mo. Ct. App. 1977).

Opinion

WEIER, Judge.

This appeal represents the latest in a long series of legal proceedings arising out of a truck-automobile collision that occurred on December 11, 1971, in Hermann, Missouri. The collision occurred when the plaintiff’s parked automobile was struck by the defendant’s truck, which was rolling down an incline because its parking brakes had not been applied. The resulting damage rendered the plaintiff’s car inoperable. Two months later, on February 15, 1972, at the request of defendant, the car was taken to a certain garage for repairs which were to be paid by defendant. This request came eight days after plaintiff had filed suit against the defendant alleging its negligence in causing the collision.

After default judgment against defendant, a motion to set aside judgment was filed. From an adverse ruling defendant appealed and on December 11, 1973, this court, in Rook v. John F. Oliver Tracking Company, 505 S.W.2d 157 (Mo.App.1973), decided that the defendant’s motion to set aside judgment should have been sustained. This court remanded the cause, instructing the lower court to set aside the judgment and give the plaintiff her choice of accepting a new judgment for $2,000 ($1,500 for diminished market value of the car and $500 for loss of its use) or of proceeding anew on an amended petition as to all issues, on which the defendant would be able to plead and defend.

The plaintiff elected to have a new judgment entered for $2,000. This was done in the circuit court on September 18, 1974. The defendant on the same day had tendered and deposited with that court $850.89, stating that this sum, together with the $1,149.61 it had already paid for fixing the car, totalled the $2,000 owed the plaintiff. Believing she was still owed $1,149.61, the plaintiff, sought by execution to recover that sum.

On August 11, 1975, the execution was issued but was returned by the sheriff unsatisfied. On November 5, 1975, the plaintiff filed a motion for judgment against the surety on a bond which had been filed by defendant and the Fidelity and Deposit Company of Maryland in the sum of $10,000 as a delivery bond on a prior execution, apparently in accordance with Rule 76.27. The defendant filed, on September 1, 1976, a motion in opposition to plaintiff’s motion for judgment against surety and sought to compel plaintiff to satisfy the judgment. The defendant contended the $2,000 judgment had already been satisfied by virtue of the $850.39 it had paid in to the circuit court and the $1,149.61 it had paid for the repair of the plaintiff’s car. On December [202]*2026, 1976, the circuit court sustained the defendant’s motion and ordered that the judgment be satisfied. The plaintiff duly appealed the court’s order and it is that appeal that is now before us.

The plaintiff and the defendant agree on several points in this case. It is agreed that this court, in its earlier decision, allowed the plaintiff a judgment for $2,000, that portion of which allowing $500 for loss of use of the car not being in controversy. It is agreed that the defendant paid to the garage $1,149.61 for repairs done to the plaintiff’s car. It is also agreed that the defendant paid the plaintiff $850.39 in damages, $500 for loss of use and $350.39 towards the $1,500 award for damage to the plaintiff’s vehicle. What is not agreed on is whether the $1,149.61 payment to the garage can be credited against the $1,500 award as well, completely satisfying it.

The defendant contends that the only measure of damages allowed for a car damaged in a collision is the difference between the market value of the car immediately before the collision and its market value immediately after the collision and that this was the measure of damages proved at the hearing and represented by the $1,500 award. It also contends that because an injured party may have just one satisfaction for his injuries, the $1,149.61 payment for repairs to the car must be deducted from the $1,500 award for diminished market value as an advance payment under § 490.710 RSMo.Supp.1975. On the other hand, the plaintiff contends that the measure of damages proved at the hearing and represented by the $1,500 award was the difference between the market value of the car immediately before the collision and its market value immediately after the repairs were performed on the car. Since this measure of damages already gave the defendant credit for the repair bill payment, the plaintiff contends § 490.710 does not apply and no further deduction is allowable.

Section 490.710 RSMo.Supp.1975 speaks in absolute terms of deducting any advance payment of damages, made because of possible tort liability, from any final settlement made or judgment entered in favor of an injured party. In reality, however, “the statute merely follows the general law that an injured party may have but one satisfaction for his injuries.” Taylor v. Yellow Cab Company, 548 S.W.2d 528, 534 (Mo.banc 1977). The purpose of the statute, then, is to prevent a double recovery for one loss. It is true that a person whose car was damaged in a collision may not recover both for the difference between the market values of the car immediately before and immediately after the collision and for the cost of repairing the car, as that would constitute a double recovery. Gilwee v. Pabst Brewing Co., 195 Mo.App. 487, 193 S.W. 886, 887[1] (1917). But it would not constitute a double recovery for such a person to recover both for the cost of repairing the car and for the difference between the market values of the car before the collision and after the repairs. See, General Exchange Ins. Corporation v. Young, 206 S.W.2d 683, 691[11] (Mo.App.1947), aff’d 357 Mo. 1099, 212 S.W.2d 396 (1948); Gilwee v. Pabst Brewing Co., supra, 193 S.W. at 887[1],

It is clear that when the plaintiff accepted the defendant’s payment of the repair bill on her behalf, she recovered the cost of repairing her car. If she then sued for the difference between the value of her car before the collision and its value after the collision, § 490.710 would come into play to prevent her from getting a double recovery. But if she sued instead only for the difference between the value of her car before the collision and its value after the repairs, § 490.710 would not be preventing a double recovery and so would not be applicable.

The question, then, is which of these two market value differences did the plaintiff get an award for. The defendant first contends that the only measure of damages allowable in such an action as this is the difference between the market value of the car before the collision and its value after the collision. Although this is generally the proper measure of damages in an automobile collision case in Missouri, it is not the only measure of damages allowable; also [203]*203allowable are the cost of repairs and the difference between the market value of the car before the collision and its value after the repairs. Winter v. Elder, 492 S.W.2d 146, 148[3, 4] (Mo.App.1973); Langdon v. Koch, 393 S.W.2d 66, 69-70[5] (Mo.App.1965); General Exchange Ins. Corporation v. Young, supra at 691[11]; Gilwee v.

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Cite This Page — Counsel Stack

Bluebook (online)
556 S.W.2d 200, 1977 Mo. App. LEXIS 2267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rook-v-john-f-oliver-trucking-co-moctapp-1977.