29 Palms Van & Storage v. Los Angeles Metropolitan Transit Authority

FILES, J.

This is an action for damages sustained by plaintiff when its furniture moving van was struck by defendant’s electric railway car on July 14, 1959. Liability was admitted and the action was tried by a court sitting without a jury on the damages issue only. The judgment was for $3,600, from which defendant appeals.

Defendant’s contentions here are that the trial court refused to make findings of fact segregating the special from the general damages, and that the evidence is insufficient to support the amount awarded.

The allegation of damages as set forth in the complaint was only that “said van and truck owned by plaintiff was broken, bent, damaged and rendered useless to plaintiff for several months, all to plaintiff’s damage in the sum of $5,000.00, inclusive of damage to said van & truck.”

The pretrial order is more explicit. It recites: “Plaintiff seeks property damages, loss of profits and so forth, as itemized in Exhibits ‘A’ and ‘B’ to written claim of plaintiff for damages alleged to have been filed with defendant company on January 8, 1960.” The written claim itself was not attached to the pretrial order, but the “Exhibits A and B” referred to were received in evidence. They contain a list of some 37 items totaling $3,472.98.

Plaintiff’s claim of damages included loss of profits and a large variety of out-of-pocket expenses, some of which were costs of repair. The fact appears to be, though the record on this is obscure, that plaintiff recovered most of its repair expenses under a $250 deductible insurance policy, and that no claim was made in this action for the amounts covered by that insurance. There was evidence that the original repair work (presumably paid for in part by insurance) did not correct all of the damage. The van later broke down and was sent back to the shop for some additional repairs to the clutch, springs and tailgate, all caused by the July 14, 1959, collision, according to plaintiff’s witnesses. Plaintiff’s total claim for out-of-pocket expenses, amounting to $1,542.32, included the $250 deductible on the original repair, subsequent repairs to the clutch, speedometer, heater, wiring, springs and tailgate, the compensation of truck drivers, executives and clerical employees of plaintiff, telephone tolls, traveling expenses, insurance, taxes, and a full tank of gasoline for the

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