Mutch v. Long Beach Improvement Co.

SLOANE, J.

In an action in which the defendant Long Beach Improvement Company was plaintiff and John B. Mutch, the husband of plaintiff in this action, was defendant, the sheriff of the county of Los Angeles levied an attachment upon an automobile as the property of said John B. Mutch. The property was taken on attachment on Feb

[268]

ruary 19, 1916. Subsequently the plaintiff here claimed to be the owner of the automobile, and made demand upon the defendant Long Beach Improvement Company for its possession. She made no third party affidavit of ownership nor demand upon the sheriff, under section 689 of the Code of Civil Procedure, until October 16, 1916, more than eight months after the levy. On November 26, 1916, this action of claim and delivery was brought to recover possession of the automobile and damages for its detention. During the pendency of the .suit the automobile was delivered to the plaintiff, and thereafter judgment was given determining the question of ownership in plaintiff’s favor and awarding her damages for the taking and detention in the sum of $1,500.65 against both defendants.

[1]

The defendants appeal from the judgment on the judgment-roll and a bill of exceptions. The main contention of appellants is that the evidence does not support the findings and judgment in the admeasurement and award'of damages.

The items of damages going to make up the amount of- the judgment consist of the sums of $1,297.50, for the rental value of the ear from February 19, 1916, the date of the attachment, until October 17, 1917, the date of its redelivery to plaintiff—a period of eighty-six and one-half weeks, at fifteen dollars per week—and $203.15 for loss of tools and appliances belonging to the car, cost of cleaning the car after its recovery, and depreciation of its value during its detention. The undisputed testimony fixes the value of the car at the time it was taken on attachment at $400. Plaintiff gets her car back, with $203.15 for its depreciation during its detention, and with over three times its market value for damages from being deprived of its use for about twenty months.

Appellants interpose various objections to the measure of damages adopted by the trial court. Without discussing them in detail, we think it is sufficient to say that one thus deprived of ■ the use of an automobile cannot recover the gross rental value of a fully equipped and maintained car, free from all expense of maintenance, repairs, and natural wear and tear, such as a rented car would naturally be subject to. It must be apparent at once that there is something wrong with a scale of damages that allows three times as