Awalt v. Mercer, Fraser Co.

SCHOTTKY, J. Respondent commenced an action against appellant to recover damages for a loss which respondent alleged resulted from the negligent and careless handling of a crane which respondent had rented to appellant. Respondent was awarded judgment in the sum of $1,112.03 and this appeal is from said judgment.

The principal grounds urged by appellant upon this appeal are the insufficiency of the evidence and that the trial court [855]did not apply the proper measure of damages. Before discussing these contentions we shall give a brief summary of evidence as shown by the record.

Respondent was in the business of renting out heavy-duty mechanical equipment. Said business was located in Berkeley, California, and was conducted under the name of “Western Crane Service.” Appellant was a corporation and was engaged in the construction of some large wooden buildings for a third party in Eureka, California. Appellant rented a lifting crane from respondent at the rate of $925 a month. Respondent furnished an operator and oiler for the machine, but they were to be and were paid by appellant. A crane was sent from Berkeley to Eureka and appellant used it in constructing the buildings from the inception of the work on them. It was used to lift heavy trusses, timbers or sections into place.

Around 1 o’clock p. m. on June 4, 1948, while the crane was being used in holding a truss in place while it was secured to the building, a section of the building collapsed and in so doing the crane was tipped over on its side and damaged. The boom was damaged and in an unusable condition, the 4-ton counterweight was knocked loose, the machine’s frame was bent, the cab was damaged and the flywheel housing was broken. Repairs were made to the crane in the shop of appellant and a new boom and flywheel housing were purchased by respondent and sent to Eureka, where they were assembled on the crane. The damaged boom was returned to respondent’s yard in Berkeley. The crane was then used in the completion of the building. The total rental period was from April 27, 1948, to September 25, 1948. The operator then returned the crane to Berkeley where it was used in some work. Further repairs were not made until January, 1949, as respondent stated that he had to wait for the insurance money in order to do the necessary repairs. Respondent testified that the extent of damage to the boom rendered it useless to him and that it could not be used in his business. He stated that booms could be repaired, but that he could not use repaired booms in the rental business. Respondent’s witness, a Mr. Zaft who was in the welding and repair business, testified that the boom could not be repaired at the time due to a lack of manten steel, that he could not repair it because a special jig was needed to make sure the boom was returned to perfect alignment, that as far as he was concerned the only usable items of the damaged boom to repair