ADAMS et al.
Action to recover for damages to a tractor trailer owned by plaintiff as result of an automobile collision. Motion on behalf of the defendant to strike or dismiss paragraph 6 of the complaint as amended. The Superior Court, in and for Sussex County, Richards, President Judge, held that plaintiff could recover damages based on the difference in value of the tractor immediately before and after the collision and and for loss of use thereof and that a claim for such damages was not subject to a motion to strike.
Motion to strike or dismiss the paragraph denied.
[48 Del. 302] Motion on behalf of the defendant to strike or dismiss paragraph 6 of the complaint as amended.
Everett F. Warrington, Georgetown, for defendant in support of the motion.
Samuel R. Russell (of Tunnell & Tunnell), Georgetown, for plaintiff in opposition to the motion.
Argued before RICHARDS, P. J.
RICHARDS, President Judge.
This action was brought to recover damages which occurred to an International tractor trailer owned by the plaintiff, as a result of a collision on September 17, 1952, between said tractor trailer and an automobile alleged to have been owned and operated by the defendant at the time of said collision.
The plaintiff alleges in paragraph 5 of its complaint that said tractor trailer was damaged to such an extent that it was worth $1,500 less after the collision than it was worth prior to the collision.
By paragraph 6 of the amended complaint, the plaintiff alleges, that as a further result of said collision said tractor trailer was out of use while being repaired for a period of ten weeks and as a natural and proximate consequence of said loss of use, said plaintiff was unable to continue to fulfill an agreement with Lester C. Newton Trucking Company of Bridgeville, Delaware, to lease plaintiff's truck to said company whereby plaintiff failed to realize a profit of $2,000.
Defendant's motion to strike or dismiss said paragraph 6 as amended is based on the ground that it is redundant and that it fails to state a claim upon which relief can be granted pursuant to Rule 12(f) and 12(b)(6), Del.C.Ann.
The defendant contends in support of his motion that it appears from the allegations
of paragraph 5 of the complaint that the plaintiff's theory of damages is based upon the difference in value of the tractor trailer immediately prior to and immediately after the collision, and having relied upon this theory for its measure of damages, plaintiff is not entitled to recover for the loss of use of said tractor trailer.
[48 Del. 303] Defendant contends that two measures of damages are recognized, (1) the reasonable cost of repairs necessary to restore the vehicle to its former condition, and (2) the difference between its market value immediately before and immediately after the injury. It is admitted that if the measure of damages relied upon is the reasonable cost of the repairs necessary to restore the vehicle to its former condition, recovery may also be had for the loss of use; but if the measure of damages relied upon is the difference between the value of the vehicle immediately before the accident and immediately after the accident, it is contended, there can be no recovery for the loss of use. In support of this position, the following New York cases are cited: Gass v. Agate Ice Cream, Inc.,264 N.Y. 141, 190 N.E. 323; Howe v. ...