
    The Cincinnati Traction Co. v. Feldkamp.
    
      Negligence — Measure of damages — Loss of use of automobile in business determined, how.
    
    The value of the use of an automobile which has been damaged by the negligence of another is the expense of hiring the property which the owner is forced to substitute for it, providing it can be replaced. If there are no cars on the market for hire, the value of its use to the owner in his business at the time of the tort complained of is' the basis for estimating damages, and' the owner’s books, showing the earnings of the car about the time of the tort, are competent evidence of probable earnings during the time used for repairs.
    Damages, 17 C. J. § 184.
    (Decided January 7, 1924.)
    Error : Court of Appeals for Hamilton county.
    
      Mr. John M. McCaslin, for plaintiff in error.
    
      Mr. Edwin G. Becker, for defendant in error.
   Cushing, J.

Arthur Feldkamp brought an action in the Superior Court of Cincinnati against the Cincinnati Traction Company to recover damage for its negligence.

Plaintiff claimed that he owned a Packard Twin Six automobile, used by him in the operation of his taxi cab business; that it was damaged by the negligence of said company; and that he was entitled to recover the reasonable cost of the repairs and for the loss of its use for six weeks.

There was a mistrial of this case, due to the failure to introduce proper evidence, the introduction of erroneous evidence, and the charge of the court.

The only evidence offered of the value of the use was the gross earnings of the car per day when it was so used.

This court held in the case of Mayer v. Cohen, 12 Ohio App., 134, that a person whose automobile is injured by the tort of another is entitled to' recover compensation for the loss of its use during the time necessarily expended in making its repairs. The rule by which the jury are to determine the value of that use is that when a plaintiff is deprived of the use of property valuable for use, and the property is something that can be replaced, his damages are the expenses of hiring the property which he is forced to substitute for it. Weston v. Boston & Me. Rd., 190 Mass., 298.

The Supreme Court of the United States in In re Conqueror, 166 U. S., 110, at 127, says:

“The difficulty is in determining when the vessel has lost profits and the amount thereof. The best evidence of damage suffered by detention is the sum for which vessels of the same size and class can be chartered in the market. Obviously, however, this criterion cannot be often, applied, as it is only in the larger ports that there can be said to be a market price for the use of vessels, particularly if there be any peculiarity in their construction which limits their employment to a single purpose.

“In the absence of such market value, the value of her use to her owner in the business in which she was engaged at the time of the collision is a proper basis for estimating damages for detention, and the books of the owner showing her earnings about the time of her collision are competent evidence of her probable earnings during the time of her detention. The Mayflower, Brown’s Adm., 376; The Transit, 4 Ben. 138; The Emilie, 4 Ben. 235.”

In the case at bar there was no testimony offered as to whether or not there were any cars in the market for hire, and the court erroneously instructed the jury that:

“The value of said time is to be determined by you from the evidence and is to be computed by you upon the basis of the reasonable value of the use of a similar automobile in the city of Cincinnati at or about the time when this collision occurred.”

We refrain from commenting on the testimony as a new trial will be ordered. But the rule, herein stated as to the measure of damage and as to the proper evidence to be offered should have been followed in this case.

The judgment of the Superior Court will be reversed, and the cause remanded for a new trial.

Judgment reversed, and cause remanded.

Buch Walter and Hamilton, JJ., concur.  