indicates an adoption of the expanding social policy behind 402A. See discussion under comment p to 402A. For these reasons, we believe the Pennsylvania courts will hold that for a substantial change to absolve the manufacturer under 402A the change must have some causal connection with the accident.
In the instant case the plaintiff's evidence showed that the steering mechanism failed within two days of the purchase of this tractor, with scarcely any mileage accumulated since such purchase. While defendant's testimony sought to prove that there was no defect in the steering and that the mishap was caused by improper placement of the fifth wheel which caused the outfit to go out of control this was obviously a jury question and the court is not disposed to interfere with the jury's decision.
Therefore, this court denies defendant's Motions for Judgment Notwithstanding the Verdict and/or Motion for a New Trial and finds that plaintiff has fully met the requisite burden of proof.
The second issue raised by defendant seeking a remittitur or reduction of the judgment is that plaintiff is not entitled to damages for loss of use of the tractor and trailer. Defendant has relied on Dixon v. Priester, 85 Pa. Dist. & Co. R. 109 (1952) and Cowher v. Dornhaffer, 47 Pa. Dist. & Co. R. 2d 190 (1969) as supporting its position that no recovery can be had for the loss of use of a commercial vehicle damaged beyond repair. However, these cases are distinguishable in several particulars.
In the Dixon case, Judge Laub's opinion was to a considerable extent based upon the procedural aspects of the case, the claim for loss of use not having been clearly set forth. Testimony in Dixon disclosed that as a result of collision, plaintiff suffered personal injuries which incapacitated him for three weeks during which time he was unable to drive a truck or conduct his business. Plaintiff's truck, used for commercial purposes, was totally destroyed in the collision. The complaint did not plead loss of earnings but the issue of loss of use was submitted to the jury on the theory that plaintiff could not have secured another piece of equipment nor have operated such equipment had it been secured for him during this three-week period. While observing that the plaintiff ought to recover his damages for loss of earnings if he, in fact, suffered that pecuniary loss, Judge Laub decided that plaintiff had not pleaded it and, therefore could not recover.
The same rationale prevails in Cowher, which cites Dixon as its authority.
The testimony adduced in the case presently before this court for decision discloses a significantly different set of facts. The plaintiff's Ford tractor and trailer were damaged beyond repair. A strike at the Ford Motor Company prevented plaintiff from replacing the tractor immediately. Replacement was required at once so that plaintiff could continue hauling for a shipper. On November 24, 1967, he ordered a Chevrolet tractor and took delivery on January 26, 1968. Testimony indicated that until replacements could be had plaintiff was required, in order to fulfill his commitments, to rent a tractor at $27 per day rental and a semi-trailer at $125 per week rental, both of which the jury found to be fair and reasonable.
Furthermore, the defendant cannot protest that it has been surprised as the loss of use item was specifically claimed in the complaint.
The rule of thumb has long been that the measure of damages for the conversion or destruction of any chattel is the market value thereof at the time and place of conversion or destruction. Where the article destroyed is readily replaceable on the open market, there is ample justification for this convenient rule of thumb. However, difficulty arises "when this convenient rule of thumb is sought to be applied to every case regardless of the circumstances. * * * The general principle which should govern the matter is quite clear. Damages are supposed to compensate the injured person in full for the wrong which has been done him. If his loss is greater than the market value of the chattel at the time of its destruction, an owner should, on principle, be allowed additional items which will adequately compensate him unless some of those claimed items are so speculative as to create danger of injustice to the defendant."
In the instant case, the possibility of speculation was removed by testimony of the actual cost of the rentals as well as the sound reasons which compelled the incurring of such rentals.
This court fails to see any sound reason for a distinction between repairable and unrepairable damage which would justify loss of use for the former and not the latter even though the owner suffers loss because he cannot immediately replace; in both instances the property owners have lost the same thing, that is, the use of such property. Many jurisdictions have recognized such a distinction as fictitious and allowed recovery for the loss of use for the period before replacement can be obtained, especially where such damages are specially pleaded and capable of easy and accurate ascertainment. Reynolds v. Bank of America National Trust & Saving Assn., 53 Cal. 2d 49, 345 P. 2d 926 (1959); Buchanan v. Leonard, Wiebolt & Bartlett, 127 F. Supp. 120 (D.C. Colo. 1954); Wajay Bakery, Inc. v. Carolina Freight Carriers Corp., 177 So. 2d 544 (Fla. App. 1965); New York Central R.R. Co. v. Churchill, 140 Ind. App. 426, 218 N.E. 2d 372 (Ind. App. 1966); Peterson v. Bachar, 193 Kan. 161, 392 P. 2d 853 (1964); Chesapeake & Ohio Rr. Co. v. Boren, 202 Ky. 348, 259 S.W. 711 (1924); Louisville & I.R. Co. v. Schuester, 183 Ky. 504, 209 S.W. 542 (1919); Louisville & N.R. Co. v. Blanton, 304 Ky. 127, 200 S.W. 2d 133 (1947). New York Central R.R. Co. v. Churchill (Ind. App. 1966) 140 Ind. App. 426, 218 N.E. 2d 372.
There can be no doubt that damages for loss of use of a vehicle which is repairable are recoverable in Pennsylvania. Koren v. George, 159 Pa. Super. 182, 48 A. 2d 139 (1946); Holt v. Pariser, 161 Pa. Super. 315, 54 A. 2d 89 (1947). The Pennsylvania courts have also allowed the recovery of damages for loss of use where the chattels involved in a breach of warranty were clearly not "repairable". In Babcock Poultry Farm, Inc. v. Shook,
an action for breach of warranty under the Uniform Commercial Code, seller warranted that the baby chicks sold would reproduce in a certain manner or rate which they failed to do. The plaintiff was allowed damages for the difference between the value of the chicks as warranted and as actually received as well as for the loss of production (or loss of use) of the chicks if they had been as warranted.
Further support for this position is found in Restatement of Torts § 927.
In note (1) comment on clause (b) of this section, it is said:
"On the other hand, as an alternative to interest during the period of detention, the damages can properly include an amount for expenses in procuring a necessary substitute or for the value of the use of a substitute until a replacement of the subject matter can be made as stated in § 931, Comment c. "
Pennsylvania has always been a strong supporter of the Restatements. There have been many misunderstandings in this area, caused it is believed by a misreading of § 928 of the Restatement and failure to consider § 927.
For the reasons set forth above, this court finds that the plaintiff must be permitted to recover the damages for loss of use awarded by the jury in order that the aggrieved party may be fully compensated for his losses resulting from defendant's wrong.