W. H. HARWELL, APPELLANT,
v.
LOLA MARIE WILDER, AS ADMINISTRATRIX OF THE ESTATE OF W. E. WILDER, DECEASED, APPELLEE
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W. H. Harwell replevied a boat he had sold to W. E. Wilder and another. The trial court awarded the decedent's estate judgment for the boat's value plus $350 in wrongful replevin damages. The appellate court affirmed the replevin judgment but reversed the damages award, holding that damages for loss of use should be measured by the legal rate of interest on the boat's value rather than an unsupported lump sum.
The judgment for the boat itself is affirmed, but the $350 damages award is reversed because it lacked evidentiary support. In the absence of specific evidence of the value of loss of use in a replevin action, damages may be measured by the legal rate of interest on the value of the property for the period of wrongful possession.
[1] In a replevin action, the burden of proving damages generally rests with the party claiming them.
[2] In the absence of affirmative evidence of the specific value of loss of use in a replevin action, such damages may be measured by the interest on the value of the lost it…
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Join FLexlaw to unlock all legal intelligence“the burden of proving damages is generally upon the person claiming them; and the peculiarities and/or alternative postures ascribable to a replevin action do not require departure from this rule. Nevertheless, given the loss of use of something of value, and attributing such loss to the wrong of another, some damages are presumed”
Establishes that while claimants bear the burden of proof, presumed damages arise from loss of use caused by wrongful conduct.
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Join FLexlaw to unlock all legal intelligenceHarwell sold a boat to Wilder and another party. Approximately three months later, Harwell replevied (repossessed) the boat. The trial court rendered …
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Plaintiff-appellant replevied a boat he had earlier sold to appellee’s decedent and another. Some three months thereafter judgment was rendered in favor of the decedent for the boat, or its value,- and, in addition, for $350.00 in damages for wrongful replevin.
No error has been clearly made to appear on the merits of the replevin action itself; so that part of the judgment is affirmed. However, from the sparse record before us1 it affirmatively appears that there was virtually no evidence relating to damages suffered on account of appellant’s repossession of the boat herein, except the “loss of use” thereof during the pendency of the action. Moreover, there is no evidence that the value of such loss of use in this case is $350. Judgment for this specific amount in damages was therefore error.
Now it is rudimentary, of course, that the burden of proving damages is generally upon the person claiming them; and the peculiarities and/or alternative postures ascribable to a replevin action 2 do not require departure from this rule. Nevertheless, given the loss of use of something of value, and attributing such loss to the wrong of another, some damages are presumed; and in the absence of affirmative evidence of specific value of such loss it is well-settled that in a replevin action the value thereof may be measured by the interest on the value of the thing lost.3 We reaffirm this rule as expeditious and just.
Wherefore, the value of the boat having been properly found in this case to be $1,000, and there being no evidence bearing on a specific value for the loss of use of such boat while in the wrongful possession of appellant nor evidence relating to any other damages, the judgment appealed from is reversed as to the award of damages provided for therein. The cause is remanded for computation of the legal rate of interest on the value of the boat for and during the period of the loss, and, thereafter, for modification of the judgment as to damages accordingly.
Affirmed in part; reversed in part.
HOBSON, Acting C. J., and MANN, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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The Travelers Ins. Co. v. Agric. Delivery Serv., 262 So. 2d 210 (Fla. 2d DCA 1972)…cases involving diminution of the record due to the absence of trial testimony because of no Court reporter at the trial, Short v. Short, Fla.App.1964, 162 So. 2d 538; Lyden v. DePiera, Fla.App.1962, 147 So. 2d 573; Harwell v. Wilder, Fla.App.1971, 247 So. 2d 90, but these cases were in each instance summarily disposed of by observing that such defect could have been remedied by following the course suggested in Downing, Potash, and/or Moyer, thus shedding no additional light on the instant problems here.…
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Foresight Enters., Inc. v. Leisure Time Props., Inc., 466 So. 2d 283 (Fla. 5th DCA 1985)…This case should be reversed for retrial on the issue of damages in accordance with this opinion. . See 17 Fla.Jur.2d Damages § 83. . See, e.g., Ocala Foundry & Mach. Works v. Lester, 49 Fla. 199, 38 So. 51 (1905). .See, e.g., Harwell v. Wilder, 247 So. 2d 90 (Fla. 2d DCA 1971). . However, at this point the dissent does not agree with the majority opinion that a plaintiff owner’s recovery of the damages against a tort-feasor should be reduced by the normal depreciation of the wrongfully taken property w…1 / 2
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City OF Miami v. Brown, 256 So. 2d 78 (Fla. 3d DCA 1971)…, 8 Fla.Supp. 174) ; Downing v. Bird, Fla.App.1962, 145 So. 2d 559, 560; Lyden v. DePiera, Fla.App.1963, 147 So. 2d 573; Short v. Short, Fla.App.1964, 162 So. 2d 538; Bryant v. State, Fla.App. 1967, 204 So. 2d 9, 10; Harwell v. Wilder, Fla.App.1971, 247 So. 2d 90.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Ocala Foundry & Mach. Works v. Lester, 49 Fla. 199 (Fla. 1905)
- Moyer v. Moyer, 114 So. 2d 638 (Fla. 3d DCA 1959)
- Ocala Foundary and Machine Works v. Lester, 49 Fla. 347 (Fla. 1905)
- Fla. Tr. & Banking Co. v. Consol. Title Co., 86 Fla. 317 (Fla. 1923)
- Amorelli v. Cazin, 179 So. 2d 868 (Fla. 2d DCA 1965)
- Lottie Sykes Downing v. Bird, 145 So. 2d 559 (Fla. 3d DCA 1962)
- Cox v. State, 98 So. 915 (Ala. Ct. App. 1924)