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09/01/87 GEORGE PERSINGER v. ROBERTA LUCAS

Filed: September 1, 1987.

GEORGE PERSINGER, DEFENDANT-APPELLANT,
v.
ROBERTA LUCAS, PLAINTIFF-APPELLEE



APPEAL FROM THE BARTHOLOMEW COUNTY COURT, The Honorable Tim A. Groff, Judge, Cause No. 86-BC-61.

Ratliff, C.j., Robertson, J., concurs, Garrard, P.j., concurs in part and Dissents in part with opinion.

Author: Ratliff

RATLIFF, C.J.

STATEMENT OF THE CASE

George Persinger appeals from the Bartholomew County Court an award of damages in favor of Roberta Lucas in the amount of Three Thousand Five Hundred Fifteen Dollars ($3515). We affirm the judgment but reduce the damages.

FACTS

On November 26, 1985, Roberta Lucas's 1976 Vega, which was being operated by her husband Lee Roy Lucas, was struck from behind by a 1977 Suburban driven by George Persinger. After the collision, the Vega was towed to Ronnie's Body Shop instead of Lucas's home, because Lucas was unable to pay the Thirty-five Dollar ($35) towing bill. On November 27, 1986, Lucas obtained a repair estimate from the body shop which indicated that the vehicle was totaled. However, Lucas was forced to leave the vehicle in storage at Ronnie's Body Shop, because she was unable to pay the towing and storage bill. Thus, storage costs accrued over the duration of the present litigation.

The Lucases did not own another vehicle and out of necessity rented a vehicle from a member of the church they attended. Later, the Lucases rented a vehicle from their landlord. Finally, the Lucases rented a vehicle from a relative. All of the rentals were made on credit and for Twenty Dollars ($20) per day. The Lucases testified that they were unable to rent from a regular car rental agency because of financial inability. The Lucas's only means of financial support was provided by food stamps, A.D.C., and scrapping of aluminum cans.

On December 3, 1985, Lucas filed a complaint for damages. On January 31, 1986, Persinger filed a demand for jury trial which was denied as untimely. On May 22, 1986, a bench trial was held. Final judgment was entered on June 24, 1986, in favor of Lucas. The trial court awarded damages as follows:

"Storage of Defendant's vehicle for a period of 120 days at the rate of four dollars ($4.00) per day; rental of a replacement vehicle for a 120 day period at the rate of twenty dollars ($20.00) per day; towing charges in the sum of thirty-five ($35.00) and reasonable value of Plaintiff's vehicle being in the sum of six hundred dollars ($600.00). Total damages due and owing to the Plaintiff as a result of Defendant's negligence being in the sum of $3,515.00 and judgment shall and does enter in favor of Plaintiff and against Defendant in said amount, plus the costs of this action and statutory postjudgment interest." Persinger appeals this award.

ISSUES

Persinger presents four (4) issues for review, which we restate as follows:

1. Whether the trial court erred in awarding Twenty-Four Hundred Dollars ($2400) in damages for loss of use of the destroyed vehicle by finding that the reasonable time for replacement was One Hundred Twenty (120) days.

2. Whether the trial court erred by finding that the reasonable rental value for loss of use purposes was ...


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