NO. 83-379 

IN THE SUPPIME COURT OF THE STATE OF MONTANA 

1984 

LENZ CONSTRUCTION COMPANY, 

a Mont. corp. , 

Plaintiff and Appellant, 

EARL CAMERON, d/b/a CAMERON 

TRUCKING COMPATJY, et a1 . , 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable James M. Salansky, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

E. Eugene Atherton, Kalispell, Montana 

For Respondents: 

Warden, Christiansen, Johnson & Berg, Ka.lispel1, 

Montana 

Murray, Kaufman, Vidal & Gordon, Kalispell, 

Montana 

Submitted on Briefs: October 6, 1983 

Decided: January 19, 1984 

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Filed: ." 2. <, t..,,u 

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Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Plaintiff Lenz Construction Company (Lenz) appeals and 

defendant Earl Cameron (Cameron) cross-appeals from the 

judgment of the Eleventh Judicial District Court, Flathead 

County, awarding Lenz $22,148.96 in damages. We affirm the 

judgment of the District Court. 

The sole issue is whether the evidence is sufficient to 

support the amount of loss-of-use damages awarded by the 

District Court. 

In 1977, Lenz purchased a used 1967 model 720 

Economobile forklift for $8,500. After the purchase, Lenz 

made repairs and improvements to the machine totalling 

$3,549. At the time of purchase, the machine had been used 

approximately 1,600 hours. Lenz used the machine an 

additional 1,000 to 1,500 hours after purchase. 

On November 2, 1979, the forklift was destroyed as a 

result of Cameron's negligence. The District Court granted 

summary judgment on the liability issue and that judgment was 

not appealed. The District Court held a non-jury trial on 

the issue of damages. 

The Court found the forklift was damaged beyond repair 

and had no salvage value. The Court also found the forklift 

had capabilities which gave Lenz some bidding advantage on 

certain construction jobs. The machine also generated some 

rental income. Lenz claims that after the machine was 

destroyed, he generated no rental income from the machine's 

use and was unsuccessful in bidding on construction projects. 

Lenz incurred $5,564 in rental expense. 

At the time of the accident, the particular model of 

forklift was no longer being manufactured. However, used 

units of the same or comparable makes and new comparable 

machines were available. The parties could not agree on 
responsibility for costs of travel to view the machines and 

no settlement was reached. The District Court found that 

Lenz was at least partly responsible for the long delay in 

replacing the machine because of his refusal to accept a 

replacement. 

The District Court found that the market value of the 

forklift at the time of the accident was $17,000 and that 

Lenz had incurred expenses of $170 for towing and $478.96 for 

travel to view possible replacements. These amounts are not 

disputed on appeal. The Court also found that Lenz suffered 

$4,500 damage for loss of use of the forklift. Both parties 

claim this was error. The Court awarded $22,148.96 total 

damages. Lenz appeals and Cameron cross-appeals on the issue 

of loss-of-use damages. 

Lenz contends that the law and evidence require an award 

for loss of use in the amount of $178,292. Lenz contends the 

Court erroneously awarded $4,500 rental expense rather than 

the actual $5,564 expended. Further, Lenz contends the Court 

ignored the proper elements of lost rental income and 

business interruption. Lenz argues the evidence is 

insufficient to support the $4,500 loss-of-use award. We 

disagree. 

Section 27-1-317, MCA states the general measure of 

damages applicable to this case: 

"For the breach of an obligation not arising from 

contract, the measure of damages, except where 

otherwise expressly provided by this code, is the 

amount which will compensate for all detriment 

proximately caused thereby, whether it could have 

been anticipated or not." 

In McPherson v. Kerr (1981), 195 Mont. 454, 636 P.2d 852, we 

restated the principles of compensatory damages: 

"'As for the issue of compensatory damages, the 

question is always a difficult one. In tort 

actions, the wrongdoer is liable, in general, for 

any injury which is the natural and probable 
consequence of the wrong. These may include both 

the direct and indirect, but reasonably probable, 

results of the wrong. Where damage to property is 

concerned, the purpose of awarding damages is to 

return the party injured to the same, or as nearly 

possible the same, condition as he enjoyed before 

the injury to his property. The injured party is 

to be made as nearly whole as possible - but not to 

realize a profit. Compensatory damages are 

designed to compensate the injured party for actual 

loss or in jury - no more, no less. I' McPherson, 

195 Mont. at 459, 636 P.2d at 855, quoting Spackman 

v. Ralph M. Parsons Co. (1966), 147 Mont. 500, 506, 

414 P.2d 918, 921. 

Lenz argues that the District Court should have 

him the cost of renting a comparable machine regardless of 

whether another machine was actually rented. We do not 

disagree with using, as a general measure of loss-of-use 

damages, the reasonable rental value of a comparable machine 

for the period of time necessary for replacement, regardless 

of whether another machine is actually rented. See Colorado 

Kenworth, Inc. v. Archie Meek Transportation Co. (Wyo. 19721, 

However, Lenz contends that the Court should {have 

awarded rental value for the 33 months from destruction of 

the forklift to trial at $1,700 per month, or $56,100. Lenz 

made no showing that he was entitled to an award for loss of 

use beyond the three-month period following destruction of 

the machine. Such loss is not compensable beyond the period 

of time rea.sonably necessary for replacement. McPherson, 195 

Mont. at 460, 636 P.2d at 856. The District Court found that 

a period of 3 months was all that was reasonably necessary 

for replacement and that the delay in replacement was at 

least in part due to Lenzl reluctance to accept a suitable 

replacement. That finding is supported by the record. he 

District Court did not err in refusing to a.ward Lenz $56,100 

rental value. 
Lenz argues the Court should have awarded a minimum of 

$5,564 in actual rental expenses. We disagree. Although 

Lenz incurred actual rental expenses of $5,564, these 

expenses were incurred beginning in September of 1980. The 

three-month replacement period expired in or around March of 

1980. The actual rental expense is not compensable because 

it was beyond the period of time reasonably necessary for 

replacement. McPherson, 195 Mont. at 460, 636 P.2d at 856. 

The District Court did award Lenz the reasonable rental 

value of a comparable machine for the three-month replacement 

period as loss-of-use damages. Cameron argues on 

cross-appeal that the $1,500 per month loss-of-use figure is 

unsupported by the record. The District Court based this 

award on the reasonable monthly rental value of the machine. 

The testimony was that rental value of a comparable new 

machine would have been $1,700 per month. That figure was 

too high for a used machine and was accordingly reduced by 

the District Court. In light of the evidence of the 

capabilities of the destroyed forklift, we cannot say that 

the Court's rental value determination was unreasonable. We 

find no reason to disturb the District Court's $4,500 

loss-of-use award. 

Lenz further claims that destruction of the machine 

resulted in loss of rental income and business interruption 

in the amounts of $15,840 and $156,888 respectively. 

This Court has long held that a judgment for damages 

must be supported by substantial evidence that is not the 

product of mere guess or speculation, although mathematical 

precision is not required. Crener v. Cremer Rodeo Land and 

Livestock Co. (Mont. 1981), 627 P.2d 1199, 1202, 38 St.Rep. 

574, 578. 
Lenz calculated the alleged loss of rental income by 

averaging the yearly rental income ($5,280) and multiplying 

by the number of years between destruction of the machine and 

trial. However, Lenz presented no evidence of actual lost 

rental income. The District Court's refusal to award damages 

for loss of rental income is supported by the record. 

Lenz calculated the alleged loss from business 

interruption by comparing average yearly gross income before 

and after the loss. Lenz contends that the machine gave him 

a bidding advantage without which he was unable to 

successfully bid on construction projects, resulting in a 

loss of $156,888 gross profit over 3 years. The record, 

however, contains ample evidence of other likely causes for 

Lenz' reduction in income and no specific evidence linking 

destruction of the machine to lack of successful bids. Lenz 

agreed at trial that beginning in 1980, the construction 

industry was significantly impacted by the depressed economy 

and that bidding competition for construction contracts 

greatly increased. Lenz presented no evidence of specific 

bids, how loss of the forklift affected his bids, nor by what 

margins his bids were unsuccessful. In fact, the record 

shows Lenz had no work for the machine for at least 3 or 4 

months after the accident. By then, the machine could have 

been replaced. In short, Lenz' claim for business 

interruption was entirely speculative and unproven. The 

District Court did not err in denying Lenz' claim for 

business interruption. 

The judgment of the District Court is affirmed. 
We concur: 

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