United Truck Rental Equipment Leasing, Inc. v. Kleenco Corp.

We hold Defendant-Appellant, Kleenco Corp. (Kleenco), the renter of a truck from Plaintiff-Appellee, United Truck Rental Equipment Leasing, Inc. (United), was liable to United under the terms of a rental contract for the retail market value of the truck and for United’s loss of use of the truck after it was stolen from Kleenco. We also hold that the trial court (court) properly allowed a witness not listed in United’s pre-trial statement to testify in rebuttal.

Accordingly, we affirm the court’s October 15, 1991 judgment (the judgment) except for the court’s award for loss of use damages as to which we remand for an entry of judgment awarding nominal damages only.

I.

Kleenco is in the business of providing commercial cleaning services. United is in the business of renting trucks to the general public. On January 2, 1988, Keith Sugioka (Sugioka), an employee of Kleenco at the time, rented a 1987 one-half ton Toyota pickup truck (the truck) from United for a total of eighteen days with a return date of January 20,1988. 1 Having the authority to do so, Sugioka signed a rental agreement for the truck on behalf of Kleenco (the Agreement).

The truck was stolen while in Kleeneo’s possession after a Kleenco employee left the keys in the ignition of the unattended and unlocked truck. At the time of the theft, the truck was parked facing the street at the front of a row of trucks in an alley next to Kleeneo’s facility.

On January 10, 1989, United brought suit against Kleenco for the loss of the truck. United’s complaint did not specifically refer to contract or bailment law but stated the essential facts referred to above. 2

On February 1, 1989, Kleenco answered the complaint and counterclaimed. 3 On February 21,1989, United answered the counterclaim.

On June 24, 1991, the case proceeded to a non-jury trial. The court dismissed Kleen-co’s counterclaim, awarded judgment against Kleenco for $8,957.23, and filed its combined findings of fact and conclusions of law on October 15, 1991. The decision stated, in *90 pertinent part 4 :

4. [Kleenco’s] counterclaim is hereby dismissed.

5. The court finds that the language contained in the “full responsibility” box contained on [United’s] rental agreement is clear and unambiguous and that by initialing the full responsibility box, [Kleenco] took full responsibility for the loss of [United’s] vehicle including the loss by theft.

6. Accordingly, [Kleenco] is liable to [United] and Judgment shall enter against [Kleenco] as and for the following amounts:

Loss of vehicle, based on the fan- market value of the vehicle identified in this action. $7,500.00

Appraisal fee. $31.20

Loss of vehicle use. $550.00

Subtotal . [$]8,081.20

Attorney’s fees. [$]827.03

Court Costs. [$]30.00

Notary. [$]4.00

Sheriff fees. [$]15.00

Total Judgment. $8,957.23

Judgment was entered accordingly on October 15,1991.

Kleenco filed a motion to alter or amend the judgment (the motion) on October 25, 1991, asserting in its supporting memorandum that (1) United should not recover more than the wholesale value of the stolen truck, (2) United cannot recover “lost volume” damages for loss of the use of the truck, and (3) United’s rental agreement did not provide for recovery of costs associated with efforts to recover on a breach of contract. 5

On December 23, 1991, the court entered its order denying the motion.

Kleenco appealed on January 17, 1992. 6 On appeal, Kleenco does not challenge the court’s dismissal of its counterclaim. Therefore, we affirm the judgment as it relates to Kleeneo’s counterclaim.

We examine the four contentions raised by Kleenco on appeal.

II.

A.

1.

At common law, the rental of a motor vehicle creates a bailment for the mutual benefit of the parties. Davis v. M.L.G. Corp., 712 P.2d 985, 987-88 (Colo.1986); Chabraja v. Avis Rent A Car Sys., Inc., 192 Ill.App.3d 1074, 140 Ill.Dec. 221, 223, 549 N.E.2d 872, 874 (1989); Omni Aviation v. Managers, Inc. Buckley, 97 N.M. 477, 641 P.2d 508, 510 (1982); 14 F. Lewis, Blashfield Automobile Law and Practice § 475.13, at 395 (3rd ed.1969). A bailment is “a delivery of personal property by one person to another in trust for a specific purpose, with an express or implied contract that the property will be returned or accounted for when the specific purpose has been accomplished or when the bailor reclaims the property.” Davis, 712 P.2d at 988; accord Waugh v. University of Hawai'i, 63 Haw. 117, 132, 621 P.2d 957, 958 (1980). Because United’s rental of the truck to Kleenco was a bailment for their mutual benefit, Kleenco, the bailee, was under a duty to “use ordinary care and diligence in the safeguarding of the bailor’s property, and [it was] answerable for loss or injury resulting from failure to exercise such care, or for any loss or injury due to [its] negligence, or ordinary negligence.” M. Bruenger & Co., Inc. v. Dodge City Truck Stop, Inc., 234 Kan. 682, 675 P.2d 864, 868 (1984) (citation, internal quotation marks, and ellipsis points omitted). In that regard, “[t]heft is clearly one of the harms against which a bailee must protect.” Id. 675 P.2d at 869. Therefore, under the rules of bailment, Kleenco bore the risk of loss if it was negligent in its handling of the vehicle. 7 *91 However, the parties are free to enter into a contract to alter their common law duties “provided their agreement does not contravene public policy or violate a statute.” Davis, 712 P.2d at 988. The contract involved here was the Agreement.

2.

The Agreement was United’s standard rental form. It purportedly contained the entire agreement between the parties. 8 The two relevant provisions on the front of the Agreement, the “collision waiver” and “full responsibility” provisions, are arranged in printed boxes.

The collision waiver provision stated the following:

Collision Waiver

By initialing, renter agrees to pay the sum of $_per day or fraction thereof additional and the renter will be responsible only for the first $_ of damage (except cube box) provided vehicle is operated in conformity with rental agreement. Collision waiver does not cover overhead roof damage. Any damage to cube box is not in any way covered by this waiver.

Initial here x_

The “full responsibility” provision located below the collision waiver provision stated the following:

Full Responsibility

By initialing, renter agrees to pay United Truck for all loss or damage to vehicle (regardless of negligence).

Initial here x_

Sugioka did not initial or mark the “collision waiver” provision. Rather, he initialed the “full responsibility” provision as evidenced by the initials “K.S.” on the “initial here” line.

Kleeneo contends the court erred in concluding that the language contained in the “full responsibility” provision in United’s rental agreement is clear and unambiguous and that by initialing the full responsibility provision, Kleeneo took full responsibility for the loss of United’s vehicle, including loss by theft. Instead, Kleeneo argues that the Agreement is ambiguous because (1) the plain and common definition of “collision” does not include theft, (2) “the rest of the Agreement does nothing to elucidate what is meant” by “collision waiver,” and (3) the Agreement does not define “full responsibility” as including theft. Thus, Kleeneo maintains that a “potential renter would ... reasonably understand that neither the ‘collision waiver’ nor the related ‘full responsibility1 box—or any of the rest of the Agreement— covered the subject of theft coverage.”

3.

“[T]he construction and legal effect to be given a contract is a question of law freely reviewable by an appellate court.” Cho Mark Oriental Food, Ltd. v. K & K Int’l, 73 Haw. 509, 519, 836 P.2d 1057, 1063 (1992) (citations omitted). “Collision” means the “[striking together of two objects, one of which may be stationary.” Black’s Law Dictionary 264 (6th ed.1990). A collision waiver clause effectively waives any claims by a vehicle company against the renter for collision damage. See Automobile Leasing & Rental, Inc. v. Thomas, 100 Nev. 261, 679 P.2d 1269, 1271 (1984). On the other hand, “theft” is “[t]he act of stealing.” Black’s Law Dictionary 1477 (6th ed.1990).

*92 We agree that the term “collision” would not include “theft.” However, we do not agree, as Kleenco urges, that the “full responsibility” obligation under the agreement did not render Kleenco liable in the event the truck was stolen while in its possession. For, examining the contract as a whole, we discern no ambiguity in the contract.

B.

1.

A word or phrase within a contract is ambiguous if, examining the word or phrase in the context of the entire contract, the word or phrase is reasonably susceptible to more than one meaning. Stewart v. Brennan, 7 Haw.App. 136, 142-43, 748 P.2d 816, 821 (1988); Maui Land & Pineapple Co., Inc. v. Dillingham Corp., 67 Haw. 4, 11, 674 P.2d 390, 395 (1984); DiTullio v. Hawaiian Ins. & Guar. Co., Ltd., 1 Haw.App. 149, 155, 616 P.2d 221, 226 (1980). In other words, “ ‘ambiguity is found to exist ... only when the contract, taken as a whole, is reasonably subject to differing interpretation.’ ” Sturla, Inc. v. Fireman’s Fund Ins. Co., 67 Haw. 203, 209-10, 684 P.2d 960, 964 (1984) (quoting U.S. Fire Ins. Co. v. Colver, 600 P.2d 1, 3 (Alaska 1979)) (citation and internal quotation marks omitted). So, “ ‘[a]ri agreement should be construed as a whole and its meaning determined from the entire context and not from any particular word, phrase or clause.’ ” Maui Land & Pineapple, 67 Haw. at 11, 674 P.2d at 395 (quoting Ching v. Hawaiian Restaurants, Ltd., 50 Haw. 563, 565, 445 P.2d 370, 372 (1968)) (emphasis added).

2.

In that respect, paragraph three, on the back of the Agreement, states in pertinent part:

Renter is responsible for and will reimburse UNITED TRUCK upon demand for all loss or damage whatsoever (regar[d]less of negligence) to Vehicle and other equipment, but [sic] specified on the reverse side of this Agreement per occurrence, unless Vehicle was used, operated or driven in violation of any provision of this Agreement.

While unartfully drafted, the foregoing clause renders the renter responsible for “all loss or damage whatsoever” to the vehicle, except as “specified” on the front of the Agreement. The “specified” exception to the renter’s liability is not effective, however, if the vehicle was “used, operated or driven in violation of any provision” of the contract.

The only specified exception to the renter’s responsibility is set forth in the “collision waiver” provision. Under that provision, if elected, the renter is “responsible only for the first $_ of damage provided,” if, as reiterated in paragraph three, the “vehicle is operated in conformity with” the contract. 9

The “full responsibility” clause setting forth Kleenco’s responsibility “for all loss or damage” is also reiterated in the paragraph three statement that the renter is responsible for “all loss or damage whatsoever.”

Construing the contract as a whole, the plain meaning of these provisions is that under the Agreement, the renter was responsible for “all loss or damage” except to the extent of the “collision waiver” amount, and in that respect, only if the renter operated the vehicle in conformity with the provisions of the contract.

Therefore, if Kleenco had accepted the collision waiver option and not signed the “full responsibility” box, it would have been responsible for all losses and damages except for damages resulting from a collision (less the amount specified in the collision waiver provision). Because Kleenco did not accept the collision waiver, however, it was liable for all losses and damages including those resulting from a collision.

We believe an ordinary reading of a renter’s “full responsibility” under the Agree *93 ment “for all loss or damage to [the] vehicle” and an undertaking of responsibility “for all loss or damage whatsoever” would broadly encompass any mechanism of loss, including theft. (Emphases added). Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 108, 839 P.2d 10, 24 (1992) (“[I]t is fundamental that terms of a contract should be interpreted according to their plain, ordinary and accepted use in common speech, unless the contract indicates a different meaning.”) (citing SGM Partners v. The Profit Co., 8 Haw. App. 86, 123, 793 P.2d 1189, 1212 (1990)), recon. denied, 74 Haw. 650, 843 P.2d 144 (1992) (citation and internal quotation marks omitted). Accordingly, we hold the court was correct in concluding Kleenco was liable for loss caused by a theft of the vehicle. 10

III.

A.

Kleenco contends that the court erred in awarding United $7,500 because the award was based on the retail market value of the truck rather than “on the wholesale or ‘bulk’ market” value. United purchased the truck at the wholesale price of $6,419.93 plus tax. Consequently, Kleenco reasons, the $7,500 award placed United in a better position than it would have been in had there been no breach of contract. Accordingly, Kleenco does not appear to challenge the fair market value aspect of the award but rather the market, retail or wholesale, used by United’s expert in arriving at his opinion. 11

B.

1.

A trial court’s determination of the appropriate standard for measuring damages is a conclusion of law which is freely renewable by an appellate court. Nani Koolau Co. v. K & M. Const., Inc., 5 Haw.App. 137, 141—42, 681 P.2d 580, 585 (1984).

In that respect, it is “ ‘a well established principle in the law of damages that, when [a party] sustains a loss by breach of a contract, [the party] is entitled to have just compensation commensurate with [the] loss’ and ‘that [the] damages awarded should be in such amount as will actually or as precisely as possible compensate the injured party.’ ” Amfac, Inc., 74 Haw. at 128, 839 P.2d at 32 (1992) (quoting Ferreira v. Honolulu Star-Bulletin, Ltd., 44 Haw. 567, 573-74, 356 P.2d 651, 655, reh’g denied, 44 Haw. 581, 357 P.2d 112 (1960)); see also Richards v. Kailua Auto Mach. Service, 10 Haw.App. 613, 622, 880 P.2d 1233, 1238 (App.1994) (“The general rule in measuring damages is to give a sum of money to the person wronged which as nearly as possible, will restore him or her to the position he or she would be in if the wrong had not been committed.”) (citations and internal quotation marks omitted).

In awarding damages, the court adopted the amount at which Duane Lee (Lee), United’s “expert in the area of vehicle appraisal and vehicle evaluation,” valued the truck. Lee testified that $7,500 is the “actual cash value” 12 of the lost truck and is based *94 on the average dealer estimate of a “like kind vehicle.” Specifically, Lee spoke with three local dealers, Windward Toyota, Kaimuki Toyota, and Toyota City. Lee testified that he gave each dealer such information as the “year, make, model, condition, equipment, [and] mileage,” of the lost vehicle and he asked each dealer for the selling price of such a vehicle on the open market on the date of the loss. The “local market” and the “Kelly bluebook” 13 price of the vehicle were also considered in arriving at his opinion. On cross-examination, Lee stated that his valuation was based upon the retail market value and not wholesale market value of the vehicle. Lee’s valuation then, was based upon the fair market value of the vehicle in the retail market.

2.

“Whether the retail or wholesale price will govern when calculating damages depends on the replacement market available to the injured party.” 4 J. Nates et al., Damages in Tort Actions § 37.01[1][b], at 18 (1994) (hereinafter Damages in Tort). Thus, a consumer, 14 who usually is limited to purchasing an item at retail prices, is entitled to recover the retail market value for the loss of that item. Id. Contrastingly, when a retailer’s 15 stock-in-trade is damaged, the retailer is entitled to recover the wholesale market value of the stock because that value represents the retailer’s actual replacement cost. See e.g. Ocean Elec. Co. v. Hughes Laboratories, Inc., 636 So.2d 112 (Fla.Dist.Ct.App.1994); Chevron Chem. Co. v. Streett Indus., 534 F.Supp. 801 (E.D.Mo.1982); D. Dobbs, Remedies § 5.10, at 377 (1973) (hereinafter Remedies); Damages in Tort, supra § 37.0[1][b], at 19; C. McCormick, Handbook on the Law of Damages § 44 (1935). “The theory underlying this rule is that if the owner of lost or destroyed property is a retailer... the goods may be replaced at their wholesale value and subsequently sold at retail just as the original goods would have sold.” Chevron, 534 F.Supp. at 803. Because a retailer purchases goods at wholesale and then sells the goods at retail, awarding a retailer the retail market value of damaged or lost goods would be tantamount to giving the retailer his or her profits without the retailer having to incur the expense of selling the goods. Remedies, supra § 5.10, at 376; see also Ocean Elec. Co., 636 So.2d at 115; cf. Omura v. American River Investors, 78 Hawaii 416, 418, 894 P.2d 113, 115 (App.1995) (“Damages for lost profits cannot be determined by total gross revenues.”) (citations omitted).

Therefore, the damages award for lost or destroyed property should be based upon the márket value, retail or wholesale, which will actually or as precisely as possible compensate the injured party. See Amfac, Inc., 74 Haw. at 128, 839 P.2d at 32; Damages in Tort, supra § 37.01[1][b], at 18.

3.

Because United was a rental company it was not strictly a consumer or a retailer. In this case, the stolen truck was part of United’s fleet of rental vehicles. Conceivably, United could purchase a replacement either in the retail or the wholesale market. If United made purchases on a regular basis as a typical retailer, then the truck’s value should be based on the retail market value. However, according to the testimony of Martin Yasuda (Yasuda), United’s President, the truck had been one of ten trucks purchased in bulk from one seller, and it would “probably cost [United] too much to buy another one.” Also, according to Victoria Yasuda, United’s bookkeeper (the Bookkeeper), United always purchased its vehicles in bulk to enable it to purchase the vehicles at “wholesale” prices. Thus, it may be fairly inferred that United could only purchase at wholesale prices if it purchased its trucks in bulk. There was no evidence that a single vehicle replacement could be purchased by United at *95 the wholesale price. 16 Hence, the evidence supports the conclusion that unless United was buying in “bulk,” the wholesale market was not available to it. 17

As a result, the market price which would accurately or as precisely as possible compensate United for its stolen truck, under these circumstances, was the retail market price. See Richards, 10 Haw.App. at 623, 880 P.2d at 1238-39 (“All of the different measures for damages to personal property are merely guides to common sense, and the question in each case is ultimately a question of fully compensating the injured party. Thus, the various measures should be adjusted as required to meet the goal of compensation. It follows then that no mechanical rule can be applied with exactitude in the assessment of property damage and each case must rest on its own facts and circumstances as supported by the proof in the record.”) (citations, internal quotation marks, and ellipsis points omitted).

The trial court’s award was consistent with the proof of market value submitted by United and did not, under the evidence, amount to a windfall profit to United. The evidence presented by United was adequate to establish the replacement cost or value of the truck. In this context, the trial court’s acceptance of United’s expert opinion was reasonable. Cf. J.E. Faltin Motor Transportation, Inc. v. Eazor Express, Inc., 273 F.2d 444, 446 (3rd Cir.1959) (“The trailer was completely destroyed by fire. All that remained was a mass of molten metal impossible to repair. It was a 1956 model and its market value at the time of the fire (1957), naturally was subject to dispute. The trial judge, sitting without a jury, heard testimony on this subject. He credited one expert and not others. This is a situation in which the essential responsibility for fact-finding is entrusted to the trial judge. We cannot say here that his conclusion was ‘clearly erroneous.’”) Therefore, we hold that the trial court correctly adopted the retail market value as the appropriate standard for measuring the replacement cost of a single truck to United.

IV.

Kleenco also challenges the trial court’s award of loss of use damages. In its complaint, United had sought damages for “[l]oss of use of vehicle.” In its oral ruling, the trial court “denfied] the request for lost profits” 18 and awarded United $550.00 for “[l]oss of vehicle use,” the $550.00 representing “one month of rental.”

On appeal, Kleenco contends that “[t]he trial court erred in awarding United ‘lost volume’ damages although United failed to present any evidence of the net profits it would have made from one month’s rental.” Kleenco argues that “damages for business lost volume are limited to loss of net profit,” and therefore, a “party seeking lost volume damages must prove what those net profits are.” Athough Kleenco uses the term “lost volume damages,” Kleenco is really arguing the law of lost profits. 19

*96 Lost profits damages and loss of use damages are not synonymous.

Loss of profits [are] measured by the amount of profit that a plaintiff could prove would have been generated had the plaintiff not been deprived of the use of the property, less the amount of profit actually generated during the deprivation. Loss of use, on the other hand, is the loss of an incident of ownership—the right to use.

American Tel. & Tel. Co. v. Connecticut Light & Power Co., 470 F.Supp. 105, 108 (1979).

A.

Because United is seeking loss of use damages related to the time required to replace the property, we are presented with the issue of whether or not loss of use damages are recoverable in a case of total loss of property.

While loss of use damages are normally awarded to a party deprived of a vehicle during the period of repair, traditionally, recovery could not be had for loss of a vehicle’s use during the period required to replace it. Damages in Tort, supra § 37.54[1], at 166—67; McCormick, supra § 124.

The general rule regarding damages occasioned by the total destruction of one’s motor vehicle has long been limited to recovery simply for the vehicle’s value at the time of destruction. The reason for this rule is not clear. It may be based upon the historical limitation contained in an action for trover at common law; or because plaintiff has the presumed ability to enter the marketplace with the sum awarded and purchase another product; or perhaps upon the theory that in recovering the full value of the vehicle as of the date of destruction, the owner has been made whole.

Allanson v. Cummings, 81 A.D.2d 16, 439 N.Y.S.2d 545, 546-47 (1981) (citations and internal quotation marks omitted); see also Annotation, Recovery for Loss Of Use Of Motor Vehicle Damaged or Destroyed, 18 A.L.R.3rd 497 (1968) (hereinafter Annot., Recovery For Loss Of Use, 18 A.L.R.3rd 497). However, a “growing number of state and federal courts, ... have abandoned the traditional approach and have awarded damages for loss of use in cases of total destruction.” Damages in Tort, supra § 37.54[1], at 166-67; Guido v. Hudson Transit Lines, 178 F.2d 740 (3rd Cir.1950); Atlantic Aviation Corp. v. United States, 456 F.Supp. 121 (D.Del.1978); Reynolds v. Bank of America, 53 Cal.2d 49, 345 P.2d 926 (1959); New York Cent. R.R. Co. v. Churchill, 140 Ind.App. 426, 218 N.E.2d 372 (1966); Weishaar v. Canestrale, 241 Md. 676, 217 A.2d 525 (1966); Allanson, 81 A.D.2d 16, 439 N.Y.S.2d 545. 20

The abandonment of the distinction between loss occurring from repairable vehicles and totally destroyed vehicles is based upon the realization “that the economic loss to the owner who is deprived of a vehicle because it has been totally demolished is the same as the loss to the owner who is deprived of a vehicle during the period required for repair.” Damages in Tort, supra § 37.54[1], at 169; see also New York Cent., 218 N.E.2d at 376 (“We fail to see any valid reason for the distinction between repairable and irreparable damage which would justify loss of use for the former and not the latter.... Have not both property owners lost the same thing, i.e., the use of such property?”); Remedies, supra §. 5.11, at 385. We agree with this reasoning and, therefore, adopt the rule *97 that damages for loss of use may be recovered when a vehicle is totally destroyed. Because a vehicle is a complete loss if stolen, a stolen vehicle should be treated in the same way as a completely destroyed vehicle for purposes of loss of use damages.

However, recovery for loss of use damages must be limited to a period of time reasonably necessary for securing a replacement. Nashban Barrel & Container Co. v. G.G. Parsons Trucking Co., 49 Wis.2d 591, 182 N.W.2d 448, 454 (1971); Cecere v. Harquail, 104 A.D.2d 6, 481 N.Y.S.2d 533 (1984); Remedies, supra § 5.11, at 385. Here, United indicated it could not afford to purchase a replacement. But, a plaintiffs recovery should not be premised on his or her actual ability to purchase a replacement. See, e.g., New York Cent., 218 N.E.2d at 377 (holding that a plaintiff who did not replace a destroyed tractor-trailer due to lack of funds and failure to find a suitable replacement could recover for loss of use of the vehicle, limited to a reasonable time); Chesapeake & O. Ry. Co. v. Boren, 202 Ky. 348, 259 S.W. 711 (1924) (holding plaintiff who did not purchase an available replacement because of financial inability, could nonetheless recover for loss of use of a totally destroyed car); Menard v. Prejean, 374 So.2d 1275 (La.Ct.App.1979) (holding that where the owner of a tractor knew immediately after the accident that the tractor was a total loss, damages for loss of use were not recoverable beyond a reasonable time, limited to 30 days, notwithstanding the owner’s financial inability to replace the property for eight months); Holmes v. Raffo, 60 Wash.2d 421, 374 P.2d 536 (1962) (holding that the court could not condone conditioning recovery on one’s financial ability to hire another automobile because plaintiff would be denied compensation for his inconvenience resulting from the wrongful act of the defendant).

The rationale supporting this proposition is that regardless of whether the plaintiff furnishes the funds to hire a substitute vehicle, he or she still suffers an injury while deprived of the vehicle and should be awarded damages for the inconvenience. Annot., Recovery For Loss Of Use, 18 A.L.R.3d 497, 531-32. 21

B.

1.

There are several mutually exclusive means of measuring damages for loss of use. They are: “(1) the rental value or the amount that could have been realized by renting out the property; (2) the reasonable cost of renting a substitute; or (3) the ordinary profits that could have been made from the use of the property.” Damages in Tort, supra at § 37.13[1], 73-74; see also Remedies, supra § 124, at 387-90.

United did not rent a substitute. Therefore, option number two is inapplicable. The third option is usually only used to determine loss of use damages when a rental substitute is not available or when the kind of property damaged is not the type that is normally rented. Southern Crate & Veneer Co. v. McDowell, 163 Ga.App. 153, 293 S.E.2d 541 (1982) (holding that in an action to recover damages to a pulpwooder truck, where there was testimony that pulpwood machinery could not be rented, the jury was properly instructed as to lost profits); Peterson v. Bochar,