222 A.D. 330 | N.Y. App. Div. | 1927
This is an action to recover damages because of injuries received by the plaintiff in an automobile accident. The plaintiff recovered a verdict for $6,000. The only questions raised by the appellant relate to rulings upon questions of evidence in regard to the measure of damage, the court’s charge upon that question, and the amount of the verdict, which is claimed to be excessive.
The plaintiff is a tailor and for thirteen years before the accident he had run a small custom tailor shop. He did the designing, measuring, cutting and the finishing or fine work of sewing and fitting in the sleeves, etc. He carried a small stock of cloth and fittings of the value of from $500 to $1,000. He also carried samples from which his customers selected the cloth which they desired. His gross business the year before the accident amounted to $21,000. He sent out clothes to be made up in part and employed two men who did outside work for him by the piece. He also employed one man in the shop.
As a result of the injury which the plaintiff received, the second and ring fingers of his left hand are practically paralyzed, and he is unable to extend them. He cannot straighten them more than fifty per cent. He has only forty per cent to fifty per cent of the grip in his left hand, and cannot control those fingers. He can no longer do fine work as a tailor. He cannot hold the cloth and fix it into the sleeves. He was permitted to testify what his gross income was for the year previous to the injury and for the year after the accident. He was also permitted to state his average yearly earnings before and after the injury. That testimony was received over the objection and exception of defendant’s counsel, who urged that it was incompetent as it necessarily involved profits derived from the investment of capital and that it was speculative.
It is difficult to see how his damage could be proved in any other way. His income depended upon his taste and skill as a designer and maker of custom-made suits. His individuality and taste as a designer and cutter were elements which entered into the production of his income, as did his skill in fitting in the sleeves and doing the fine work on the suits. He could not hire any one to take his place. He had the work to do because he pleased his customers and when he could not personally do the work his business decreased. He testified that his greatest profit was on the labor on the suits “ because that is me.”
The rule of law applicablé to a situation like this has often been stated and is not in dispute. The trouble comes in attempting to apply the rule to specific cases. In Walsh v. N. Y. C. & H. R. R. R. Co. (204 N. Y. 58, 68) the principle is stated as follows: “ The
In Kronold v. City of New York (186 N. Y. 40) it was held that a man engaged in the sale of embroideries with a small capital investment which was a mere incident or vehicle to the performance of services which were purely personal in their nature could recover for a loss of earnings. The rule is announced by the cases that a plaintiff is not prevented from recovering for loss of earnings simply because he is in business, but he cannot recover profits under the guise of earnings.
The case of Masterton v. Village of Mt. Vernon (58 N. Y. 391) decided that the plaintiff, a dealer in teas, which business required expert knowledge and skill, could not recover the uncertain profits which the plaintiff might have made in that business. It was held that he could describe the business, its extent, and the particular part which he did and then prove the compensation usually paid to persons doing the same work. In that case, however, Judge Grover said: “ Where, in such a case, the plaintiff has received a fixed compensation for his services, or his earnings can be shown with reasonable certainty, the proof is competent.”
In the case of Pill v. Brooklyn Heights R. R. Co. (6 Misc. 267; affd., 148 N. Y. 747) the plaintiff was a custom corset maker who
In Ehrgott v. Mayor, etc. (96 N. Y. 264), the plaintiff was engaged in selling books on a contract with the publishers, and he received a commission on his sales. He was permitted to show what he earned on his contract each year before the accident. It was held that the plaintiff’s income was not from capital invested but solely from personal skill and services, and that while it was speculative, it was the best that could be done and was competent for the consideration of the jury. Judge Earl, in referring to the case of Masterton v. Village of Mt. Vernon (supra), wrote: “ There the profits resulted, both from capital and services, and the services were rendered both by the plaintiff and his partner; and hence it could not be known how much of the profits were due alone to the plaintiff’s skill and services. It was under such circumstances that it was held that the profits depending upon all the contingencies of trade and commerce, of wind and water, were too uncertain as a guide for the jury.” Judge Earl’s discussion in that case is very illiuninating and persuasive. He likens the occupation of the plaintiff to that of a lawyer, physician or dentist, whose earnings are the result of personal skill. Although each has a certain amount of capital investment, yet his income is classified as personal earnings.
The line of demarcation between the cases, as I understand it, is whether the plaintiff belongs to a class where his income depends upon his personal skill, taste or ability in the particular calling, profession or business in which he is engaged, or whether he is engaged in a line of work which could be done by someone else who could be hired to take his place.
The first class of cases is illustrated by the case of Loesberg v. Fraad (119 Misc. 447) where the plaintiff, a dentist, was prevented from carrying on his business because of the negligence of the defendant. There the court said: “ The plaintiffs fall within the class of those whose livelihood depends upon the earning capacity of their brain and muscle. The amount of capital invested in their business is necessarily small and is only an incident to their business.”
The case of Fraser v. City of Buffalo (123 App. Div. 159) arose in this Department. The plaintiff was a tailor carrying a stock of the value of $1,200. He was permitted to show his earnings prior to the accident. That case is quite similar to the one at bar.
The case of Weir v. Union Railway Co. (188 N. Y. 416) illustrates the second class. In that case the plaintiff was usually employed as a boatman, but prior to the accident he had rented a room and conducted a lunch and oyster business. Some of the time ho • employed two or three men. As stated by Judge Williams in the Fraser case: “ It did not require any particular skill or ability to manage the business, and plaintiff had no particular skill or ability in opening oysters or clams, or serving food.” The Court of Appeals held, in the Weir case, that it was improper to show the profits of the business and that the evidence should have been confined to the value of the plaintiff’s individual services.
In Gombert v. N. Y. C. & H. R. R. R. Co. (195 N. Y. 273) the plaintiff was a contractor engaged in building houses and other buildings. The court held in that case that profits entered to such an extent into his income that it was incompetent to show it.
So in the case of Dalmas v. Gordon (210 App. Div. 239) it was held that the evidence of loss of profits of a boarding house conducted by the plaintiff was improperly admitted.
I think the plaintiff’s business falls within the class where one’s income depends upon personal skill. It may be said that there were other tailors of equal skill who could have testified to their earnings, thereby establishing the measure or value of the plaintiff’s earnings. Of course, every one knows that this is not true. There may be lawyers and doctors of equal skill and ability, but because , of the personality of one, or for some other reason that is hard to define, one may have a profitable business and a large income while another, with equal skill and ability, has a small business and
The charge of the trial judge was far from clear, but I think that it fairly conveyed to the jury the idea that it was to award damages for the value of lost services and not for loss of profits, and that it was to arrive at the damages the best it could from the testimony in the case.
It cannot be held that the verdict is excessive. The plaintiff would be better off without the two fingers. They are partially paralyzed and when cold they turn blue.
I advise that the judgment and order be affirmed, with costs.
All concur, except Taylor, J., not voting. Present —■ Hubbs, P. J., Claric, Sears, Taylor and Sawyer, JJ.
Judgment and order affirmed, with costs.