90 Mo. App. 518 | Mo. Ct. App. | 1901
The first assignment of error which requires attention ielates to the measure of damages, the court having instructed the jury to take into consideration, among other elements of damage, any injury which they might find from the evidence was directly caused to plaintiff’s business by the. tortious entry of defendant’s servants into the office and the dispossession of plaintiff.
Much difference of opinion, gradually tending towards reconciliation, has existed as to the right to recover for injury to business and loss of profits both in actions on contracts and those sounding in tort; and as' the question frequently arises, it may be worth the pains to investigate it with some fullness. The damages recoverable depend somewhat on the form of the action; at least.in certain jurisdictions. Less stringency of proof has been sometimes required to establish the damages in cases of tol’t than in those of contract, for reasons which need' not now be enumerated, nor their soundness explored. They have resulted in permitting an injury to business by a loss of' profits, to enter into the damages awarded for a tort to person or property, in jurisdictions where a loss of that kind has been excluded in actions on covenants, express or implied; such as-actions for a breach of a covenant for quiet enjoyment. This distinction is illustrated by the cases of St. John v. The Mayor, 13 How. Pr. 527, and Mack v. Patchin, 42 N. Y. 167; in the first of which, the plaintiff had been deprived of the use-of her business premises by an obstruction placed in front of them by the city, and she was allowed to recover for loss of profits during the continuance of the obstruction, her action being in the nature of trespass; whereas, in Mack v. Patchin,.
The reason given for rejecting this kind of damages is that profits are too remote and speculative, too much the subject of guesswork or conjecture, and not capable of definite proof. And here it is. proper to remark that the rule denying a recovery of uncertain damages, is directed rather against damages which are contingent and insufficiently proven to have resulted from the breach or tort charged; not merely such as are uncertain in amount; for damages are constantly
But it is far from being true that one’s business losses arising from another’s misconduct are always remote or speculative. Loss of custom and profit by the destruction or interruption of a business, is often as precisely provable as any other sort of unliquidated damages, and provable with greater precision than several elements which are constantly taken into account; for instance, the damages for pain and suffering incident to a personal injury. Courts have come to recognize this truth; and the rule to be deduced from most of the later eases is, that when the evidence discloses with reasonable definiteness what profits were lost by an alleged injury, damages may be given to compensate the loss; but if the evidence is so vague, as to leave it wholly conjectural or speculative, whether the plaintiff would have máde a profit, or how much he -would have made, if the defendant had not been derelict, loss of profits should not enter into the award.
The rule is thus stated by Sedgwick, with many citations in support of it: “Where it clearly appears that the defend-^ ant has interrupted an established business from which thei; plaintiff expected to realize profits, the plaintiff should recover compensation for whatever profits he makes it reasona-J bly certain he would have realized. Here, as everywhere, the question is one of fact, whether the profits can be proved with reasonable certainty.” Sedgwick on Damages (8 Ed.), sec. 182.
Another writer says: “The objection usually made to the allowance of damages for the loss of profits, when they are disallowed, is that such damages are remote and uncertain or speculative. They are not remote when the premises were-leased for the particular business, and the action is against the
In the leading case of Allison v. Chandler, 11 Mich. 542, where the defendant, a landlord, wrongfully ejected plaintiff, a tenant, from his premises in which he was conducting a jewelry business, the court held plaintiff was entitled to damages for injury to his business.
So, in White v. Mosley, 8 Pick. 356, where the action was trespass done in breaking down and destroying a'-mill-dam, damages were assessed for the interruption of the use of the mill and the diminution of-profits occasioned thereby. It was objected that such damages could not be allowed; but the court said: “The interruption of the use of the mill and the diminution of plaintiffs’ profits on that account were alleged in the declaration and proved at the trial, and we think this was right. The plaintiffs are entitled to recover for all the damages they suffered by reason of the trespass.”
Lawrence v. Price, 45 Md., 123, was a controversy arising from the obstruction of a race leading to plaintiff’s distillery. It was held plaintiff was entitled to recover all the consequences resulting from the wrongful act of the defendant, including the loss of the use of the distillery during the time of the obstruction. .
In Walter v. Post, 4 Abb. Pr. 382, plaintiff’s place of business, which was a tailor shop, was trespassed on by the defendant in unlawfully repairing a party wall. Though the. proof of injury to the business was somewhat unsatisfactory, the court held it should not have been withdrawn from the consideration of the jury, but they should have been told plaintiff could not recover for the loss in his business without proof'that he had sustained such loss.
Schule v. Brokhahus, 80 N. Y. 614, was an action for trespass strongly resembling the one at bar. Plaintiff was lessee of certain premises in which he carried on the business of manufacture of pictures, lithographs and furniture. Defendant tore down a portion of the,wall between said premises and his own building without right. The court said: “The most serious question presented is that arising upon the exception to the refusal to charge That there is no proof of loss of profits.’ It can not be affirmed that there was no evidence on the subject. It was shown how much less the business was during the months when the injury occurred than during the corresponding months of the preceding year, and the profits upon the business.....Loss of profits consequent upon a tort as well as a breach of contract are allowed, provided they are such as might naturally be expected to follow from the wrongful act, and 'are certain both in their nature and in respect to the cause from which they proceed. Griffin v. Colver, 16 N. Y. 498; Marquart v. La Farge, 5 Duer. 565. The evidence, to say the least, was rather weak and inconclusive, but the question as to the sufficiency of the evidence was
Denison v. Ford, 10 Daly (N. Y.) 412, was where a tenant was evicted by a landlord. The tenant was not allowed to recover for loss of profits, but that action was construed to be, in effect, one for a breach of the covenant for quiet enjoyment, as the eviction consisted only in some of the doors to plaintiff’s premises being closed so that he did not have light enough to carry on his business. It was held the trespass was technical and the only damage was on the covenant for quiet enjoyment.
In Chapman et al. v. Kirby, 49 Ill. 211, the defendant had wrongfully declared a forfeiture of plaintiffs’ lease of certain premises as a planing mill, and had severed a shaft which supplied the mill with power, thus stopping the machinery. Plaintiffs brought an action for damages and the question arose as to their right to recover for losses in business, taking into consideration therewith the amount of business which they had been doing previous to the accident. It was ruled they were entitled to recover for the breaking up of their business and the diversion of their customers to other places. This case considers the difference in the measure of damages in actions on a lease and those in trespass. It says, in reference to the exception for allowing the jury to award compensation for loss of business: “As to the estimate of losses sustained by the breaking up of their established bus
These are all the authorities we deem it necessary-to notice outside this state. The precise question in hand appears not to have been decided here.
In Schlemmer v. North, 32 Mo. 206, which was trespass-by a tenant against his landlord for entering the premises, tearing down the tenant’s buildings and ousting him, it was ruled the plaintiff could only recover the value of the rent of the unexpired term and not also the value of the demolished buildings. While the cause is similar to this one, it is obvious from the opinion, that the measure of damages as declared, was simply because the plaintiff’s total loss was only the remainder of his term, as the building became the property of
Loss of business profits is undistinguishable in principle from loss of individual earnings; and a plaintiff who has sustained personal injury by the negligence of a defendant is compensated for the loss of anticipated professional or other earnings, if it can be shown with reasonable certainty they would have been realized but for his injury. Rosenkranz v. Railway Co., 108 Mo. 9; Griveaud v. Railway Co., 33 Mo. App. 458; Bartley v. Trorlicht, 49 Mo. App. 214. And so if the action is for breach of contract, the profits which would probably .have been realized had the contract been performed, enter into the damages to be awarded. Stewart v. Patton, 65 Mo. App. 21.
We conclude then, that an injury to a business is a legitimate element to consider in establishing the damages the owner suffered by his adversary’s misdoing; and that in every case, the question of whether the jury shall be allowed to assess damages for such injury, depends on the sufficiency of the evidence relied on to prove what loss was due to the defendant’s conduct. If the evidence is so weak and unsatisfactory as to leave the injury to the business, or its extent, wholly conjectural, the jury should not be permitted to consider it as an element of the damages to be awarded; but if the evidence proves with reasonable certainty such injury resulted from the defendant’s wrongful act, and also with reasonable certainty the amount of loss it occasioned, in other words, if there is a basis in the evidence for a finding on the question, the aggrieved party is as much entitled to be made whole on that •score as any other. In the case in hand, the 'defendant’s conduct was so lawless and malicious that on that ground alone, he might properly be held responsible for damages more indefinite than in ordinary instances where elements of malice and oppression are lacking.
The case of Shepard v. Milwaukee Gas Light Co., 15 Wis. 318, was where the defendant had broken its agreement to supply the plaintiff’s store .with gas. Plaintiff was allowed to show the nature and extent of his business, that it could not be conveniently transacted without gas and that defendant’s failure to furnish gas made his store less attractive to customers and diminished his business. This case ably reviews others, in actions both of contract and tort, which hold that profits may not be recovered; and demonstrates, we think, the unsoundness of that rule. Commenting on one (Cincinnati v. Evans, 5 Ohio St. 594) in which it was ruled the plaintiff could not show the profits lost by the defendant’s trespass, the opinion says: “They are material to this purpose only so far as they tend to show how much the plaintiff lost by the interruption. And it is obvious to every mind that he lost the profits he would have made if the interruption had not occurred. How could he prove the Value of the business to him,’ without showing the amount of profits he would have realized according to its ordinary course? How
Applying these principles to the case at bar, we think it was proper to permit the plaintiff to prove the net income of his business before the defendant wrongfully dispossessed him, as a criterion of what he lost by said dispossession. Brown v. Werner, 40 Md. 268; Treat v. Hiles, 81 Wis. 280; Allison v. Chandler, 11 Mich., supra. Defendant objected to the evidence of the extent of plaintiff’s sales of tickets extending back of the Christmas holidays, on the ground of an increased activity of business at that time; on that objection it was mostly confined to the time from the first of January to the eviction. Without reviewing the testimony on the subject, we state that, far from being vague, it was clear, positive and minute as to the gross amount of sales and the expenses, and afforded ample and accurate data for the jury to consider in estimating the injury to plaintiff’s business. No error was committed in the admission of testimony as to the damages sustained, nor in the instruction as to their measure.
This was undoubtedly a case which warranted and even called for an award of punitive damages. The appellant’s conduct was lawless, high-handed, oppressive and in utter disregard of respondent’s rights. Wamsganz v. Wolff, 86 Mo. App. 205.
The judgment is affirmed.