*1 P.2d 802 plaintiffs" inconsistent nothing- is There garnishees which the judgment, such taking Appellant, GOULD, Calvin Plaintiff and plaintiff’s to, and admit is entitled to entitled is also contention that it The MOUNTAIN TELEPHONE STATES reply. So recovery under the additional Util- COMPANY, TELEGRAPH a Public contention. find merit to this ity no Corporation, Respond- Defendant
ent. last
Garnishees’ contention No. 8600. question and there jurisdictional this ais Supreme Court of Utah. recovery precluded fore April 11, 1957. Clearly court without merit. also and" subject matter jurisdiction had no litigation and parties this to s.o
jurisdictional question presented. is here t Ferrell, Utah case of Glenn v. by garnishees
2d P.2d relied on present jurisdictional question,
did similarity if no case. Even jurisdiction
the court failed to obtain reply, issues raised that would preclude pro garnishment the second jurisdiction in the
ceeding. Such lack of
first garnishment have the effect
nullifying proceeding, but would
preclude garnishment. another we con So hearing
clude is entitled to presented by
on merits of issues its
reply garnishment proceed in the second
ings, trial and the case remanded
reversed hear such
trial court with directions to judg merits render
issues their plaintiff.
ment thereon. Costs j.,
McDonough, crockett, c. HENRIOD, JJ., concur
WORTHEN
Plaintiff in the court below sued defend- ant alleging a breach of contract de- fendant list in the classified section of the 1956 directory of Ogden, Utah metropolitan area. Plain- name, tiff’s address, business tele- business phone, residence address and residence tel- ephone were correctly listed pages” alphabetical “white listings, but plaintiff’s name, business busi- address and telephone were not listed at all in ness classified “yellow pages.” section or : Plaintiff alleged damage his sole loss attorney profession $3,000 $5,- past profits, . and claimed prospective profits $5,000 000 loss of *3 (cid:127) punitive damages. The matter was sub jury mitted to the verdict returned a who appellant. Brann, for Ogden, W. Richard plaintiff $1,000 . in for the sum of loss of re- City, for Lake Bagley, Salt Grant H. $1,000 past prospective and spondent. punitive and no trial motion defendant for a new
WORTHEN, trial, set jury aside the verdict and Justice. plaintiff only, damages, awarded nominal Appeal by plaintiff judgment a from set- the sum of in $75. jury a ting aside in the amount of verdict $2,000 and substituting therefor ," appeal Defendant on this concedes its only, against damages defend- nominal liability plaintiff, plain- but states that ant, the amount Plaintiff asks in of $75.00. prove damages failed to substantial tiff and jury verdict of the be reinstated. that the contends further that an award of in $75 contends that there is no evi- Defendant damages clearly of nominal guise was verdict, support jury’s and dence to error. not an award award that an $75.00 agree We damages, asks be defendant’s con that it nominal an given award is not judgment against $75 be. tention and a aside
set . damages of nominal only. award sum of Nominal $1 December, 1955,January, 1956, such as one cent of a trivial sum and Feb- ruary, whose or one dollar awarded to a who
legal right invaded but has been March, 1956, In plaintiff moved his of- compensatory dama prove failed to fice assigned telephone and was num- new to nom ges.1 We hold that one entitled ber. opinion He stated that in his he was may given be damages only inal $75.2 per losing gross month fees rea- $200 son of yellow listed in pages question The sole remaining is whether directory. the trial court in setting erred aside the compensatory damages verdict for Plaintiff testified that his actual cash in entering a for nominal dam- receipts December, 1955, during increased ages only. order to consider 1956, January, 1956, February, question a brief statement of the facts $266.59, $989.85, respective- $300.36 is essential. ly, but that this increase was due to the negligence that he settled a case for a attorney anis practicing in law February, 1956, fee which had $750 Ogden, Utah. He was admitted to the prior been his office to the issuance of 12, July Bar on prac- and has been directory. the 1956 ticing Ogden law in September 25, since Adams, attorney, Glenn Ogden another 1953, except for a from December plaintiff’s testified for that because 15, 1954, 1,May when he was em- yellow pages, name was not in the several ployed adjuster by as a claims Allstate he cases that would otherwise have refer- Company City, Insurance in Salt Lake red to were referred to other during May, Utah. He testified that attorneys However, young instead. these practice gross his income from was about were cases where fee “at most could per gener- month and this increased $200 something.” He testified be $25.00 ally earnings until to- October when these were cases that either he didn’t all this income was talled paucity of to handle because of desire He further testified from “new business.” involved or handle because the fee couldn’t the omission of his name that after representing clients with adverse was telephone directory which dis- new *4 interests. December, gross in- in tributed employees dropped called to where defendant’s business One of from new
come plaintiff as an adverse witness testified only the three months $169.90 it totalled Cal.App.2d 92, McComish, Telephone Chesapeake 22 70 Co. Price v. 2. & Potomac 1. U.S.App.D.C. 206, Clay, 194 982. P.2d F.2d extensively ad- divided its pages gross were into yellow sales “local” and the that na- “transient” and that the business. defendant Plaintiff then intro- vertised was “ask plain- to duced a statement advertisements to the effect of the that ture yellow pages for dropped $14,730.78 ad- tiff’s refer to transient sales to to people vertisements, for various period preceding look there to the same services, supplies, year etc.” De- $16,377.81, these had although been products, page front other also advertised business had increased from the fendant 60% it’s so year. “because yellow pages preceding yellow people use the easy, out of 10 The court held that this evidence was of other looking for thousands pages when not sufficient to show a causal connection employee also Said services.” products or between directory the omission of adver- 37,000 roughly were there testified drop and a in tising sales. The said: vicinity that- Ogden in telephones “ * * * Plaintiff did allege, population telephones served these prove specific nor did it loss of a directory Ogden 100,000. The 1956 about single operation, sale service shows evidence into introduced which upon its bases entire claim the con- attorneys under listed approximately jecture that there were such losses and yellow pages. in the “Lawyers” that the losses would not have occur- testimony had the Upon of dam- red advertisement been foregoing insert- directory. in Defendant con- ed age the rested. support a the evidence cannot “ tends * * * Since the damages, stating compensatory failed to introduce evidence even proved with reason- must be tending gross to show that its sales certainty, any award of dam- and that able would have been increased had the nec- foregoing facts
ages must be published, been advertisement conjec- upon speculation essarily based gross mere that the for a ture. period preceding were excess of gross profits for the dur-
Defendant calls to our attention two ing the advertisement was omit- involving which part cases failure of tel- directory is from the insufficient ephone companies ted list sub- gross show that the decrease in Inc., Shealy’s directories. scribers proximate was the result of the Telephone Telegraph Bell v. Southern publish Co., D.C., F.Supp. 382, 386, defendant’s failure the ad- defendant Their causal relation to directory plaintiff’s vertisement. ad- from its omitted speculative.” purely omission, plaintiff the breach vertising. After *5 192 “ * * * Schwanke, v. Tele Outsiders did Inc. Wisconsin have dif- 31,
phone ficulty Co., 552, 30, Wis. in reaching 199 N.W. 227 the store. This was 1320, plaintiff operated jewel 68 due A.L.R. to some extent to the error in the * * * ry telephone pub telephone company directory. store. The The rec- correctly di ord plaintiff’s any lished in the is barren name in- evidence to dicate rectory, published num a single by also the same loss of rea- sale Plaintiff there son of the telephone ber for another business. error book. The justifica- with for oth evidence harassed calls furnishes no after was tion for a plaintiff’s er such an extent that the tele conclusion business to sales phone company were changed by both numbers. diminished reason of such for the ex error. Plaintiff sued to recover both The amount for awarded this employees’ damages item of pense of answering the tele cannot stand.” phone on calls intended for the other busi It will be noted that both cases profits by for loss caused ness readily are distinguishable from the in difficulty plain in reaching customers had stant case in in both cases telephone company tiff’s store after introduced no any evidence to show causal assigned a new number. had relation profits between loss of and the er for Plaintiff recovered a $40 directory, ror in the whereas in the in spent answering time stant case has shown that he lost profits. The award for for loss of some referral plain matters. Where the evidence was based tiff has shown actual loss of business dur question period were for the sales ing the as a result of defendant’s periods. No preceding less than those contract, breach of he will not be denied introduced to show evidence recovery because the exact amount of dam of de- because of the were lost failure sales age readily cannot be ascertained.3 To plaintiff. list fendant this effect is the rule laid down n court spent upheld for time but re- the $40 that where the fact of substantial award versed loss shown, damage is the court or cannot insufficiency of the evidence grounds damages only award nominal verdict, saying: support the ground the amount of substantial dam- Chesapeake 692; Lee, Inc., & v. Potomac Tom 3. Masterson 26 v. Pacific Tel. & App.D.C. Telephone 1924, 23, Tel., 1936, Co., 272, 683; 55 299 154 Or. 59 P.2d 890; Chesapeake Diamond F. Stein v. State Tele Sommerville v. & Potomac 185, Telephone phone Co., Co., 1919, App.D.C. 3, 4 W.W.Harr. 34 Del. 49 737; 185, 147; Donnelley 146 A. Hiers Southeastern Vail v. F. Reuben H. Corporation, Tel., App. 219, S.E. Tel. S.C. 56 Ohio age has not with reasonable been shown and loss of time caused to a subscriber certainty.4 wrongful company action in cutting off his without service notice against un recovery rule regarded proper should not be a generally certain directed subject for compensatory damages. respect uncertainty cause against prove T0 that one lost a certain number *6 extent, that a rather than to measure or so by company’s dollars the reason of of not party has his contract will who broken might difficult, action very yet, be and liability escape ordinarily permitted be to think, all would say men reasonable dam uncertainty of in amount because of * * * injured thereby.’ he was full' the age resulting, and the Case, “In the Hobart [Cumberland breach of contract damages for extent of Hobart, & Telephone Telegraph Co. v. a not speculation is be a matter of must 252, 35, Am.St.Rep. 42 So. 119 89 Miss. damages.5 refusing all ground for only pecuniary of the the loss 702] Telephone Co. & Potomac Chesapeake plaintiff testified in dollars cents to Carless, supra, telephone the Virginia v. of ‘that, said this: to was plain- discontinued company wrongfully recollection, spent or he $30 upheld an award and the tiff’s service things messengers home.’ to send $600.00, although plaintiff of to other were numerous oc- there But pecuniary in- any proved direct had as to which he testified that he casions 5, 102 S.E. Va. jury. said The court [127 annoyance and inconvenience suffered 570]: deprived by of tele- reason service, phone and he allowed to Chesapeake v.
“In Sommerville recover $150 App.D.C. 258 Teleph. 3), (49 P. Co. * * * said: 147, “ ‘ it is
F.
* * *
The true rule
the sub-
*
*
* *
* *
Supreme
it does
ject
by
But
announced
the
is
Court
“
‘
days,
Michigan
well-reasoned case
these
of
a
reasonable
seem
Chandler,
542,
11 Mich.
indispensable
v.
(Allison
is an
when
* * *
business,
injured party
555).
the
“Shall the
adjunct
every line of
to
inconvenience,
annoyance,
damages (or
to recover no
be allowed
inevitable
Varner,
166,
239; Chesapeake
4
2d
290
& Potomac Tel
4. Hill v.
Utah
P.2d
N.E.2d
Virginia
Carless,
ephone
v.
448.
Co. of
Amalgamated Clothing
943;
569,
Work
A.L.R.
5. Kiser v.
102 S.E.
Va.
Telephone
America,
574, 194
S.E.
Va.
Harrison
v.
ers of
Co.
Owensboro
1291;
Wisdom, Ky.,
Burtenshaw
114 A.L.R.
Bounti
suffered true, single thus has not shown be Certainty, prospective certainty instance of the loss business attained; would be but it * * * breach, any al- caused injustice. are defendant’s Juries prospective profits award for upon probable and in- loss of must lowed to act necessarily upon speculation positive be as based ferential well direct and conjecture. when., pro award for loss of the nattire proof. And spective profits by jury present case, amount certainty proof clearly state of cannot estimated be the result of * * * speculation conjecture. objection no we can see jury all the placing facts before $1,000 by The award of having the case and circumstcuices of past profits, supported although damages, their to show tendency testimony somewhat amount, them probable so as to enable Adams, Glenn appears clearly to us to be *7 intelligible prob- most make the to. proved excessive. Since has not which the nature able estimate of ” prospective that profits, he is entitled to added.) (Emphasis case will admit.1’1
are of opinion damage that awarded question verdict of excessive The must be 'limited to the from of 9, 1955, must the sound discretion 3, 1956, rest within December to March when plaintiff moved his office and judge assigned the trial or with this court if abuse telephone. newa of discretion occurs. opinion testified that in his remains, however, proof The rule was losing per gross month fees profits completely of must be of loss reason of yellow listed in the speculative fact, nor uncertain as to al pages of the directory. We are permissible ex
though as to measure or unable to see how award in excess of tent, present proof and on of state it $560 is warranted the evidence. appears award pro for loss of profits wholly speculative spective is judgment of the trial court is re- prospective profits cannot be allowed. versed so far as it sets aside the verdict speculative were based on the assumption past lost, and affirmed in so far prospective verdict as it sets aside the certainty, a reasonable sufficient that is profits lost. plans our foundation which base accepted'test traditionally and actions. The opinion that the
However, we are of the
if
found
may
of the law
a
is that
be
$1,000
cannot
fact
past
lost
verdict for
pre-
may
it
a
reasonable minds
believe
Therefore the
be sustained.
evi-
ponderance,
weight
$1,000
greater
and anew
past profits
reversed
or
lost is
reasonably
appellant) un-
can
(with
dence.
means that if it
granted
costs to
This
trial
days
probable
date
than
appellant
IS
from the
be
within
believed that
it is more
less
not,
clerk
cer-
with the
opinion files
it will with reasonable
filing
of
occur,
(in
tainty
sum
is
finding
of such
a remittitur
of this court
apply in
accept
justified.1
net verdict
$440)
the test
agrees to
That
sup-
filed, the
will
determining whether
evidence
If
a remittitur
such
$560.
'
port
an award
future
in accordance
judgment well
modified
be
Each
modified,
therewith,
affirmed.
and as
up
damages
justify
finding of
If we
party to meet its own costs.
listing was cor-
error in
to the time the
does,
rected,
opinion correctly
as the main
McDonough,
j.,
wade,
j.,
c.
highly unrealistic to assume
it would be
concur.
day
plaintiff’s busi-
very
that the
next
HENRIOD, J., dissented.
right
what
it
would bounce
back to
ness
failure to list
would have been had the
CROCKETT,
spe-
(concurring
Justice
naturally
It
occurred.
would
name not
cially in favor of allowing future damages).
adjust to what
time to
take some reasonable
I am in accord with
principal
holding
tele-
normally
have been had the
it
opinion
the main
correctly maintained.
phone listing been
However,
should be reinstated.
it strikes
reason,
may
though
involve
it
For
even
my
a discord in
thinking
reject
the future
uncertainty, I
rea-
degree
think a
some
ground
involves
of the situation dictates
sonable view
“speculation
sense,
conjecture.”
In one
future dam-
that at least some
conclusion
practically
course
everything in life in-
just
surely
as
as
was in fact suffered
age
conjecture
volves
No
to the future.
one
caused.
past damages were
will
sure he
alive
ex-
be
next week. Yet
*8
with the
I
in accord
idea ex-
am also
perience is such
do
deem un-
that we
it
opinion,
main
in the
where
pressed
be.
reasonable
assume that
will
damage is shown to have re-
substantial
require
law
not and cannot
absolute
does
certainty.
predict
duty,
If
can
circumstances
breach of a
we
from
sulted
Tucker,
Utah
2d
jured person injury. best Parry, rence Va P. J. Easton Parratt Respond Mortenson, rian Defendants as recompense is approach making such ents. quoted the court opinion No. 8586. Telephone Co. Chesapeake & Potomac Supreme Court of Utah. ob- Carless, can no “We see Virginia v. April 15, 1957. jury all of the jection placing before the having case facts and circumstances * * * damages, any tendency to show in- make the most them to
so to enable as which probable estimate
telligible and admit.” will the case
nature o.f say we me that can does not seem to
It future finding that unsupported substantial
be incurred is transgresses reason.
evidence or it so, we should not disturb
That may feel
jury’s finding though even better. That
that our own jury under our
privilege given to the law, long
system of and so as there .support in the evidence
substantial findings, en- .to base their
which without reason, should be
tirely departing from
permitted to stand. the verdict of the
I would reinstate WORTHEN, indicated
as Justice affirm an award of a reasonable
would also future
sum