53 S.E. 362 | N.C. | 1906
This was a civil action for the recovery of damages for the alleged negligent burning by defendant corporation of a building used by plaintiffs, A. F. Johnson Son, for the manufacture of crates, baskets, etc. Plaintiffs set forth in their complaint that "they had accumulated upon said premises valuable forms; tools, fixtures, office supplies, furniture, etc., also large quantities of crates, baskets, etc., already manufactured; large quantities of crates, baskets, etc., in course of manufacture, and large quantities of raw material for the manufacture and completion of other crates and baskets. And plaintiffs further allege that, at said time, they had contracted and (575) agreed to furnish to various persons, firms and corporations, an out put of 75,000 completed crates from their said factory, upon which they would have realized a reasonable profit of $3,500, but for the loss and destruction of the aforesaid property by fire," etc. Defendant not having sufficient knowledge or information to form a belief, denied this allegation. The plaintiffs upon the issue in regard to damages offered to show that they had a contract with the East Carolina Fruit Packing Co., to deliver 75,000 berry crates at a fixed profit of $3,500; that they had accumulated the material to complete this contract, and had the same on hand on 29 November, 1904, when they were burned out; that it was impossible to replace this material in any of the markets of the country, and they lost the year's work; their laborers and servants were, for a long time, idle upon their hands, at heavy expense. This testimony was, upon defendant's objection, excluded. Plaintiffs excepted and assigned as error, upon the issue in regard to damages, the rejection of the proposed testimony, and appealed. after stating the facts. His Honor, we presume, was of the opinion that the anticipated profits to be derived from completing the contract made by plaintiffs with the Fruit Packing Co., for the manufacture and delivery of the crates, *430 were too speculative and conjectural to form the basis of a claim for damages. While this Court has uniformly adhered to the rule in Hadley v.Baxendale, 9 Exch., 341, prescribing the measure of damages recoverable for breach of contracts, we find no decision controverting the proposition, held by other courts and laid down by many text writers, that in actions founded upon a pure tort a different rule prevails. Mr. Sutherland, (576) after discussing many decided cases, says: "The correct doctrine, as we conceive, is that if the act or neglect complained of was wrongful, and the injury sustained resulted in the natural order of cause and effect, the person injured thereby is entitled to recover. There need not be in the mind of the individual whose act or omission has wrought the injury the least contemplation of the probable consequences of his conduct; he is responsible therefor because the result proximately follows his wrongful act or nonaction." 1 Damages, 16. "A tort feasor is liable for all injuries resulting directly from his wrongful act, whether they could or could not have been seen by him. * * * The real question in these cases is, did the wrongful conduct produce the injury complained of, and not whether the party committing the act could have anticipated the result." Hale Damages, 36; 8 Am. Eng. Enc. (2 Ed.), 625.
Sledge v. Reid,
Judge Christiancy, in Allison v. Chandler, 11 Mich, at page 561, says: "It is urged by counsel for the defendant that damages for the loss of profits ought not to be allowed, because they could not have been within the contemplation of the defendant. Whether, as a matter of fact, this is likely to have been true, we do not deem it important to inquire. It is wholly immaterial whether the defendant in committing the trespass actually contemplated this, or any other species of damage, to the plaintiff. It is a consideration which is confined entirely to cases of contracts, when the question is, what was the extent of the obligation in this respect, which both parties (578) understood to be created by the contract. But when a party commits a trespass, he must be held to contemplate all the damages which may legitimately flow from its illegal act."Stevens v. Dudley,
We are thus brought to a consideration of the question whether the proposed testimony was competent to be considered by the jury in assessing plaintiffs' damages. "It was at one time laid down as a general rule that damages could not be recovered for the loss of profits. It was thought that profits were in their nature too uncertain to be considered." Hale Dam., 72. "The rule is subject, however, to the modification that if the profits lost by defendant's tortious conduct, proximately and naturally flow from his act and are sufficiently *432
definite and certain, they may be recovered or at least evidence in respect to them may be heard and considered by the jury in fixing such damages as will compensate plaintiff. Profits which would certainly have been realized, but for the defendant's fault, are recovered; those which are speculative and contingent are not." Ibid. Judge Christiancy, in Allison v.Chandler, supra, says: "But whatever may be the rule in actions upon contract, we think a more liberal rule, in regard to profits lost, should prevail in actions purely of tort (excepting, perhaps, the action of trover). Not that they should be allowed in all cases without distinction; for there are some cases where they might in their nature be too entirely remote, speculative or contingent to form any reliable basis for a probable opinion. * * * But generally, in an action purely of tort, when the amount of profits lost by the injury can be shown with reasonable certainty, we think they are not only admissible in evidence, but that they constitute, thus far, a safe measure of damages." Sutherland, vol. 1, sec. 70, says: "If a regular and established business is wrongfully interrupted, the damage thereto can be shown by proving the usual profits for a reasonable time anterior to the wrong complained of. (579) Schile v. Brokahaus,
In Jackson v. Stanfield,
Willis v. Branch,
In the light of the principles announced in the foregoing authorities, we are of the opinion that the testimony in regard to the contract with the Fruit Packing Co. was competent to be heard by the jury upon the question of damages sustained by plaintiffs, A. F. Johnson Son. It is by no means certain that the jury should fix the damages in that (580) respect at the profits which plaintiff would have made on the manufacture and delivery of the crates, but they may take into consideration the terms of the contract, the position of plaintiffs in regard to its completion, the solvency of the Packing Company and all other competent and relevant testimony casting light upon the value of the contract to plaintiffs at the time of the fire. While in all human affairs there is of necessity an element of uncertainty, the law, which seeks to deal as far as practicable with conditions in a practical way, and as near as may be give compensation for injuries sustained, only demands, as the basis of the claim, reasonable certainty. If plaintiffs had been considering a proposition to sell their factory with its outstanding contracts, it would have been entirely practicable to measure with reasonable certainty its enhanced value by reason of the existence of the contract with the Packing Company. In doing so the cost of the material on hand, the cost of manufacturing and delivering, the contingencies usually attendant upon the incident to the business, the solvency of the Packing Company, etc., would have been considered. The jury having found that plaintiff's factory was destroyed by the negligence of defendant, they are entitled to recover all such damages as naturally and proximately flow from the trespass — the value of the contract in the light of the facts proposed to be shown by the question asked the witness should be considered as coming within the rule. This, of course, excludes any evidence in regard to profits not covered by contracts. They would be speculative. There might be no demand for crates, prices might decline, a short crop of berries might decrease the demand or a large crop enhance it. These and many other contingencies not remote, would enter into the problem, which would render any conclusion unreliable and unsatisfactory. For the rejection of the proposed testimony there must be a new trial. In several of the cases *434 (581) cited in this opinion, the term "injury" is used. The term as used must be understood as synonymous with "damages." The authors are discussing the character of damages for which a party guilty of negligence, resulting in injury, is liable, and not the question of proximate cause. It is only in this view that the word "injury" is to be understood. The jury have, under instructions to which there are no exceptions, found that defendant is guilty of actionable negligence. The exception is pointed only to the exclusion of evidence in regard to damages. The costs should be divided equally between the parties.
New Trial.
Cited: Smith v. Lumber Co.,