Molly Pitcher Canning Co. ("Molly Pitcher”) brought suit against Southern Railway Co. ("Southern”) and Central of Georgia Railway Co. ("Central”) seeking the recovery of damages resulting from a collision between Central’s train and Molly Pitcher’s plant and equipment. At the close of the plaintiffs evidence, the trial court directed a verdict for Southern. From a favorable jury verdict and the entry of judgment thereon, Molly Pitcher appeals. In a cross appeal, Central appeals from the denial of its motions for directed verdict and judgment nov. Held:
1. After a jury’s verdict is approved by the trial court, ". . .the evidence must be construed so as to uphold the verdict even where there are discrepancies. [Cits.]”
Smith v. Hornbuckle,
"Since the use by Licensee of property of Company hereunder may create fire or other risks which would not accrue except for such use, and Company would not permit such use except upon the condition that it shall be protected against such risks, Licensee covenants hereby (if a corporation, with warranty of its authority so to do) to hold Company or any other corporation controlling, controlled by or under common control with Company harmless from death, personal injury or property damage accruing or sustained from any act, negligence or default of Licensee, or agents or employees of Licensee, in or in connection with the exercise of the privileges hereby granted, or which may be attributable thereto, or to the presence of any property of Licensee upon said premises of Company including specifically damage to such property from railroad operations, and whether or not negligence of Company or any other corporation controlling, controlled by or under common control with Company, its agents or employees, may have contributed to such injury or damage, except that Licensee shall not be held *7 responsible for any loss of life, personal injury or damage to cars or property of Company, accruing from Company’s negligence, without fault of Licensee, its agents or employees.”
The lease agreement provided:
"Railroad shall have no liability for and Industry agrees to indemnify Railroad against the consequences of any loss of or damage to said cars and their contents placed on said leased track by or for account of Industry, or any loss of life, personal injury or property loss or damages suffered by reason of any act, negligence or default of Industry, its agents or employees, in or about or in connection with the use of said leased track and premises, or which may be attributable thereto, or to the presence of said cars or their contents on said leased track, except loss, injury or damage arising from the sole negligence of Railroad, its servants or employees.”
The only damages sought by Molly Pitcher are those resulting from the destruction of its property, and the subsequent loss of business profits. The parties have stipulated that the collision which precipitated this litigation did not occur on property which was the subject of either the lease agreement or the license agreement.
2. Central’s cross appeal is predicated solely on the effect of the indemnity provisions quoted above. Central argues that these provisions required Molly Pitcher to indemnify Central against all damages sought by Molly Pitcher in its suit against Central, or, alternatively stated, that the indemnification provisions constituted a complete defense to Molly Pitcher’s claims.
(a) Preliminarily, we note the stipulation by the parties that the collision which is the subject matter of this litigation did not occur on property covered by either of the agreements in which the indemnity provisions are contained. In this regard, we are cognizant of the holding of the Supreme Court of Georgia in
Southern R. Co. v. Ins. Co. of N. A.,
Of determinative import is the scope of the indemnity provisions, which, manifested in the form of written contracts, is a question of law for the court.
Interstate Life
&c.
Co. v. Brown,
Examining the indemnification covenants in light of these rules, the
lease
agreement plainly exempts Molly Pitcher from liability for indemnification for damages such as those here at issue arising
solely
as a result of Central’s negligence. The
licensing
agreement is somewhat less clear in its meaning, but the relevant portions provide that Molly Pitcher shall indemnify Central against damages sustained as a result of ".. .any act, negligence or default
of Licensee
[Molly Pitcher] . .. and whether or not negligence of Company [Central]... may have
contributed
to such damage. . .” (Emphasis supplied.) A careful reading of the indemnification provisions contained in the licensing agreement thus reveals the absence of the express and unequivocal language that is a condition precedent to the indemnification of an indemnitee against his sole negligence.
Binswanger &c. Co. v. Beers Const. Co.,
supra;
Scarboro Enterprises v. Hirsh,
(b) Questions of negligence and proximate cause are for the jury.
Holcomb v. Ideal Concrete Products,
3. Molly Pitcher’s enumerated errors 3, 4, 5, and 6. relate to the trial court’s refusal to admit into evidence a letter, certain pleadings, and other evidence to the effect that, immediately following the collision, Molly Pitcher notified Central of the incident and demanded restitution for the cost of the damaged equipment and building. Pursuant to Code Ann. § 81A-112 (8), the trial court granted Central’s motion to strike such portions of Molly Pitcher’s pleadings as related to Molly Pitcher’s notice and demand.
Molly Pitcher argues that the above-described pleadings and evidence were relevant to illustrate Molly Pitcher’s effort to mitigate damages, within the meaning *10 of Code Ann. § 105-2014. However, the trial court did not charge the jury as to mitigation of damages; consequently, the trial court’s refusal to admit this evidence for the purpose of showing Molly Pitcher’s effort to mitigate damages could not have been harmful. Furthermore, Molly Pitcher cites no authority, and we are aware of none, in support of the proposition that a plaintiffs demand for restitution from an alleged tortfeasor constitutes a legally sufficient attempt to mitigate damages within the meaning of Code Ann § 105-2014. The trial court did not err in refusing to admit the pleadings and evidence pertaining to Molly Pitcher’s notice and demand to Central, and enumerated errors 3,4, 5, and 6 are without merit.
4. Enumerated errors 7, 8, 9, 10, 11, 12, 13, and 14, relate to the exclusion of evidence regarding the alleged loss of profits to the existing tomato and freestone peach canning operation and further, the loss of profits to an incipient venture, a "cling” peach canning operation. In addition, Molly Pitcher argues that the trial court erroneously excluded evidence purporting to establish, as a measure of damages, "the destruction of a business as a going concern.”
The general rule as to the recoverability of lost profits as an item of damages is that the expected profits of a commercial venture "are not recoverable as they are too speculative, remote, and uncertain.
Ga. Grain Growers Assn. Inc. v. Craven,
As with most rules, however, there is an exception to that stated above. This court has held: "The rule against the recovery of vague, speculative, or uncertain damages relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages. Mere difficulty in fixing their exact amount, where proximately flowing from the alleged injury, does not constitute a legal obstacle in the way of their allowance, when the amount of the recovery comes within that authorized with reasonable certainty by the legal evidence submitted.”
Ayers v. John B. Daniel Co.,
The rule applicable to this case was stated in Jacksonville Blow Pipe Co. v. Trammell Hardwood Flooring Co., supra, p. 719 (1): "[W]here . .
.in an established business with clearly defined business experience as to profit and loss . . .
[anticipated profits] may, if clearly and fairly shown, be considered in estimating the extent of the injury done.” (Emphasis supplied.) The proposed cling peach canning operation was, at the time of the collision, in its incipiency, by definition a newly-begun enterprise. In the circumstances presented here, there plainly exists no basis upon which a reasonably accurate computation of lost profits might be made, as required by the above-cited cases. See Eastern Federal Corp. v. Avco-Embassy Pictures, 326 FSupp. 1280 (N.D. Ga. 1970), modified 331 FSupp. 1253 (N.D. Ga.
*12
1971);
The Hip Pocket v. Levi Strauss & Co.,
As to existing canning operations, the record plainly established, without contradiction, that, in the five years preceding the collision, Molly Pitcher’s losses had exceeded profits. Additional evidence revealed serious capital shortages and depleted borrowing strength in the face of administrative action by the State Water Quality Control Board requiring immediately compliance with applicable pollution control regulations, at an estimated cost in excess of $500,000. Shortly thereafter, an unknown agency threw the switch from Central’s middle track diverting it to the tank track resulting in the collision which precipitated this litigation. Under the authorities cited above, the evidence presented was insufficient to authorize a reasonably accurate computation of anticipated profits from the existing operation; on the contrary, there appeared, from the evidence, the greater probability of continued and aggravated losses. As stated in
Radio of Ga. v. Little,
A diligent examination of Georgia law reveals no authority for the recovery of damages resulting from "The destruction of a business as a going concern.’’The authority most heavily stressed by Molly Pitcher, Jacksonville Blow Pipe Co. v. Trammell Hardwood Flooring Co., supra, is inapposite and stands only for the proposition propounded above, i.e., that anticipated profits may be recovered where based upon an established history of profit and loss. The Blow Pipe case is otherwise devoid of reference to the measure of damages sought by Molly Pitcher. Other cases relied upon by Molly Pitcher as authority for the recovery of damages resulting from "the destruction of a business as a going concern,” e.g.,
Brunswick &c. R. Co. v. Hardey & Co.,
In
City of Dublin v. Ogburn,
Based on the foregoing, the trial court did not err in excluding evidence of anticipated profits, in the absence of an evidentiary basis upon which an accurate computation of such profits could be made. Enumerated errors 7-14 are without merit.
5. Molly Pitcher contends, in enumerated error no. 21, that the trial court erred in directing a verdict in favor of Southern. The evidence showed that Central, at the time of the collision, was a wholly-owned subsidiary of Southern and that certain employees of Central received wages drawn on pay checks bearing the following:
*14 "Southern Railway System Southern Railway Company Agent for Central of Georgia Railroad Company”
"No hard and fast rule can be laid down, but it seems clear that so long as the law authorizes the formation of subservient corporations, the law would defeat its own purpose by disregarding its own creature merely because a parent corporation, or other sole owner, controls the subsidiary,... and uses it and controls it to promote his or its ends. This principle has been stated many times. [Cits.]”
Condenser Service &c. Co. v. Brunswick Port Authority,
The evidence presented at trial totally failed to authorize the jury to disregard Central’s corporate entity and thereby impose liability upon Southern for the acts of Central. Therefore, the trial court did not err in directing a verdict in favor of Southern, or in denying Molly Pitcher’s amended motion for new trial based on this ground. Enumeration of error no. 21 is without merit.
6. The trial court limited the jury, in computing damages, to the consideration of damage to certain equipment and the wall of Molly Pitcher’s plant; the jury’s determination as to these damages was within the range of evidence and was not so inadequate as to justify the inference of gross mistake or undue bias.
See Fargason v. Pervis,
7. The evidence did not authorize the computation of anticipated or lost profits. As indicated in Division 4 of this opinion, the law does not provide for the recovery of damages resulting from "the destruction of a business as a going concern.” The trial court therefore properly excluded from the jury’s consideration Molly Pitcher’s
*15
claim for these elements of damage.
Smith v. A.A. Wood & Son Co.,
8. The measure of damages to personal property is the market value of the property before and sifter the damage to such property.
Harper Warehouse v. Henry Chanin Corp.,
9. For the reasons set forth above, the trial court erred in overruling Molly Pitcher’s motion for new trial. Other enumerations of error need not now be considered.
Judgment reversed on the main appeal and affirmed on the cross appeal.