Steffan v. . Meiselman
25 S.E.2d 626
N.C.
1943
Check Treatment
Sea well, J.

In the trial court plaintiff sought recovery of compensatory and punitive damages for injury to his properties and business, which he alleges was caused by the gross nеgligence or willful or malicious conduct of defendant. The defendant was unsuccessful in his motion for nonsuit in the trial court and in his objection to the issue relating to punitive damage, which latter was made upon the ground that there was no evidence justifying submission of such an issue. His exceptions on both points were sustained by the judgment now undеr review, the effect of which would be to dismiss the action in the municipal court when remanded to it.

In both these respects there was error in the ruling of the Superior Court sustaining defendant’s exceptions. Without recapitulating the evidence or emphasizing its significance, it is sufficient to say that, taken in its most favorable light for the plaintiff, it was sufficient to justify the recovery of compensatory damages, and furnished reasonable inferences that the injury of which plaintiff complains was caused by the gross negligence or malicious wrongdoing of the defendant.

In the argument here addressed to the question of nonsuit, and we assume ‍​‌​‌​​​‌‌‌​‌​​‌‌​‌​​​​‌‌​​‌​‌​​​​​‌‌‌​‌​‌‌‌‌‌​​​‍in the hearing below, counsеl for the defendant relied strongly on Leavitt v. Rental Co., 222 N. C., 81, and cited cases, which follows the rule adopted in Fields v. Oghurn, 178 N. C., 407, 100 S. E., 583; Duffy v. Hartsfield, 180 N. C., 151, 104 S. E., 139, and similar cases between *158 landlord and tenant, all of which relate to repairs on the demised premises or conditions thereupon for which it was sought to hold the owner or landlord liable. That situation does not obtain here. Steffan did nоt rent that portion of the building containing the toilet and had no control of it — on the contrary, it was occupied and was under the control of the defendant. Thе gravamen of plaintiff’s case is injury inflicted upon him by the defendant in the negligent or malicious use of his own property and the instrumentalities thereupon under his control. Defendant’s liability, arising from such a source, would not be affected or alleviated by the rental contract in evidence.

The evidence of plaintiff without dоubt entitles him to go to the jury. on the question of damage to his premises and property. The question has been raised whether it is not too speculative for consideration with respect to damages for injury to the business.

There should be no difficulty in concluding that the evidence was sufficient, if believed, to establish the fact of substantial injury to his business, free from any speculation. There was evidence to the effect that the wrongful conduct of the defendant rendered his premises — used as аn eating place — -unsanitary and unclean in such a way as to bring these conditions to the notice of customers. The ceiling bulged and began dropping away оn account of the seepings and drippings from the water closet over the cooking outfit ‍​‌​‌​​​‌‌‌​‌​​‌‌​‌​​​​‌‌​​‌​‌​​​​​‌‌‌​‌​‌‌‌‌‌​​​‍and place where food was kept; and the evidence discloses that the customers found out where the drippings came from and quit coming. Some time in September, when the water came down in quantities, there were аs many as ten regular customers, if the evidence is to be believed, in the restaurant, all of whom walked out and did not come back any more. It is difficult to conceive of a condition more calculated to destroy a business of the kind carried on by plaintiff, and the evidence is reasonably direct that it did so.

But conceding this, it is incumbent on one who seeks to recover for injury to his business to bring to the jury evidence from which, with a reasonable degree of certainty, they may assess the damage without resort to elements that are purely speculative. Juries may not award speculative damages. The plaintiff has attempted to carry the burden by showing a loss of profit in later periods after the trouble began as compared with earlier periods when these unsanitary conditions did not exist, and during which thе evidence discloses that he had built up a good business and was enjoying a profit. In discussing the legal principle involved, we think it of no great consequence whеther it is sought to recover profits, as such, or simply to show the extent of the injury and the damage inflicted.

Ordinarily, at least in matters arising out of contract, loss of expected profits upon interruption or destruction of a business is too remote or *159 speculative to sustain a judgment for their recovery. Machine Co. v. Tobacco Co., 141 N. C., 284, 53 S. E., 885; Lumber Co. v. Power Co., 206 N. C., 515, 114 S. E., 421. But the rule is different where the act that occasioned the loss is malicious, since it is not a question in a tort case whether the consequences were within the legal contemplation of the parties — the question is whether the ‍​‌​‌​​​‌‌‌​‌​​‌‌​‌​​​​‌‌​​‌​‌​​​​​‌‌‌​‌​‌‌‌‌‌​​​‍cоnsequences were the natural and probable result of the wrongful act. Recovery of profits or damages for their loss on this principle has frequently been allowed where they are ascertainable with a fair degree of certainty. DePalmer v. Wein-man, 15 N. Mex., 68, 103 P., 782; Gastner v. Beacon, 114 Conn., 190, 188 A., 214, 81 A. L. R., 97; Jackson v. Stanfield, 137 Ind., 592, 36 N. E., 345; Kentuchy Heating Co. v. Hood, 133 Ky., 383, 118 S. W., 337. This distinction is pointed out clearly in an extensive discussion of the principlе in Johnson v. R. R., 140 N. C., 574, 53 S. E., 362, per Connor, J. There, the rule as laid down by Judge Ghristiancy in Allison v. Chandler, 11 Mich., 561, is approved:

“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). . . . 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.”

The opinion further cites Sutherland, Vol. 1, sec. 70: “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.”

It was held in Jackson v. Stanfield, supra, that evidence is admissible showing anticipated profits, not remote or speculative, not as the measure of damages, but to aid the jury in estimating the extent of the injury sustained. This principle also is approved in Johnson v. R. R., supra.

Moreover, it is to be noted here that the plaintiff has demanded no damages for loss of profit after his businеss was destroyed or closed down — but only damages occurring while it was a going 'concern. Weiss v. Revenue Building and Loan Association, 116 N. J. L., 208, 182 A., 891, 104 A. L. R., 129.

It is our opinion that in a case of this kind it is open to the plaintiff to show а loss of profit upon the issue of injury and damage to his business, if he is able to present evidence ‍​‌​‌​​​‌‌‌​‌​​‌‌​‌​​​​‌‌​​‌​‌​​​​​‌‌‌​‌​‌‌‌‌‌​​​‍from which the jury may be able to draw a reasonably accurаte conclusion, not based on conjecture or speculation, as to the extent of injury inflicted and amount of damage caused.

*160 In this connection plaintiff testified that the first trouble with leaking from .the water closet was about the first day of March, 1941. He was bothered again in April. He testified that the net profit of the business fоr the period ending 1 March, 1941, was $574.74, and he sent Mr. Meiselman. 10% of it. The loss for the quarter ending 30 September, 1941, was $226.08. “The place started going down after the water came in and I could not show any profit any more. The statement for the quarter ending 31 December, 1941, showed a loss of $676.97. That was after the damage. I have never made аny profit in this cafe since this trouble came up. The place started losing money and started going down.” The plaintiff had had an audit made of his business, which was given in evidеnce in corroboration of his statement. We cannot say that the evidence is too remote or too conjectural to sustain a recovery fоr injury to the business as one of the elements of damage. There was error in sustaining the defendant’s exception in this respect.

In the court below, the defendant еxcepted to the instructions to the jury on the question of compensatory damage because under them the jury w£ts permitted to award damages for injury to the businеss which, as we have seen, defendant regarded as too speculative. No objection is made in the brief as to the formulas used in the instructions. While there is some inexactness, and perhaps a want of clarity, in the instructions given, the specific objection of the defendant is without merit.

When a hard fought legal battle takes place between able antagonists in a case of this kind, scars are likely to be left on the terrain. But defendant’s exceptions in his appeal to the Superior Court do not reveal error of such moment as to justify disturbing the result of the trial.

Appellant’s exceptions here are sustained. The cause is remanded to the Superior Court of Guilford County for affirmance of the judgment in the municipal court.

Error and remanded.