126 S.E. 119 (S.C. 1923), 11144, Currie v. Davis
| Judge | COTHRAN, J., did not participate. |
| Parties | CURRIE v. DAVIS, AGENT, ETC. |
| Date | 26 February 1923 |
| Docket Number | 11144. [a1] |
| Court | South Carolina Supreme Court |
| Citation | 130 S.C. 408,126 S.E. 119 |
Page 119
Appeal from Common Pleas Circuit Court of Sumter County; T. J. Mauldin, Judge.
Action by J. M. Currie against Jas. C. Davis, Agent, appointed by the President under the Transportation Act. Judgment for plaintiff, and defendant appeals. Affirmed subject to entry of remittitur otherwise reversed.
Page 120
On August 31, 1919, at Florence, S. C., the plaintiff purchased a ticket entitling him to transportation as a passenger on a line of railroad then in charge of the Director General of Railroads of the United States government, from Florence, S. C., to Mayesville, S.C. He then presented himself at the gate through which passengers were required or invited to pass in order to board trains. The gate was in charge of a gatekeeper, a railroad employee, to whom the plaintiff showed his ticket. The gatekeeper refused him passage through the gateway, and then "shoved" him back, causing him to fall and bruise his arm, in the presence of a "crowd of people." Thereafter the plaintiff made four attempts, at separate times, to get through the gate to his train. Each time he was threatened with physical violence and cursed by the gatekeeper. He then went to the ticket agent, told him of important business plans and arrangements that made it necessary for him to get to Mayesville on the train for which he had bought his ticket. The ticket agent suggested that he try getting through another gate about 75 feet away, but which, as plaintiff claimed, "was not for passengers to go through." He told the ticket agent he did not care to steal through, as he had bought his ticket. He then met Captain Johnson, a conductor for the line of railroad upon which he had taken passage, who upon being apprised of the situation, advised him to try the gateman again. He then went back to the gate, again showed the gateman his ticket, and was again repulsed with rude, threatening, and insulting language. After that he made one or two more attempts to get through [130 S.C. 412] the gate, with the same result. The remarkable story, outlined by the foregoing statement, is the more remarkable in that it is corroborated rather than discredited in essential particulars by the testimony of Conductor Johnson and the ticket agent, defendant's witnesses at the trial. In an action for damages the plaintiff recovered a verdict for $10,000. From judgment thereon, the defendant appeals.
Plaintiff claimed that on account of missing his train in Florence he was prevented from getting certain gin machinery installed and erected in due course, as a result of which he was delayed four days in starting two ginneries, one at Mayesville and the other at Eutawville, and that such delay caused him to sustain a certain pecuniary loss which he was entitled to recover as an element of the damages proximately caused by defendant's misconduct. The defendant's first exception imputes error to the trial judge in permitting the plaintiff to testify over objection "what his average gross earnings were per day after his ginneries at Mayesville and at Eutawville began to operate." The contention is that the testimony was "purely speculative and incompetent, being no measure by which damages could be ascertained for a few days delay in the institution of said ginneries, and before they were established as going concerns." The exception on this point must be sustained. It is not entirely clear from the evidence printed in the record whether the ginneries in question could be classified as established plants, in the sense that they were old gin stands in which new machinery, in whole or in part, was to be installed for the current ginning season, or whether they were essentially new plants which were in process of establishment for the inauguration of what was for the plaintiff a new business enterprise. If the ginneries were of the character of established industrial or manufacturing plants, then the measure of damages for an interruption in operation, or for delay in starting operations for the cotton season, was the rental value, to be determined in accordance [130 S.C. 413] with the rule laid down by this Court in the case of Standard Supply Co. v. Carter & Harris, 81 S.C. 181, 187, 62 S.E. 150, 19 L. R. A. (N. S.) 155, in which case the precise question was elaborately considered and clearly decided. In the case at bar there was apparently no attempt to apply the measure of rental value. In any event, the data supplied by the evidence affords no adequate basis of fact for applying such measure.
Page 121
Hence, since the evidence is susceptible of the inference, which is assumed as a fact by defendant's exception, that the ginneries were not established plants or going concerns, but were, at the time of the alleged delay, new business enterprises, not yet in active operation, the admissibility of the testimony as to subsequent gross earnings must be determined in accordance with that theory of the facts. In such case the correct measure of damages is thus stated by Mr. Justice Woods, who delivered the opinion of the court, in McMeekin v. Southern Railway, 82 S.C. 468, 473, 64 S.E. 413, 415:
"The plaintiff's business had not been launched, and therefore he could not recover profits he expected to make. Tappan & Noble v. Harwood, 2 Speer, 536; Bird v. Tel. Co., 76 S.C. 345, 56 S.E. 973; Standard Supply Co. v. Carter & Harris, 81 S.C. 181. The mill was not erected, and it was impossible to anticipate the conditions which would exist at the time of completion. Indeed, it might be that the mill would never be completed. For these reasons there would be no reasonably certain basis upon which to compute the measure of damages for rental value, as in the case of the stoppage of a completed ginning plant like that in Standard Supply Co. v. Carter & Harris, supra. The true measure of damages, therefore, in this case, is the loss to the business of constructing a mill--not running a mill. The loss to the business of construction was the interest on the money invested in the work of construction, and the wages of the laborers employed for construction, reduced by the earnings which the plaintiff either received or by reasonable [130 S.C. 414] diligence could have received from the employment of such laborers in other work. Saluda Mfg. Co. v. Pennington, 2 Speer, 746."
No adequate consideration, founded upon the evidence, is suggested for not applying that measure of damages to the case at bar. Gross earnings or profits per day after the ginneries started, certainly in the absence of other material facts and circumstances, could afford no reliable or reasonably fair test by which to estimate loss of net profits from a delay of four days in starting the gins. Aside from the fact that profits cannot be ascertained from gross earnings alone, every bale of cotton available for ginning during the four days preceding the opening of the ginneries might actually have been ginned by the plaintiff at the same profit after his gins started. There is no evidence as to local or special conditions tending to establish that as a result of the delay in opening any business was actually diverted to other plants, or that plaintiff's output as a whole for the season was in any wise diminished. The amount of the verdict warrants the inference that the jury accepted the only measure of damage tendered them in that aspect of the case, which was plaintiff's estimate of his loss at $160 in gross profits per day for one plant, and $175 per day for the other, or a total loss of $1,340 for the delay of 4 days in starting the two ginneries. As the testimony objected to furnished a basis for the application of that improper measure of damages, its admission was prejudicially erroneous.
The plaintiff's claim that he was delayed four days in starting his ginneries was based primarily upon the assumption of fact that, if he had reached Mayesville Sunday night on the train he was prevented from boarding, he could have obtained certain papers and checks which would have enabled him to proceed to Eutawville the following morning and take up the bill of lading and secure delivery from the railroad carrier of his gin machinery [130 S.C. 415] which was there awaiting him. The defendant offered the train dispatcher and the train sheets kept by him to prove that the train in question which was due to arrive at Mayesville about 8 p. m., did not reach there until after midnight, too late for the plaintiff to have transacted his business. This evidence was excluded upon the ground that it violated the hearsay rule. Defendant's second exception imputes error to the trial judge in so ruling. The witness, Bellinger, was the official train dispatcher; the train sheets were the original records made by him in the discharge of his official duty in the ordinary course of business, based upon telegraphic reports transmitted to him from the various stations by agents whose duty it was personally to observe the facts and to transmit the reports as to the time of arrival and departure of trains. The point raised has not been expressly decided in this state, and is one as to which there is a conflict of authority in other jurisdictions....
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