American Const. Co. v. Caswell

• Decision Date: 15 November 1911
• Citation: 141 S.W. 1013
• Parties: AMERICAN CONST. CO. v. CASWELL et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

141 S.W. 1013

AMERICAN CONST. CO. v. CASWELL et al.^†

Court of Civil Appeals of Texas. Austin.

November 15, 1911.

Rehearing Denied December 20, 1911.

Appeal from District Court, Travis County; George Calhoun, Judge.

Action by Clyde D. Caswell and others against the American Construction Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Baker, Botts, Parker & Garwood, for appellant. Gregory, Batts & Brooks, for appellees.

JENKINS, J.

Appellees brought this suit to recover from appellant damages in the sum of $1,990, alleged to have been sustained by the erection and maintenance of a fence around the site of what is known as the Littlefield Building, being erected by appellant on a lot 69×160 feet at the corner of Congress avenue and Sixth street, in the city of Austin, Tex., and the erection of two temporary wooden buildings in said inclosure. Appellees alleged that by reason of the erection of said structures light and air were shut off from their place of business, rendering the same hot, dark, and uncomfortable, and that travel was diverted from in front of their place of business, whereby their business was greatly decreased, and they lost the profits on the goods which they would otherwise have sold. The jury returned a verdict for appellees for $1,250, and judgment was entered for that amount, from which judgment appellant has duly prosecuted an appeal.

Findings of Fact.

Appellant was a contractor for the erection of a building on the lot described in appellees' petition. By an ordinance of the city of Austin, builders were permitted to use one-third of the street in front of the lot upon which buildings were being erected for the purpose of placing building material thereon, but there was no ordinance allowing a portion of a street to be fenced. On January 6, 1910, Page & Bro. the architects of said building, petitioned the city council to be allowed to fence one-third of Congress avenue in front of said lot and one-third of Sixth street on the side of said lot, such fence to be seven feet in height to be built of 1×10 planks. On January 29, 1910, this petition was indorsed on the back thereof: "Unanimously granted by the Fire Commissioners. [Signed] S. E. Kinney, Acting Recorder." On February 1, 1910, the city council of Austin passed a resolution granting said request. Page & Bro. in this matter were acting for appellant. On February 8th, upon petition of appellant, said city council passed a resolution granting it permission to erect two temporary wooden sheds within said inclosure, to protect its boilers, etc. About February 15, 1910, appellant erected said fence and sheds, as indicated in said petitions, and the same remained up to and including the time this case was tried in the district court of Travis county.

Congress avenue runs north and south, and is 120 feet wide. There is a double track of street railroad on said avenue. Sixth street runs east and west. There is a track of street railroad on said Sixth street. The fence extended the full length of said lot on Sixth street, up Congress avenue the width of said lot, and back to the northwest corner of same. Appellees were in the jewelry, sporting goods (guns, fishing tackle, etc.), and pawnbroking business. Their place of business was on the east side of Congress avenue, four doors north of the Littlefield lot. By reason of said fence persons going south on the east side of said avenue and desiring to continue south on same, or east on Sixth street, were compelled to turn west after passing appellees' place of business to the northwest corner of said fence, and pass along said fence to the southwest corner of same and east on Sixth street, or diagonally across Sixth street to east side of avenue. The passageway between said fence and said street railways was about 12 feet in width. An ordinance of the city of Austin required that vehicles traveling north on the avenue should pass to the east side of the railway track, and those traveling west on Sixth street should pass to the north side of the railway track. By reason of the narrowness of the passage between said fence and railway track, there was some danger to pedestrians in traveling the same. Persons going north on the east side of the avenue, being unable to see through said fence or around the same, could not tell how far north it extended; and persons going either north or south could not, for the same reason, tell whether or not vehicles were likely to turn the corner into said passway. By reason of these facts the south breeze was shut off from plaintiffs place of business, rendering the same uncomfortable, and travel was diverted to a great extent from in front of their said place of business.

Plaintiffs were conducting a well-established business, and their trade fell off from the 1st of March to the trial of this case, September 12-16, 1910, and their losses in profits, which the evidence indicates they otherwise would have made, were equal to the amount of the judgment in their favor. This loss of trade did not arise from trade conditions; the trade in the city of Austin for 1910 being as good as it was in 1909. Nor did it arise from decrease of stock carried by appellees. In fact, the evidence indicates to a reasonable certainty that the decrease of appellees' business, and consequent loss of profits, was due solely to the obstruction of travel, caused by the erection and maintenance of said fence.

Opinion.

The principal issue in this case is as to whether loss of profits occasioned by the erection of said fence is a proper element of damage.

1. Appellant contends that damages on account of loss of profits are not recoverable in any case. The courts of this state hold to the contrary. Railway Co. v. De Groff, 102 Tex. 440, 118 S. W. 134, 21 L. R. A. (N. S.) 749; Railway Co. v. Lackey, 12 Tex. Civ. App. 233, 33 S. W. 768; San Antonio v. Royal (Sup.) 16 S. W. 1101. Railway Co. v. De Groff was a suit to recover damages to the business of a hotel by reason of the noise and obstruction occasioned by railroad tracks and the operation of cars. In Railway Company v. Lackey, damages were allowed for injury to a millinery business, occasioned by stopping cars in front of plaintiff's place of business. In San Antonio v. Royal damages for prospective profits in business were allowed by reason of plaintiff's being unlawfully ejected from a huckster stand. For additional authorities holding that loss of profits, when properly proven, are allowable as an element of damage, see Harvey v. Railroad Co., 90 Ga. 66, 15 S. E. 783; Goebel v. Hough, 26 Minn. 253, 2 N. W. 847; Lawson v. Price, 45 Md. 124; Shafer v. Wilson, 44 Md. 268; White v. Moseley, 8 Pick. (Mass.) 356; Oliver v. Perkins, 92 Mich. 304, 52 N. W. 609; Schiffman v. Peerless, etc., Co., 13 Cal. App. 600, 110 Pac. 460; French v. Connecticut, etc., Co., 145 Mass. 261, 14 N. E. 113; Lambert v. Haskell, 80 Cal. 611, 22 Pac. 327; Klingman v. Racine, etc., Co., 149 Iowa, 634, 128 N. W. 1109; Gagnon v. Sperry & Co., 206 Mass. 547, 92 N. E. 761; Kitchen v. Philbin, 2 Neb. (Unof.) 340, 96 N. W. 487; Burruss v. Hines, 94 Va. 413, 26 S. E. 875; Stetson v. Faxon, 19 Pick. (Mass.) 147, 31 Am. Dec. 123.

2. One reason assigned by appellant why loss of profits cannot be made the basis for damages is that the same are merely conjectural and necessarily uncertain. We do not understand that the courts of this, or of any other state, have held that loss of profits can be recovered as an element of damages, unless the amount of such lost profits be shown by competent evidence with reasonable certainty. In Railway Co. v. De Groff, supra, our Supreme Court, referring to the case of Railway Company v. Hardey, 112 Ga. 604, 37 S. E. 888, 52 L. R. A. 396, said: "The action was to recover damages against a railway company for obstructing the way by which persons usually did and would pass in going to a house on a public street, where plaintiff did business. The complaint was that the obstruction prevented persons who had and would have traded with plaintiff at that place from doing so, and thereby his business was injured. The railroad company contended that such damages were speculative and not the subject of a legal action. In cases where these elements are merely speculative and conjectural, and cannot be ascertained with reasonable certainty, no allowance should be made therefor. This does not mean that the amounts of these elements of damage should necessarily be reduced to an exact calculation before recovery could be had, but there must be sufficient data to enable a jury, with a reasonable degree of certainty and exactness, to ascertain the loss. In Chapman v. Kirby, 49 Ill. 212, it was said that in such cases we cannot expect that the precise extent of damages can be shown by demonstration, but that it is only required that they be ascertained with a reasonable degree of certainty." This is true in all cases of tort, and in many cases where damages are recoverable for breach of contract. Personal injury suits where damages are sought by reason of diminished capacity to earn wages in the future illustrate this character of cases.

3. As another reason why appellees should not be allowed to recover in this case, appellants allege that the injury suffered by them by reason of the obstruction of the street was such as was common to all. Injuries suffered by reason of the unlawful obstruction of a street which are common to the public are not recoverable at the suit of an individual. In such case, "it is not enough that a party has suffered more damages than others. It must be of a different character, special and apart from that which the public in general sustains." Stufflebeam v. Montgomery, 3 Idaho (Hasb.) 20, 26 Pac. 125. This does not mean that the complainant must necessarily be the only sufferer by reason of the wrong complained of. If several persons should fall in a ditch dug across a street and negligently left...