Atlanta Gas Light Co. v. Newman, 34501
| Decision Date | 05 May 1953 |
| Docket Number | No. 34501,No. 1,34501,1 |
| Citation | 76 S.E.2d 536,88 Ga.App. 252 |
| Parties | ATLANTA GAS LIGHT CO. v. NEWMAN |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1, 2. The petition, as against a general demurrer, alleges a cause of action for damages in lost profits resulting from the defendant's breach of its contract to furnish the plaintiff gas.
3. The plaintiff cannot recover the expenses of operating his business in earning net profits and also recover damages for lost net profits.
4. The plaintiff does not sufficiently allege, as against a special demurrer, facts showing how the lost profits alleged were computed.
5. This court cannot take judicial notice of the rules and regulations of the Public Service Commission.
Lewis A. Newman, trading as L. A. Newman Company, sued Atlanta Gas Light Company for damages allegedly due to the acts of the defendant in interrupting gas service to the plaintiff. The plaintiff operated laundries at three locations in Augusta, Georgia, and had a contract with the defendant for the defendant to furnish gas with which to operate the laundries. On the evening of December 16, 1951, the defendant's agents and employees were in the process of cleaning filters at the defendant's generating plant when an explosion occurred at the plant, such explosion being due to the employees' negligence in cleaning the filters. As a result of the explosion the gas service to the plaintiff was interrupted at his three laundries for approximately two, three, and four days respectively, and the plaintiff was unable to operate his steam pressers and clothes dryers at his laundries. The plaintiff prays for damages for loss of profits and other damages. Renewed general and special demurrers to the amended petition were overruled and the defendant excepts.
Fulcher, Fulcher & Hagler, Augusta, and Moise, Post & Gardner, Atlanta, for plaintiff in error.
Heard Robertson and Eugene T. Gilbert, Jr., Augusta, for defendant in error.
1. The petition, properly construed, alleged a breach of a contract to furnish gas to the plaintiff. We recognize that in some contracts duties arise between the parties the violation of which would constitute a tort. However, such duties do not arise in every contract. Manley v. Exposition Cotton Mills, 47 Ga.App. 496(1), 170 S.E. 711; Milledgeville Water Co. v. Fowler, 129 Ga. 111, 58 S.E. 643; 38 Am.Jur., Negligence, 661, § 20; 65 C.J.S., Negligence, § 4b(3), p. 344. 'Where the breach complained of is simply the neglect of a duty such as is expressly provided for by the contract itself, the action will be construed and treated as one brought ex contractu.' Fain v. Wilkerson, 22 Ga.App. 193, 194(2), 95 S.E. 752; Howard v. Central of Georgia R. Co., 9 Ga.App. 617, 71 S.E. 1017. The duty of the defendant to furnish the plaintiff with gas arose solely through their contract, Atlanta Gas Light Co. v. Jennings, 86 Ga.App. 868, 72 S.E.2d 735; and the remedy of the plaintiff for a breach of that duty, even though the breach is occasioned by the defendant's negligence, is in contract and not in tort. Louisville & Nashville R. Co. v. Spinks, 104 Ga. 692, 30 S.E. 968; Milledgeville Water Co. v. Fowler, supra; Howard v. Central of Georgia R. Co., supra; Fain v. Wilkerson, supra; Perry v. Griffin, 39 Ga.App. 170, 171(2), 146 S.E. 567; Monroe v. Guess, 41 Ga.App. 697, 698(1), 154 S.E. 301; Manley v. Exposition Cotton Mills, supra; Hardy v. Leonard, 82 Ga.App. 764, 62 S.E.2d 437; 1 Am.Jur., Actions, 443, § 51; 1 C.J.S., Actions, § 49 c., p. 1112.
2. The defendant contends that the general demurrer should have been sustained because the damages alleged, loss of profits, are too remote and speculative to be recoverable. The defendant cites numerous cases to support its contention that prospective profits are too speculative to be a subject for damages. While we will consider those cases more in detail later in this opinion, it is well to note here that those cases preface their statements that loss of prospective profits is too speculative to form a basis for recovery by the words 'generally' and 'as a general rule,' etc. 25 C.J.S., Damages, § 42 b, p. 518. It is not the rule in this State that all profits are too remote and speculative to be recoverable. 'The profits of a commercial business are dependent on so many hazards and chances, that unless the anticipated profits are capable of ascertainment, and the loss of them traceable directly to the defendant's wrongful act, they are too speculative to afford a basis for the computation of damages.' (Emphasis supplied.) Cooper v. National Fertilizer Co., 132 Ga. 529, 535, 64 S.E. 650, 653. Therefore, each case must be examined to see if under its particular facts the profits involved are capable of reasonable ascertainment. We feel that the instant case is not one that falls within the 'general rule.' The plaintiff alleges that he had operated all three locations for one year prior to the interruption of the gas service; that during such time they had operated at capacity; that, had it not been for the interruption of the service, operation would have continued at capacity; that the calculations of the lost profits were based on the operations of the plants for the year prior to the interruption of service; and that the profits during such year had not materially fluctuated. One location was shut down for approximately two days, another for approximately three days, and the other for approximately four days. Nothing appears in the petition to refute the allegation that the plaintiff would have operated at capacity during those days had its gas supply not been interrupted. Under the circumstances as alleged we think that the plaintiff might prove with reasonable certainty the loss of profits.
In Cooper v. Young, 22 Ga. 269, the court did not base its disallowance of prospective profits on the theory that they were too remote and speculative to be ascertainable, but said: 'When he undertakes as a common carrier, he undertakes in view of the liability which the law annexes to the character of common carriers, for a breach of their contracts; and the owner, when he commits his goods to him, does it likewise with a view to the redress which the law entitles him to against the carrier, if he make default.' The court also stated...
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