Cain v. Vollmer

• Decision Date: 31 December 1910
• Citation: 112 P. 686,19 Idaho 163
• Parties: WILLIAM M. CAIN, Appellant, v. JOHN P. VOLLMER et al., Respondents
• Court: Idaho Supreme Court

112 P. 686

19 Idaho 163

WILLIAM M. CAIN, Appellant, v. JOHN P. VOLLMER et al., Respondents

Supreme Court of Idaho

December 31, 1910

TRESPASS VI ET ARMIS-RACING CONTESTS-PRIZES ON HORSE-RACES-INJURY TO JOCKEY-SPECULATIVE DAMAGES.

(Syllabus by the court.)

1. Where C. has an apprentice who is serving him as a horse jockey and who is riding in a race at a racing association and is thrown and injured and disabled for future riding by reason of the wrongful act of V. and others in allowing a dog to rush upon the race-track in front of the horse as he is making the home stretch, and C. thereafter sues V. and others for damages on account of the injury to his jockey and his disability for riding in future races, and alleges that he will be unable to secure another jockey of equal skill and ability in riding races, and that he would have won large prizes and premiums had his jockey not been thus injured held, that the damages claimed by the master on account of the injury to his apprentice, the jockey, are too remote speculative, contingent and uncertain to be estimated or allowed, and that no recovery can be had therefor.

APPEAL from the District Court of the Second Judicial District, in and for the County of Nez Perce. Hon. Edgar C. Steele, Judge.

Action by plaintiff for damages on account of trespass vi et armis. Judgment for defendant and plaintiff appealed. Affirmed.

Judgment affirmed, with costs in favor of respondents.

I. N. Smith and Clay McNamee, for Appellant.

The evidence offered and rejected showed that Bennie McClain had a fixed market value on his services of $ 15,000 a year; that Cain had been offered that sum for Bennie's services, and had been offered $ 5,000 for first refusal. The evidence further shows that the injuries occasioned Bennie McClain deprived Mr. Cain of these services, to his damage to the amount of $ 15,000 per racing season. This was competent, was readily ascertainable, and was fixed value, which should have been submitted to the jury, and was capable of proof and ascertainment as the value of any other commodity on the market. The court committed error in sustaining these objections, and likewise the motion for nonsuit. ( Whaling Co. v. Alaska Packers, 138 Cal. 632, 72 P. 161; Schrandt v. Young, 2 Neb. (Unof.) 546, 89 N.W. 607; Shoemaker v. Acker, 116 Cal. 239, 48 P. 62; C. R. I. & P. Ry. v. Scheinkoenig, 62 Kan. 57, 61 P. 414; Paul v. Cragnaz, 25 Neb. 293, 59 P. 857, 60 P. 983, 47 L. R. A. 540; Lund v. Tyler, 115 Iowa 236, 88 N.W. 333; Lane v. Minn. State Agr. Assn., 62 Minn. 175, 64 N.W. 382, 29 L. R. A. 708; Arkansas Land & Cattle Co. v. Mann, 130 U.S. 69, 9 S.Ct. 458, 32 L.Ed. 854; Baker v. Manhattan Ry. Co., 54 N.Y.S.Ct. 394, 7 N.Y.S. 68; Wardle v. New Orleans City Ry. Co., 35 La. Ann. 202; McDermott v. Severe, 202 U.S. 602, 26 S.Ct. 708, 50 L.Ed. 1162; Schmitz v. St. Louis etc. R. Co., 119 Mo. 256, 24 S.W. 472, 23 L. R. A. 250; Rosenkranz v. Lindell Ry. Co., 108 Mo. 9, 32 Am. St. 588, 18 S.W. 890; Delaware, L. & W. R. Co. v. Devore, 114 F. 155, 52 C. C. A. 77; Storrs v. Los Angles Traction Co., 134 Cal. 91, 66 P. 72; Joslin v. Grand Rapids Ice & Coal Co., 53 Mich. 322, 19 N.W. 17; Rule v. McGregor, 117 Iowa 419, 90 N.W. 811.)

Geo. W. Tannahill, and Fred E. Butler, for Respondents.

The profits to be made by appellant were dependent upon whether or not he would lose or win races. These profits are so speculative and uncertain that they cannot be taken into account in determining the measure of damages alleged and claimed by the appellant. (Western Union Tel. Co. v. Crall, 39 Kan. 580, 18 P. 719; Smitha v. Gentry, 20 Ky. L. Rep 171, 45 S.W. 515, 42 L. R. A. 302; Western Union Tel. Co. v. Way, 83 Ala. 542, 4 So. 844; Ozaias Paquin v. St. Louis & Sub. R. Co., 90 Mo.App. 118; Garitee v. Mayor, 53 Md. 422; Cutting v. Miner, 30 A.D. 457, 52 N.Y.S. 288.)

Damages to be recovered must be traceable to the act complained of as its direct proximate or natural consequence, must not be remote, speculative, involving inquiries that are collateral to the consideration of the wrongful act. (McDaniel v. Crabtree, 21 Ark. 431; Lightfoot v. West, 98 Ga. 546, 25 S.E. 587; Butler v. Collins, 12 Cal. 457; Blair v. Kilpatrick, 40 Ind. 312; Hesse v. Columbus S. & H. R. Co., 58 Ohio St. 167, 50 N.E. 354; Mitchell v. Chicago R. I. & P. Ry. Co., 138 Iowa 283, 114 N.W. 622.)

"In an action to recover damages for a loss of profits no evidence can be given as to the uncertain future profits of commercial business, nor can the amount of past profits derived therefrom be shown to enable the jury to conjecture what the future profits might be." (13 Cyc. 56, 58; Martin v. Deetz, 102 Cal. 55, 41 Am. St. 151, 36 P. 368; Cooper v. Young, 22 Ga. 269, 68 Am. Dec. 502.)

"Remote, speculative or conjectural damages are not recoverable." (11 Current Law, 964, 965; Holmes v. Penn R. R. Co., 220 Pa. 189, 123 Am. St. 685, 69 A. 597; Findlater v. Darland, 152 Mich. 301, 116 N.W. 410; Harper Furn. Co. v. Southern Express Co., 148 N.C. 87, 128 Am. St. 588, 62 S.E. 145.)

AILSHIE, J. Sullivan, C. J., concurs.

OPINION

STATEMENT OF FACTS.

This is an appeal from a judgment of nonsuit and an order denying a motion for a new trial. The action was one of trespass vi et armis, whereby the respondents are alleged to have wrongfully and unlawfully injured and disabled appellant's apprentice from the further discharge of his duties. The facts and circumstances out of which the injury or accident occurred are quite fully stated in McClain v. Racing Assn., 17 Idaho 63, 104 P. 1015, 25 L. R. A., N. S., 691.

McClain v. Association and this case both grew out of the same injury and accident. In that case the apprentice, a horse jockey, sued the owner of the dog which caused the injury for injuries and damages sustained by him personally. This action is prosecuted by the master against the owner of the dog for damages caused by reason of the injury and disability received by the jockey, whereby the latter was disabled and disqualified from thereafter riding appellant's race-horses in speed contests. Appellant alleged in his complaint that by reason of the injury and disability received by the jockey, Bennie McClain, the latter was thereafter unable to perform the contract of apprenticeship and discharge the duties for which he had been apprenticed, and that by reason thereof the appellant sustained large damages, for the reason that he would thereafter during the life of the contract of apprenticeship be unable to employ a jockey equal in skill and ability to his apprentice, McClain, and that it would thereby defeat and deprive him from earning large prizes and purses in speed contests, state and county fairs, and racing associations. He alleges that the jockey, by reason of being an expert at the business of riding in speed contests, had earned him upward of $ 12,000 in the preceding year. Evidence was introduced and other evidence offered which was refused, all of which tended to establish such facts after a manner and as definitely perhaps as would be possible. At the close of the plaintiff's case, defendants moved for a nonsuit, which was granted.

The original contract of apprenticeship was entered into in the state of Missouri by one Claude Lorene Enyart, party of the first part, as master and employer, and Benjamin Franklin McClain and Louise J. McClain, father and mother of the apprentice, and B. F. McClain, Jr., apprentice. It provided that B. F. McClain, Jr., should have free board, lodging, medical attendance and transportation and the right and privilege to collect for all "outside mounts when the first party has no horses entered in such race," and that the first party would pay to the parents of the apprentice $ 15 per month for the first year, $ 20 per month for the second year, and $ 20 per month for the third year. This contract was entered into on the 26th day of December, 1905. Thereafter and on the 30th day of March, 1907, at Emeryville, Cal., Enyart for and in consideration of the sum of $ 500 as provided in the contract "did sell, assign and transfer to William Cain all the right, title and interest in and to that certain contract for the services of B. F. McClain, Jr., bound to him, C. Enyart, for three years, and agreed to deliver to the said William Cain said contract for services, properly assigned, as may be required by racing clubs and associations." The parents of the apprentice did not approve or consent to this assignment by any writing or apparently in any manner, unless it be by subsequently receiving monthly wages from the assignee Cain.

AILSHIE, J. (After stating the facts.)

Two principal and decisive questions are presented to the court in this case. The first is, that an apprentice is not assignable, or, in other words, that a contract of apprenticeship may not be assigned by the master or employer. The second question is, that even if the contract was assignable, the damages claimed are too speculative, remote and contingent to be recognized or considered by a court. In the argument of these matters, counsel for appellant contends that the question of the right to collect damages in such a case has been definitely decided and settled by this court in McClain v. Association, 17 Idaho 63, 104 P. 1015, 25 L. R. A., N. S., 691, and that therefore the only real question to be considered is that...