Capital Garage Company v. Max L. Powell

• Decision Date: 08 January 1925
• Citation: 127 A. 375,98 Vt. 303
• Parties: CAPITAL GARAGE COMPANY v. MAX L. POWELL
• Court: Vermont Supreme Court

127 A. 375

98 Vt. 303

CAPITAL GARAGE COMPANY v. MAX L. POWELL

Supreme Court of Vermont

January 8, 1925

November Term, 1924.

ACTION OF TORT by successful plaintiff in ejectment for damages for wrongfully withholding property. Plea, general issue. Trial by jury at the September Term, 1924, Washington County Willcox, J., presiding. Verdict for nominal damages directed by court, and judgment on verdict. The plaintiff excepted. The opinion states the case. Reversed and remanded.

Reversed and remanded.

H C. Shurtleff for the plaintiff.

Max L. Powell and John W. Gordon for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION

POWERS

This is a tort action supplemental to the ejectment suit between the same parties (Capital Garage Co. v. Powell, 97 Vt. 204, 122 A. 423), and is brought to recover the damages occasioned by being deprived of the use and occupation of the garage in question from November 22, 1922, to October 18, 1923, during which time it was admitted that the plaintiff was wrongfully excluded by the defendant. The actual occupant of the premises during this time was Leo Johnson, who carried on therein a car-selling and garage business. He was called as a witness, and testified that the amount of garage business done there during the time in question would appear from his books. His bookkeeper was then improved as a witness, and asked to give from the books the amount of business "that was transacted in the garage end of that business" month by month during the period named. Upon objection being made, the plaintiff explained that the evidence was offered on the question of damages. An unnecessarily long and tedious discussion followed regarding the measure of damages in such cases and the evidence admissible to establish the same, during which other questions were asked, discussed, and excluded. Throughout this discussion, the plaintiff insisted that it was entitled to recover all it had lost by reason of being kept out of the possession of the garage, including the profits it could have made there; and that, to establish this loss, it had a right to show the business done and profits made by Johnson during that time, not as the measure of its recovery, but as circumstances to guide the jury in estimating its loss. The defendant vigorously disputed this claim, and insisted that the plaintiff's recovery was limited to the rental value of the premises as determined by its location, adaptability to the business, and the other circumstances. The result of it all was that the court accepted the defendant's view of the question, excluded the offered evidence, and the plaintiff excepted.

At common law, a successful plaintiff in ejectment recovered the demanded premises, but with nominal damages, only. He could then bring an action of trespass for mesne profits, in which he recovered such damages as the law gave him. Our statute, G. L. 2122, changed this procedure and blended the latter action with the former. Brinsmaid v. Mayo, 9 Vt. 31.

Mesne profits were the pecuniary gains and benefits received by the disseizor during his unlawful occupancy. R. & L. Law Dict.; 19 C. J. 1233. These, computed with equitable allowances for taxes and other necessary expenses paid, were awarded to the plaintiff. Ordinarily, the mesne profits were determined by the rental value; and this was enough to reimburse the plaintiff for his loss. But it was not always so; in proper cases, special damages, if alleged, were recoverable. Newell, Eject. 608; Adams, Eject. 459; Goodale v. Tombs, 3 Wils. 118. While the statute above referred to speaks of the recovery of "damages," the term "mesne profits" persists in the cases, and is commonly used to denote the damages recoverable in ejectment.

It is to be admitted that some confusion is found in the modern cases on the subject under discussion, but the rule to be deduced therefrom is neither difficult nor peculiar. The action sounds in tort, and the rule of damages is the one generally governing in tort actions. It has for its very foundation, the doctrine of compensation for the pecuniary loss resulting from the unlawful act. Newell, Eject. 609; Morrison v. Robinson, 31 Pa. 456. To limit one whose property has been wrongfully withheld from him to a less sum than this, would be manifestly unfair. So the law says to one who wrongfully obtrudes himself into a possession that belongs to another, "you shall make good to the disseizee the loss resulting therefrom." This may be measured by the rental value of the premises, or it may be more. When the rental value, alone, compensates the plaintiff, it governs the award of damages; when that value falls short of such compensation, it does not. As a general rule, the rental value will afford compensation, but the disseizee is entitled to all he has lost, be the same more or less than the rental value. Yuen Suey v. Fleshman, 65 Ore. 606, 133 P. 803, Ann. Cas. 1915A, 1072. "Ordinarily," says the court in Trotter v. Stayton, 45 Ore. 301, 77 P. 395, "the measure of damages is the fair value of the use of the premises during the occupancy of the defendant; but the plaintiff is not confined alone to such damages. He is entitled to recover all damages which he may suffer, fairly resulting from the wrong complained of, if specially pleaded." The Massachusetts court in Hodgkins v. Price, 141 Mass. 162, 5 N.E. 502, adopts the same rule in the following language: "In an action like this the rule of damages should have as its basis compensation to the plaintiff for the injury he has sustained. The measure of damages should be, as in an action of trespass for mesne profits, a sum which, upon just and equitable principles, will furnish such compensation or indemnity. The plaintiff should be placed in as good a position as he would have been in if the defendants had not dispossessed him." Our own holdings are in harmony with the foregoing.

It was said in Lippett v. Kelley, 46 Vt. 516, that the general rule in an action for mesne profits is that the plaintiff may recover the annual value of the land from the time of the accruing of his title. But this is not to be taken as excluding special damages if required to make the plaintiff whole. This is sufficiently shown by the fact that the Court in referring to the English rule, quotes from Goodale v. Tombs, supra, the language of Gould, J., as follows: "I have known four times the value of the mesne profits given by a jury in this sort of action of trespass; if it were not to be so, sometimes complete justice could not be done to the party injured." Again, in Roach v. Heffernan, 65 Vt. 485, 27 A. 71, a controversy over a slate quarry, the Court found that if the defendant had surrendered the premises, the plaintiff could reasonably have realized a profit of one hundred dollars for the use thereof, and awarded judgment for that sum. This Court, indorsing the rule as above stated, affirmed the judgment. It is apparent that the Court must have concluded that the use of the quarry was worth what the owner could have made by operating it. In Powers et al., Exrs. v. Trustees Cal. County Grammar School, 93 Vt. 220, 106 A. 836, this Court again recognized the rule that the rental value is not always the full measure of damages, by saying that the mesne profits may sometimes be ascertained by proving the profits actually received, and holding that, a plaintiff may "recover not only the profits that might have been made from the use of the premises recovered, but also such consequential damages as have resulted from the acts of the defendant while in the wrongful occupation of the premises." One of the cases therein cited and relied upon is Worthington v. Hiss, 70 Md. 172, 16 A. 534, 17 A. 1026, wherein it is held: "It is well settled that in an action to recover mesne profits, the plaintiff must show in the best way he can what the profits are, and there are two modes of doing so, to either of which he may resort. He may either prove the profits actually received, or the annual rental value of the land"--which is just what the court said in Nathan v. Dierssen, 164 Cal. 607, 130 P. 12. And, finally, in this very litigation, Capital Garage Co. v. Powell, 97 Vt. 204, 122 A. 423, we recognized and indirectly approved the rule contended for by the plaintiff in passing upon the sufficiency of the allegations of the complaint to cover special damages. Compensation being the basis of the recovery in these actions, the wrongdoer must respond for gains prevented as well as for losses sustained, so far as the same are sufficiently alleged and proved. The question involved is not so much the right to recover these, as the sufficiency of the proof. The profits claimed must not be uncertain, speculative, or remote. But such as the proof reasonably shows that the plaintiff has been proximately deprived of by the defendant's wrongful act are recoverable. Prospective profits, to be sure, necessarily depend upon various conditions; but these are for the consideration of the jury, and are to be given such effect as the judgment of the jury dictates. Allison v. Chandler, 11 Mich. 542. They cannot be proved with exactness; but this, too, is for the consideration of the jury. "They need not be susceptible of calculation with mathematical exactness," says Chief Justice Rugg in Lowrie v. Castle, 225 Mass. 37, 113 N.E. 206, "provided there is

a sufficient foundation for a rational conclusion." Evidence of such profits is received, not as furnishing "a measure of damages to be adopted by the

jury, but to be taken into consideration by the jury to guide them" in arriving at a correct estimate of the plaintiff's loss. East Jersey Water

Co. v. Bigelow, 60 N.J.L. 201, 38 A. 631; Peshine v. Shepperson, 58 Va....