Coast Transport, Inc. v. Stone

• Decision Date: 24 July 1957
• Docket Number: No. 8465,8465
• Citation: 79 Idaho 257,313 P.2d 1073
• Parties: COAST TRANSPORT, Inc., Plaintiff-Respondent, v. James E. STONE, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1073

313 P.2d 1073

79 Idaho 257

COAST TRANSPORT, Inc., Plaintiff-Respondent, v. James E. STONE, Defendant-Appellant.

No. 8465.

Supreme Court of Idaho.

July 24, 1957.

Richards, Haga & Eberle, Boise, for appellant.

Elam & Burke, Boise, for respondent.

TAYLOR, Justice.

On January 15, 1955, a collision occurred between a tractor and trailer, owned by plaintiff (respondent), and a truck and trailer, owned by defendant (appellant). Plaintiff brought this action for damages. Defendant cross-complained. Upon trial the jury returned its verdict in favor of defendant for the full amount prayed for in the cross complaint, $12,145. Judgment was entered for that amount.

Plaintiff filed a motion for a new trial. The grounds alleged were insufficiency of the evidence, and errors in law occurring at the trial. Among the specifications of insufficiency of evidence plaintiff alleged the evidence does not justify the amount of the verdict. After hearing, the court entered its order on the motion as follows:

'2. That defendant and cross-complainant file with this court within ten days, a waiver of any sum exceeding the total of $738.00, together with costs, or the court will, and does by this Order, grant a new trial on the issues raised by the cross complaint of the defendant and the answer of the plaintiff thereto.

'3. In the event that cross-complainant files the waiver aforesaid, the sum of $738.00, together with costs shall be the Judgment of this court in favor of cross-complainant and against the cross-defendant in the above entitled action.'

Defendant brings this appeal from the order.

The assignments are that the granting of the new trial was erroneous, and the trial court erred in holding, in effect, that the evidence was insufficient to justify the verdict in excess of $738.

Upon the trial it was stipulated that the cost of repairs to defendant's 'tractor' (cabover Kenworth truck), was $590, and the cost of towing it, $148, or a total stipulated damage of $738. Claiming total destruction of his trailer, defendant testified that vehicles of that type were not commonly bought and sold on the market; that it was a special utility insulated van; that the manufacturer's price for a new one at the time of the accident was $11,500; that he bought it, with the truck, when it was two years old. 'I bought them as a unit from an individual.' Although asked on cross-examination, he did not say how much he paid for the trailer. He also testified he had had the trailer 'not quite a year.'

Defendant, as owner, did not testify to the value of the trailer, nor as to its condition, at time of collision. He stated it had an average life of eight years and that he arrived at its value by depreciating the manufacturer's price by the sum of $1,450 a year for three years. He also testified he received $350 salvage for the wrecked trailer. Calculated in this manner, defendant's loss on the trailer would be $6,800. The jury gave him $8,500.

The defendant also claimed, and was awarded, $1,800 for loss of profits from the operation of the truck and trailer for a period of two months following the collision. His testimony in support of this loss consists of a statement of his gross receipts for the months of October, November, December, and the half of January preceding the accident, and then taking the average of that gross, or $4,001.18 per month, as his forecasted gross for the two months following the accident. He says from past experience his profit would be 25% of gross. On cross-examination he mentioned his books, but no records were produced. His statement of the percentage of profit appears to be an estimate. This method of establishing loss of profits was held inadequate in O'Brien v. Best, 68 Idaho 348, 194 P.2d 608, and in Nelson v. Oversmith, 69 Idaho 1, 201 P.2d 747. In the latter case, the court said:

'Respondent testified only as to his gross income of $1,240 for the eleven months preceding the fire and although he said he kept books, he did not show his net profit for the period he operated or that the gross was all profit to him. His testimony as to loss of $100 per month was by the words of the question propounded to him nothing but an estimate. Such evidence alone is not competent and cannot sustain the finding of the court in regard thereto because it was first a pure estimate (O'Brien v. Best, 194 P.2d 608), and second, if not an estimate, it was based only upon gross receipts, which are not sufficient proof of damages.' Nelson v. Oversmith, 69 Idaho 1, at page 5, 201 P.2d 747, at page 749.

See also Williams v. Bone, 74 Idaho 185, 259 P.2d 810; McNichols v. J. R. Simplot Co., 74 Idaho 321, 262 P.2d 1012; 4 Restatement of Torts, § 912, comment d.

Defendant also claimed, and was awarded, $1,000 for loss of his own personal earnings ar driver of his truck for two months following the collision. He testified he paid his driver 25% of gross, that he was driving with no driver during that period and so figured his loss of earnings at 12 1/2%. How this percentage is arrived at does not appear. He also testified he had another outfit and that he was back in business driving the other unit within a month after the collision. Defendant did not testify as to the time required for repair of his truck or when it was put back in service; yet it was a part of the unit upon which he calculated his loss of profits.

Finally, the jury awarded $250 expenses incurred in getting...