Holliday v. Sphar

• Decision Date: 27 May 1938
• Parties: HOLLIDAY v. SPHAR.
• Court: Kentucky Court of Appeals

119 S.W.2d 656

274 Ky. 556

HOLLIDAY v. SPHAR.

Court of Appeals of Kentucky

May 27, 1938

Rehearing Denied Oct. 7, 1938.

Appeal from Circuit Court, Clark County.

Action on injunction bonds by W. M. Holliday against W. R. Sphar to recover damages for wrongful issuance of injunctions against plaintiff. From a judgment of dismissal, plaintiff appeals.

Affirmed.

Marcus C. Redwine and J. Smith Hays, both of Winchester, for appellant.

D. L Pendleton, J. M. Stevenson, and Frank Stevenson, all of Winchester, for appellee.

DRURY Commissioner.

W. M Holliday sued W. R. Sphar and sought to recover of him upon certain injunction bonds, $3636.76, for alleged damages for the wrongful issue of certain injunctions obtained against him. Holliday was unsuccessful and he has appealed. The reader of this opinion will understand it better if he will first read the opinion in Holliday v. Sphar, 262 Ky 45, 89 S.W.2d 327.

On May 22nd, 1935, Sphar filed a petition in equity in the Clark Circuit Court against W. M. Holliday. In order that we may know exactly the relief sought, we copy here the prayer of that petition and have italicised a part of it for our convenience.

"Wherefore the plaintiff, William R. Sphar, prays that the defendant, W. M. Holliday be perpetually enjoined and restrained, and that a temporary restraining order be issued herein enjoining and restraining the defendant, W. M. Holliday, from erecting or building any other building or improvement on his said lots other than a residence costing not less than Thirty-five Hundred Dollars ($3500.00) and not closer to his front property line than twenty-five (25) feet on Boone and Belmont Avenues, and he prays for his costs and all proper relief."

On June 3rd, 1935, Holliday filed his answer, and here is a copy of the relief he sought in that answer and we have italicised a portion of it.

"Wherefore, the defendant prays that the plaintiff take nothing by his petition and it be dismissed, and that the defendant recover of the plaintiff his cost herein expended and he prays for all proper relief."

If we were to strike out the italicised portions of the prayers of this petition and answer there would be nothing left at issue which shows conclusively that the only thing involved on that former trial was the injunctive relief which Mr. Sphar was seeking. Upon the final hearing of that former case in this court, it was held Sphar was not entitled to that injunctive relief.

When he first filed his suit, Sphar executed a bond and obtained from the clerk a temporary restraining order on the 22nd of May, 1935. We give here a copy of that bond, omitting the caption and signatures.

"We, William R. Sphar, principal, and J. M. Stevenson his surety, undertake to the Defendant that the Plaintiff William R. Sphar shall pay to the Defendant, W. M. Holliday the damages he may sustain not to exceed One Thousand Dollars, if it be finally decided that the injunction herein should not have been granted." On June 4th, 1935, the trial court heard that former case upon Holliday's motion to dissolve that temporary restraining order and Sphar's motion for a temporary injunction. The trial court by its order then entered (to become effective 20 days thereafter) so modified the restraining order as to allow Holliday to go ahead with the construction of his proposed building and overruled Sphar's motion for a temporary injunction.

Application was made to a member of this court and such member directed that a temporary injunction issue to preserve the status until the case could be heard on its merits.

Pursuant thereto and on July 14th, 1935, Sphar obtained a temporary injunction, and executed a bond, which, omitting the caption and signatures, is as follows:

"We, W. R. Sphar, principal, and J. M. Stevenson, surety, undertake that said W. R. Sphar will pay to the defendant, W. M. Holliday, such damages as he may sustain, if it be finally decided that the temporary injunction issued under order of Hon. William Rogers Clay, Judge of the Court of Appeals of Kentucky, ought not to have been granted."

This is an action by W. M. Holliday against Mr. Sphar on these bonds, in which he sought to recover for the following:

Net profits of business for 8 1/2 months	$3049.00
Attorney's fees in former suit	450.00
Expenses and cost, in former suit	137.76
	--------
Total	$3636.76

This charge of expense and cost totaling $137.76 was itemized as follows:

Defendant's cost due L. D. Aldridge	$22.50
Sheriff's fee, due Lisle Fox	1.70
Taxed attorney's fee	5.00
Writ tax	.50
Depositions, paid Mrs. Elkins	19.20
Carbon copy of transcript paid by Holliday	17.36
Holliday's expenses to Richmond, Frankfort, Shelbyville	30.00
Cost of printing brief	27.50
Paid out by Holliday for labor just before restraining order was	8.00
issued
Paid by Holliday to L. A. Nevins for pictures used on the trial	6.00
	-------
	$137.76

Upon the hearing of this cause Holliday admitted that Sphar had paid a part of the first five items in the above account, and Sphar offered to confess judgment for the $24.70 remaining of such five items and the court awarded Holliday a judgment against Sphar for $24.70 and cost to that day expended. Thereupon, Sphar moved to strike the remainder of Holliday's petition as amended, which motion the court sustained. The plaintiff declined to plead further and the court awarded Holliday a judgment against Sphar for the costs to that date expended and dismissed Holliday's petition and he has appealed.

Ordinarily a motion to strike cannot be used in place of a demurrer. See Louisville & N. R. Co. v. Horton, 187 Ky. 617, 219 S.W. 1084; Mann v. Woodward, 217 Ky. 491, 290 S.W. 333; Burton v. Ott, 226 Ky. 647, 11 S.W.2d 700; City of Princeton v. Baker, 237 Ky. 325, 35 S.W.2d 524; 49 C.J. 686, § 975.

However in this case the parties treated this motion to strike as a demurrer, the court treated it as a demurrer, and the order shows that Holliday declined to further amend his petition and thereupon the court dismissed it. So, we will do as they did. We will treat it as a demurrer in our examination of this record. The effect of sustaining this motion to strike was to deny Holliday the right to recover his alleged profits of $3049.00, his attorney's fee of $450.00 and the last five items (aggregating $88.86) of his $137.76 claim. We shall now consider these as Holliday set them out in his amended petition.

The $3049.00 Claim.

Holliday alleged that he was deprived of the use of his property for 8 1/2 months and that if he had been allowed to use that property for that time he would have made profits and incurred expenses as follows:

Gross Profits--Sales for 8 1/2 months.
Gasoline--9000 gallons per month, 4 cents per gallon profit or	$3,060.00
$360.00 per month, or 8 1/2 months
Oil--400 quarts per month, at least 10 cents quart profit or $40.00	340.00
per month or for 8 1/2 months
Store--Gross Sales per day $30.00 with average 20% profit, or about	1,530.00
$180. per month, or for 8 1/2 months
Expense of doing this business:
Clerk, self $50. per mo. for 8 1/2 mos.	$425.00
Clerk, wife " " " " "	425.00
Rent, $100.00 " "	850.00
Utilities, lights " "	76.00
Gas " "	15.00
Telephone " "	40.00
Heating " "	30.00
Water " "	20.00
Net Profits " "	3049.00
	---------
$4930.00	$4930.00

Loss of profits from an established business caused by wrongful injunctions are recoverable if they can be ascertained with reasonable certainty. 32 C.J. 468, § 418. This $3049.00 claim is speculative. Doubtlessly Mr. Holliday fully expected to make such profits as these, but his claim therefor is entirely speculative. There is nothing to show that he had ever had any previous experience in the business he proposed to conduct, or had any reasonable hopes of making such profits. It is well settled that such conjectural profits cannot be recovered. See 32 C.J. p. 466, § 810; 32 C.J. p. 468, § 814; 17 C.J. p. 753, § 86; 17 C.J. p. 910, § 199; 17 C.J. p. 785,§ 112.

In the case of Epenbaugh v. Gooch, 15 Ky.Law Rep. 576, in the abstract of the opinion published there, we find this:

"Conjectural profits which might have been realized from the use of land are too remote and uncertain to be recovered as damages on account of being deprived of the use of the land."

We regard 17 C.J. p. 797, § 118, as the correct statement of the law as regards a new business. In support of it there is cited the case of Whitehead v. Cape Henry Syndicate, 111 Va. 193, 68 S.E. 263. That case is quite instructive. It was a fishing case. Whitehead had obtained a license to fish and began his operation. After approximately one month's operation his business was interrupted by an injunction sued out by the Cape Henry Syndicate, which injunction was subsequently dissolved by the Supreme Court of Appeals of Virginia. Whitehead v. Cape Henry Syndicate, 105 Va. 463, 54 S.E. 306. Whitehead then sued the Cape Henry Syndicate upon the injunction bonds and obtained a judgment for $1100.00. Subsequently that judgment was set aside and Whitehead appealed from that order. The Supreme Court of Appeals of Virginia, in denying him a recovery, said (68 S.E. page 264):

"Profits are not excluded from recovery because they are profits, but, when excluded, it is because there are no criteria by which their amount can be ascertained with reasonable certainty or definiteness. When prospective profits or gains can be so proved, and their loss is the natural and

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