Ishie v. Kelley
| Decision Date | 23 April 1990 |
| Docket Number | No. 90-5,90-5 |
| Citation | 788 S.W.2d 225,302 Ark. 112 |
| Parties | Angelia ISHIE, Appellant, v. James KELLEY, Appellee. |
| Court | Arkansas Supreme Court |
Elton A. Rieves, IV, West Memphis, for appellant.
Louis A. Etoch, Helena, for appellee.
James Kelley was injured when his automobile was struck from behind by Angelia Ishie. Some three months later Kelley was injured again when a truck in which he was riding failed to negotiate a curve and turned over. Kelley sued Ishie for personal injuries and property damage. The jury awarded Kelley $50,000 and Ms. Ishie has appealed. We find merit in one of the assignments of error and, accordingly, we reverse and remand for a new trial.
Over Ms. Ishie's specific objection that there was insufficient evidence of a loss of profits, the trial court submitted that issue to the jury in the form of AMI 2206, which permitted the jury to consider as an element of damages, the value of "any profits lost and the present value of any profits reasonably certain to be lost in the future." That was error, in light of the testimony, and the judgment must be reversed.
Mr. Kelley testified that he operated his own plumbing business. He said that he had made $970 in January and February of 1988 leading up to the accident on February 24. In 1987 he had filed an income tax return reflecting income of $4,970 and had made approximately $8,000 ("a little more or a little less") in 1986. His income for 1985 was $15,000 ("it could have been a little more or a little less.") He was able to produce only one tax return for the previous five years, 1987, and on cross-examination said he did not know how much he had earned in 1986. While his testimony was undeniably vague as to earnings for the years involved, that alone might not compel reversal. The problem is the totals appear to be gross earnings, whereas Mr. Kelley conceded that he employed others to help him in the business, yet he offered no evidence whatever as to the cost of labor or other expenses, if any, from which net income could be determined.
It is settled law that past and future earnings or profits lost because of personal injuries are recoverable as damages. AMI 2206. St. Louis San Francisco Ry. Co. v. Spradley, 199 Ark. 174, 133 S.W.2d 5 (1939); St. Louis, I.M. & S.Ry. Co. v. Eichelman, 118 Ark. 36, 175 S.W. 388 (1915). However, it is equally true that in order to recover lost profits a plaintiff must present a reasonably complete set of figures and not leave the jury to speculate. Sumlin v. Woodson, 211 Ark. 214, 199 S.W.2d 936 (1947). That is to say, the law requires that profits be shown with reasonable certainty. Swenson & Monroe v. Hampton, 244 Ark. 104, 424 S.W.2d 165 (1968); Crow v. Russell, 226 Ark. 121, 289 S.W.2d 195 (1956).
Where, as here, it is evident that the only figures provided are gross amounts rather than net, with no basis from which a jury could reasonably infer the approximate net earnings of the plaintiff, any resulting verdict is based on conjecture. Farmers Co-op. Assn. v. Phillips, 241 Ark. 28, 405 S.W.2d 939 (1966); Beasley v. Boren, 210 Ark. 608, 197 S.W.2d 287 (1946). In Phillips, reversal was compelled because the only proof of loss was testimony that the plaintiff had "received $1,866 for the last bunch of broilers sold, but this was the gross amount, there was no testimony as to the net amount."
Appellee regards this case as indistinguishable from Coca- Cola Bottling Co. of Southeast Arkansas v. Jones, 226 Ark. 953, 295 S.W.2d 321 (1956). We cannot agree. In Jones the defendant made only a general objection to an instruction on the measure of damages, so the issue on review was simply whether the instruction was inherently wrong--the opinion suggesting that if the evidence of net or gross earnings was subject to challenge, a specific objection was called for.
It is clear in this case there was some uncertainty about the difference between loss of earnings and loss of earning capacity. When counsel for Ms. Ishie moved for a directed verdict with respect to the claim for loss of profits, counsel for Mr. Kelley responded that the evidence was offered to establish loss of earning capacity rather than loss of profits. Evidently...
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