Johnson Oil Ref. Co. v. Elledge

• Decision Date: 14 January 1936
• Docket Number: Case Number: 25202
• Parties: JOHNSON OIL REFINING CO. v. ELLEDGE
• Court: Oklahoma Supreme Court

1936 OK 28

53 P.2d 543

175 Okla. 496

JOHNSON OIL REFINING CO. v. ELLEDGE

Case Number: 25202

Supreme Court of Oklahoma

Decided: January 14, 1936

Syllabus

¶0 1. APPEAL AND ERROR - Review - Judgment Based on Verdict Supported by Competent Evidence not Disturbed.

A judgment based on the verdict of a jury in a law action will not be disturbed on appeal if there is any competent evidence reasonably tending to support the same.

2. DAMAGES - Loss of Profits Resulting From Wrongful Destruction of Established Business.

Loss of profits proximately resulting from the wrongful destruction of an established business constitutes an element of damages recoverable for such destruction.

3. SAME - Question for Jury - Scope of Evidence.

In an action to recover damages for loss of profits to a business where plaintiff alleged that said business was totally destroyed by the wrongful acts of the defendants, held, that where it was apparent that some loss was suffered, it was proper to let the jury determine what the loss probably was from the best evidence the nature of the case admitted.

Appeal from District Court, Tulsa County; S.J. Clendinning, Judge.

Action by Mose Elledge against the Johnson Oil Refining Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

West & Davidson, for plaintiffs in error.

B.A. Hamilton, for defendant in error.

OSBORN, V. C. J.

¶1 This action was instituted in the district court of Tulsa county by Mose Elledge, hereinafter referred to as plaintiff, against the Johnson Oil Refining Company, a Delaware corporation, and the Johnson Oil Refining Company, an Illinois corporation, hereinafter referred to as defendants, as an action to recover damages sustained by plaintiff on account of loss of business. The cause was tried to a jury and a verdict was rendered in favor of plaintiff in the sum of $3,000. At the direction of the trial court a remittitur of $2,000 was filed by plaintiff. Motion for new trial was overruled and defendants have appealed.

¶2 This is a companion case to Johnson Oil Refining Co. v. Elledge, 171 Okla. 398, 42 P.2d 840. The issues involved in the two cases are identical except as to elements of damage.

¶3 Plaintiff for a number of years had owned and operated a filling station and garage situated on the northeast corner of the intersection of Caddo and B streets in the city of Cleveland. Directly opposite and on the southeast corner of the intersection was a lot owned by one Ralph Johnson. On the north side of the Johnson lot was a dry ditch which had formerly carried surface water from the west into a small creek running north and south. Johnson decided to establish a filling station on his lot and made arrangements with one D.N. Ross to lease the station and operate the same. In order to secure an approach to the station it was necessary to fill the ditch. The evidence discloses that Johnson entered into a contract with the defendant company to fill the ditch, the contract price therefor being $75. Under the supervision of the superintendent of defendant companies approximately 35 or 40 loads of petroleum coke were hauled to the premises. The testimony offered by defendants was that the coke was placed in the ditch and covered with earth and chat, while the evidence offered by plaintiff was to the effect that a large quantity of the coke was placed in the highway and under the travel of automobiles and other vehicles it became powdered and was blown by southerly winds into his place of business to the extent that his entire premises were covered with a coating of black petroleum dust and thereby became unsightly and unclean; that from the date the coke was placed in the highway it was blown upon his premises and his business decreased until he was finally forced to abandon the location.

¶4 It is first contended by defendants that the court should have instructed a verdict in their favor for the reason that the parties who performed the acts complained of by plaintiff were not at that time the employees of defendants, but were agents and employees of Ralph Johnson and D.N. Ross. This contention is wholly without merit. The evidence of defendants was to the effect that said defendants were employed by Johnson to fill the ditch at a stipulated price. It is undisputed that the agents and employees of defendants performed and supervised the work. The evidence does not show any contractual arrangement between the parties as to the material which was to be used to fill the ditch. The evidence fails to show that either Ralph Johnson or D.N. Ross at any time exercised supervision or control over the employees of defendants in...