Johnson v. Central Aviation Corp.

• Decision Date: 27 March 1951
• Citation: 229 P.2d 114,103 Cal.App.2d 102
• Court: California Court of Appeals Court of Appeals
• Parties: JOHNSON et al. v. CENTRAL AVIATION CORP. et al. Civ. 7831.

Page 114

229 P.2d 114

103 Cal.App.2d 102

JOHNSON et al. v. CENTRAL AVIATION CORP. et al.

Civ. 7831.

District Court of Appeal, Third District, California.

March 27, 1951.

Rehearing Denied April 26, 1951.

Honey & Mayall, and Ralph E. Kingston, Stockton, for appellant.

Neumiller, Ditz, Beardslee & Sheppard, Stockton, for respondent.

VAN DYKE, Justice.

Appellants and cross-respondents Stanley Johnson and Horace B. Baird, a co-partnership, brought this action to recover damages from Central Aviation Corporation, a corporation, respondent and cross-appellant, and one Bruce Gross, respondent. Briefly stated, the complaint alleged that the partnership was the owner of an airplane known as a DC-3, and that Central Aviation Corporation owned a Luscombe airplane; that Bruce Gross was the agent, servant and employee of the corporation and that on October 1, 1947, he and the corporation so negligently and carelessly operated the Luscombe plane that it collided with the DC-3 and damaged the same; that the direct damage to the DC-3 amounted to $4,000, as being the reasonable cost of repairing the same; that the partnership lost the use of the DC-3 for a stated period of time, being further damaged thereby and that before the collision the partnership had entered into an agreement for the sale of the DC-3, but that by reason of the collision and consequent damage to the plane they were unable to consummate the sale to their further damage, consisting of the loss of profits they would have made through the contemplated sale. The corporation and Gross demurred to the complaint and their demurrers were overruled. They also moved to strike out the allegations concerning loss of profits through contemplated sale; they further asked, if that be denied, that there be stricken the allegations concerning damage through loss of use. The trial court, responsive to the motions, struck out the allegations concerning loss of profits and the trial proceeded upon the complaint as deleted.

Trial was by the court without a jury and the court found to be true the allegations concerning ownership of the planes, the agency of Gross and the negligence averred; further that by the collision the DC-3 was damaged in the sum of $2,950, representing the reasonable value of the necessary repairs. The court concluded that the partnership was entitled to judgment against each of the defendants in that sum and judgment was accordingly entered. No award was made for loss of use.

The partnership appealed from the judgment upon the issue of damages and the corporation appealed from the entire judgment against it. Gross did not appeal.

Since the partnership owing the DC-3 has appealed and the corporation owning the Luscombe has likewise appealed, we shall for convenience hereafter refer to them as the appellants and cross-appellant, bearing in mind, of course, that as to the partnership's appeal the corporation is respondent and as to the corporation's appeal the partnership occupies that status.

In support of their appeal, appellants, who were plaintiffs in the court below, present three contentions which may be stated as follows: 1. The court erred in striking from their complaint the allegations concerning damages through loss of profits from the sale of their plane; 2. The court erred in finding that the reasonable cost of repairing their plane was $2,950, the amount for which judgment was rendered, instead of $3,671.89, which they claim was proved, without contradiction, to be such reasonable cost of repair; 3. The court erred in refusing to allow any damages based upon loss of use of their plane. They request this court, pursuant to Rule 23a of the Rules on Appeal, to make new findings of fact awarding them $3,671.89 for cost of repairs and $19,500 for loss of use.

By the cross appeal taken by the corporation the following contentions are advanced: 1. That the court erred in finding that Gross was an agent, servant or employee of the corporation or acting as such within the scope of any employment at the time of the accident and that therefore the judgment against the cross-appellant should be reversed.

We will first consider appellants' contention that the court erred in striking from he complaint the allegations referring to damages for loss of profits through sale of the plane. This motion addressed to the pleading was made upon the ground that these allegations were sham, immaterial, surplusage, irrelevant, incompetent and constituted conclusions of law. The allegations stricken are: 'That prior to the collision plaintiffs had entered into an agreement for the sale of said DC-3 airplane for the sum of $27,500.00; that the cost of said airplane to said plaintiffs was the sum of $20,000.00 and that by virtue of said agreement of sale, plaintiffs would have made $7,500.00 profit; that by reason of said collision and the negligence of said defendants, and each of them, as aforesaid plaintiffs were unable to consummate said sale to their further damage in the sum of $7,500.00.'

We think this matter should not have been stricken from the complaint. Section 453 of the Code of Civil Procedure provides: 'Sham and irrelevant answers, and irrelevant and redundant matter inserted in a pleading, may be stricken out'. We do not think the matter stricken could be termed sham or irrelevant or redundant. In actions of tort there may be, where the circumstances justify it, a recovery for loss of profits resulting from the tort. The rule is stated in 25 Corpus Juris Secundum, Damages, p. 523, § 44, as follows: 'There may be a recovery for loss of profits consequent upon torts if such as may naturally be expected to follow from the wrongful act and if they are certain; but recovery is denied where the profits are uncertain, speculative, or remote.'

This rule is followed in California. Hollander v. Wilson Estate Co., 214 Cal. 582, 586, 7 P.2d 177; Martin v. Deetz, 102 Cal. 55, 68, 36 P. 368; Hoffmann v. Lane, 11 Cal.App.2d 655, 659, 54 P.2d 477; Continental Car-Na-Var Corp. v. Moseley, 24 Cal.2d 104, 113, 148 P.2d 9; Razzano v. Kent, 78 Cal.App.2d 254, 261, 177 P.2d 612; 8 Cal.Jur. 773. Even if it be claimed that loss of profits here was defectively pleaded, still the remedy was not by a motion to strike but by special demurrer. Swain v. Burnette, 76 Cal. 299, 18 P. 394. See, also, Barnes v. Berendes, 139 Cal. 32, 69 P. 491, 72 P. 406, where the trial court was upheld in its refusal to strike from the complaint on motion items of damage which plaintiff was entitled to recover. In this case a single tort was pleaded, and based upon that tort appellants were entitled to recover compensation for all the detriment proximately caused thereby whether it could have been anticipated or not. Sec. 3333, Civil Code. It is true that damages claimed through loss of profits may, upon the trial, be shown to be so speculative and remote that recovery cannot be allowed, but we are concerned here with a question of pleading. There is nothing necessarily inconsistent with a claim for damages for loss of use of the plane and a claim for loss of profits upon sale, since both elements of damages upon in a proper case, if the proof warranted, be allowable. Thus, the time for delivery of the plane under the sale might be far enough in the future to enable the owner to use the plane for his own purposes for a period of time before being obligated to deliver it to the buyer in accordance with his selling agreement. We think it could not be said that the allegations concerning loss of profits were sham, irrelevant or redundant. And whether plaintiffs were entitled to recover for both loss of profits and loss of use was matter which they should have been permitted to prove, if they could.

Appellants next contend that the evidence does not support the court's finding that the reasonable cost of the repairs amounted to $2,950, but on the contrary amounted to a greater sum. Stanley Johnson, one of the appellants, testified that $3,671.89 was the expense incurred in repairing the airplane, excluding any repairs that had been contemplated before the injury to the plane, in order to put it in airworthy condition. It appeared that the plane had been purchased in Florida from the War Assets Administration and had been flown to Stockton, California, where appellants conducted their business, by means of a ferry permit from the Civil Aeronautics Administration. This permit enabled appellants to fly the plane out to California, but they could not license it for use until certain repairs had been made. But Johnson's testimony as to cost of repairs excluded all repairs except those made necessary by the collision. Upon this issue of the actual reasonable cost of repairs to made necessary there was conflict in the testimony. One Macedo, who said he was a project engineer for Transocean Airlines and familiar with the cost of repairing planes, had inspected the damaged plane and made an estimate of the cost of repair which he testified was reasonable. He testified that 650 man hours of labor at $3.50 per hour was reasonably necessary for the repair of the plane. Johnson testified, on the contrary, that 1,100 man hours had been necessarily used for that purpose. Allowing the full sum claimed by appellants for cost of repair parts, it is apparent that the trial court disallowed in part the claim that 1,100 man hours were necessary. There was a clear issue of fact. The trial court was acting within its discretion in fixing the sum which it did fix as the necessary cost of repairs. We find no error in the trial court's conclusion in this regard.

Appellants contend, finally, that the trial court erred in refusing to allow as damages any sum for loss of use of the plane....