Kellerman v. Dedman

• Decision Date: 03 February 1967
• Citation: 411 S.W.2d 315
• Parties: A. M. KELLERMAN et al., Appellants, v. J. A. DEDMAN, d/b/a J. A. Dedman Realty Company et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 315

411 S.W.2d 315

A. M. KELLERMAN et al., Appellants, v. J. A. DEDMAN, d/b/a J. A. Dedman Realty Company et al Appellees.

Court of Appeals of Kentucky.

Feb. 3, 1967.

D. Paul Alagia, Jr., Brown & Alagia, Louisville, for appellants.

Harold Y. Saunders, Saunders & Mitchell, Shelbyville, for appellees.

WADDILL, Commissioner.

This appeal questions the correctness of a judgment awarding $4600 to the appellees Earl and Irene Perry and $400 to the appellee J. A. Dedman.

Appellants A. M. Kellerman and his wife owned two dairy farms in Shelby County which were managed by Earl Perry. In the fall of 1963 Perry desired to quit farming and so informed the Kellermans. Certain livestock, feed, machinery and other personal property were owned in partnership by the Kellermans and Perry and his wife. To dispuse of this property, and some property belonging to the Perrys individually, the Kellermans and the Perrys entered into a written agreement whereby auctioneers J. A. Dedman and William Casey were employed to sell it at public auction. This agreement contained a list of the items to be sold.

The sale was to be held November 30, 1963, and was extensively advertised. A few days before the sale the Kellermans told Dedman that 26 head of the cattle listed for sale were not partnership assets and they ordered him not to sell them. Dedman refused to accede to this demand and the Kellermans, on November 29, 1963, sought, ex parte, a restraining order against Dedman, Casey and the Perrys in Shelby Circuit Court. A restraining order was issued covering the 26 head of cattle in question and was served the same day. It is conceded that Dedman was erroneously advised by counsel (not an attorney of record herein) that he could proceed with the sale if he posted a $6000 bond. Dedman posted such a bond in the Shelby Circuit Court and held the sale.

On the morning of the sale the Kellermans and their attorney Ted Igleheart appeared and, according to the Perrys' witnesses, made certain statements, within the hearing of the crowd of potential buyers, which not only had a depressing effect on the bidding at the sale but caused about 50 per cent of the crowd to leave. For instance there is testimony that Mrs. Kellerman announced there would not be any sale; that a purchaser would involve himself in a lawsuit. The Kellermans' witnesses testified that the Kellermans did not try to stop the entire sale and any statements that were made by them were not within the hearing of the people attending the sale and that it was Dedman's subsequent remarks about why he was entitled to hold the sale that caused the crowd to lose its enthusiasm to bid on the property.

On this appeal the Kellermans have filed a partial record (CR 75.01) and a statement on points to be considered on appeal (CR 75.04). These points limit our review to (1) whether the award of $4600 to the Perrys was based upon speculative evidence, (2) whether the instructions were erroneous, (3) whether the trial court erred in overruling the Kellermans' motion for mistrial made after an attack of dizziness was suffered by the Perrys' and Dedman's attorney during his closing argument, and (4) whether the evidence was sufficient to support the award in favor of Dedman.

The Kellermans contend that the evidence introduced to establish that the Perrys sustained a financial loss is too conjectural and speculative to support the award of $4600. They rely principally on Union Cotton Co. v. Bondurant, 188 Ky. 319, 222 S.W. 66. However, we therein observed that loss of profits need be shown, not with absolute, but with reasonable certainty. In Essock v. Mawhinney, 3 Wis.2d 258, 88 N.W.2d 659, an action involving facts similar to those in the instant case, a comprehensive statement of the rule appears as follows:

"* * * it is now generally held that the uncertainty which prevents a recovery is uncertainty as to the fact of the damage and not as to its amount and that where it is certain that damage has resulted, mere uncertainty as to the amount will not preclude the right of recovery. This view has been sustained where, from the nature of the case, the extent of the injury and the amount of damage are not capable of exact and accurate proof. Under such circumstances all that can be required is that the evidence with such certainty as the nature of the particular case may permit lay a foundation which will enable the trier of facts to make a fair and reasonable estimate, and the plaintiff will not be denied a substantial recovery if he has produced the best evidence available and it is sufficient to afford a reasonable basis for estimating his loss. * * *.

"The requirement of certainty does not prevent the drawing of reasonable inferences from the facts and circumstances in evidence; and where a tort is of such a nature as to preclude the ascertainment of the amount of damages with certainty, it is enough if the evidence shows the extent of the damages as a matter of just and reasonable inference, although the result is only approximate."

Also see 22 Am.Jur.2d Damages, section 23, pages 42, 43.

Since there is testimony that many persons left after the aforementioned verbal exchange, that the general atmosphere at the sale was not then favorable to spirited bidding and that the property sold for less than it was worth, we believe the evidence in its totality adequately supports the finding that the Perrys sustained damage caused by the Kellermans.

As to the amount of damage, Dedman and Casey testified that in their opinions as experienced auctioneers the partnership property had a reasonable market value of at least $20,000. Perry stated it was worth substantially more than $20,000. This property sold for $15,722, or a difference of at least $4278. The Perrys' half interest in this would be $2139. At the same sale property belonging to the Perrys individually sold for $2010, while there was testimony it was reasonably worth $14,000, or a difference of $11,990. Thus there is testimony of a loss to the Perrys of $14,129, and it has probative value. However, it fails to disclose what portion of the reduced proceeds of the sale is attributable to the 26 head of cattle sold in violation of the restraining order.

It is next contended that instruction No. 3 is inconsistent with instructions Nos. 1 and 2 and that the Kellermans' proffered instruction should have been...