Seymour v. House

• Decision Date: 09 September 1957
• Docket Number: No. 2,No. 45648,45648,2
• Citation: 305 S.W.2d 1
• Parties: Elmo L. SEYMOUR, Respondent, v. Hubert HOUSE, Appellant
• Court: Missouri Supreme Court

Page 1

305 S.W.2d 1

Elmo L. SEYMOUR, Respondent, v. Hubert HOUSE, Appellant.

No. 45648.

Supreme Court of Missouri, Division No. 2.

Sept. 9, 1957.

Paul C. Sprinkle, Sprinkle, Knowles & Carter, Kansas City, for appellant.

Brandom & Brandom, by Smith F. Brandom, Kansas City, for respondent.

EAGER, Presiding Judge.

This is a suit for personal injuries sustained in an automobile collision in Kansas City on June 12, 1954. Plaintiff recovered a verdict and judgment in the sum of $10,000 and defendant has appealed, after the overruling of his after-trial motions. Liability is not contested here; defendant drove his car into the rear of plaintiff's car which was stopped at an intersection. The injury claimed, of which there was substantial evidence, was a 'whip-lash' injury to plaintiff's neck. The only questions raised here concern damages; they are, more specifically, as follows: (a) error in the admission of evidence to show supposed special damages in loss of earnings or profits; (b) error in plaintiff's damage instruction; and (c) alleged excessiveness of the verdict. We shall not reach the last point, but discuss the first two.

Plaintiff testified that he was and had been in the concrete construction business; most of his business apparently came from taking subcontracts from general contractors for concrete work. The number of his employees varied from time to time; he testified first that at the time of the accident he was employing approximately 10 men, and later said, probably 10 to 15; the number of employees necessarily varied with the volume of work on hand. Plaintiff obtained the jobs, dealing with the contractors and with others, supervised all the work, and ran the business generally; in addition to this, he testified that prior to his injury he worked regularly as a cement finisher, and actually was the 'number one' finisher. This means, as we understand, that if only one finisher was required at any given time, plaintiff did that work himself, but other finishers were more or less regularly employed and he worked with them; often two or more worked on the same job. Finishing concrete involved tamping the poured concrete with a heavy 'jitterbug,' leveling it with a long-handled 'bull-paddle,' and then getting down on knee-boards and giving the final smoothing with a steel trowel. Plaintiff further testified that since his injury he had been wholly unable to work as a finisher, although he had, almost from the time of the injury, performed other work in supervising, dealing with contractors, taking on jobs, and generally running the business.

The evidentiary controversy here arises principally over the admission of evidence to the effect that plaintiff had paid $9,035.60 from June 16, 1954, to December 30, 1955, to one Edward Bryant as a cement finisher on various jobs. Plaintiff testified that this man took his place after the injury as the number one finisher, but it was established that Bryant had previously been in his employ for some time as a finisher. The objections were that this evidence of a supposed loss or damage was highly speculative, that 'it depends on' how many jobs the plaintiff had, how many men he had working, how much time plaintiff himself spent in supervision, and that there were so many 'angles' involved that the offered proof would only tend to prejudice the jury. Considerable colloquy took place, and the court very understandably indicated that the situation was confusing; the theory of plaintiff was that Bryant had taken his place as cement finisher and cement foreman (as plaintiff testified); that some other man had taken Bryant's place, and jobs had shifted up and down the line, but that Bryant thus became (instead of plaintiff) the number one finisher who worked steadily whenever there was any of that work to do, acting also as the finisher foreman. At the time of the injury plaintiff apparently had three other finishers working, but he insisted that his own incapacity meant that thereafter there was at least one extra person on the payroll. Bryant's wages had been raised when he moved up. It is perfectly obvious that the number of finishers needed and used varied from time to time during the period of nearly two years between the injury and the trial. The court refused (and properly) to permit plaintiff to answer a question asking whether the figure of $9,035.60 was 'the amount * * * that you would have earned and saved to yourself on that job'; however, such was plaintiff's theory, as indicated by his total testimony. Some of plaintiff's contracts did not involve finishing concrete, but perhaps only a fourth, or less. Plaintiff could not say that he had had any 'less number of contracts' since the accident than before.

The situation is further complicated by the fact that the business was conducted in the name of plaintiff's wife, Jewell Seymour. The evidence indicated that this was a 'straw' transaction, apparently effected to avoid union entanglements, due to the fact that plaintiff both ran the business and worked in it as a finisher. Plaintiff had a power of attorney and drew all checks; his wife testified that she knew nothing about the business, took nothing out of it, wrote no checks, had put no money into it, and, in effect, had nothing to do with the business. She had a job of her own at Montgomery Ward's. At one point, however, plaintiff testified that his wife got 'any profits in the company,' but that he thought that anything she would get would be 'partially mine.' Plaintiff further testified that when there was money, and he needed money, he took it; that he was paid no regular salary before or after the injury, but that he paid himself a salary part of the time; that when he took a salary, returns were made for withholding and social security taxes; business records were kept, and plaintiff and his wife made joint income tax returns, but none of these were produced. There was a total absence of evidence of the amounts which plaintiff had actually received as compensation, either before or after the injury, and of the profits of the business, either before or after the injury; plaintiff was permitted to testify that the profits had been lessened because he would have earned the wages which he had paid out, as discussed, and because one less man would have been employed.

The injury to plaintiff's neck consisted primarily of a swelling of soft tissues around certain nerve roots, injury to cartilaginous and ligamentous areas, and a consequent limitation of motion of the neck and pain upon extreme motion.

Ordinarily a plaintiff claiming personal injuries may prove a resulting loss of time, and a consequent loss of personal earnings or wages as an item of special damages. 15 Am.Jur., Damages, Sec. 88, p. 498; Liles v. Associated Transports, Inc., 359 Mo. 87, 220 S.W.2d 36; Fellows v. Kansas City Public Service Co., Mo.App., 270 S.W.2d 108. Generally, this is limited to earnings which are the result of personal effort. 15 Am.Jur., Damages, Sec. 88, p. 498. Also, one may generally recover for a loss of future earnings as included in a recovery for impairment of his earning capacity, provided such is shown with reasonable certainty, and is not speculative in character. 15 Am.Jur., Damages, Sec. 88, p. 498; 25 C.J.S. Damages, Sec. 38, p. 511. In order to recover for a loss of past earnings as special damages, the evidence as to the value thereof must be reasonably certain, so as to eliminate mere speculation. Fishang v. Eyermann Contracting Co., 333 Mo. 874, 63 S.W.2d 30, 36; Burns v. Kansas City Public Service Co., Mo., 273 S.W.2d 184; Sinclair v. Columbia Telephone Co., Mo.App., 195 S.W. 558; Bollinger v. American Asphalt Roof Corp., 224 Mo.App. 98, 19 S.W.2d 544. Or, as sometimes expressed, the evidence must afford a basis for a reasonable estimate of the amount of the loss. 15 Am.Jur., supra, Sec. 90, p. 500. A distinction is almost universally made between a loss of personal earnings and the loss of business profits. Pryor v. Metropolitan Street Ry., 85 Mo.App. 367, 372; Bollinger v. American Asphalt Roof Corp., 224 Mo.App. 98, 19 S.W.2d 544; Flintjer v. Kansas City, Mo.App., 204 S.W. 951; 25 C.J.S., Damages, Sec. 86, p. 618.

It has often been said that the plaintiff in a personal injury action may not recover, as special damages, a loss of business profits, for the reason that such profits are wholly speculative, or because such profits arise, in whole or in part, from elements other than his personal efforts and earnings. Pryor v. Metropolitan Street Ry., 85 Mo.App. 367, 372; Flintjer v. Kansas City, Mo.App., 204 S.W. 951; 12 A.L.R.2d 291, note. In many such cases all evidence of loss of profits has been held inadmissible. 12 A.L.R.2d 296, note. In the facts of those cases, generally, the elements of invested capital, employed labor, and other variable factors in the plaintiff's business predominated over the element of personal service and earnings of the plaintiff himself. In other cases, where the element of personal service predominated and the elements of capital, labor, etc., were not so material, it has been held that evidence of a loss of profits may generally be shown as an aid in determining the pecuniary value of plaintiff's loss of time or impairment of earning capacity. 12 A.L.R.2d 297-299, note; 25 C.J.S., Damages, Sec. 86, p. 618; Fishang v. Eyermann Contracting Co., 333 Mo. 874, 63 S.W.2d 30; Laycock v. United Railways Co. of St Louis, Banc, 290 Mo. 344, 235 S.W. 91, 95; Sinclair v. Columbia Telephone Co., Mo.App., 195 S.W. 558; Stewart v. St. Louis Public Service Co., Mo.App., 233 S.W.2d 759; Northcutt v. St. Louis Public Service Co., Mo.App., 48 S.W.2d 89. Probably, the true rule is that evidence of loss of profits is admissible where it would have a material bearing on the actual value of plaintiff's own services and work in the business and the pecuniary value of his lost time, but not as proof of a distinct element of...