Sinclair v. Columbia Telephone Co.

• Decision Date: 21 May 1917
• Docket Number: No. 12432.,12432.
• Citation: 195 S.W. 558
• Parties: SINCLAIR v. COLUMBIA TELEPHONE CO.
• Court: Missouri Court of Appeals

195 S.W. 558

SINCLAIR v. COLUMBIA TELEPHONE CO.

No. 12432.

Kansas City Court of Appeals. Missouri.

May 21, 1917.

Appeal from Circuit Court, Boone County; D. H. Harris, Judge.

"Not to be officially published."

Action by Charles Sinclair against the Columbia Telephone Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Gillespy & Conley, of Columbia, for appellant. Harris & Price, of Columbia, for respondent.

ELLISON, P. J.

This action was instituted to recover damages for personal injuries. The judgment in the trial court was for the plaintiff.

One of defendant's telephone wires had become loosened so that it sagged down where it crossed over a public road to such extent that it obstructed travel. Plaintiff was driving a buggy along such road and did not observe the wire overhead. It caught the top of his buggy, this frightened the horse, the buggy was overturned, and plaintiff was thrown out upon the ground and received serious injury. In addition to an allegation of general damages, plaintiff alleged that he had expended $250 for medicine and medical attention, and that his buggy and harness were damaged $25. It was further alleged by plaintiff that he was engaged in farming and in buying, feeding, and selling stock, and that by reason of his injuries he will be greatly hindered in the conduct of said business, and by reason thereof his earning capacity has been seriously and permanently impaired.

There is a great deal in defendant's statement not found in points of error complained of in assignments and brief in this court. It is only the latter, of course, that we should notice.

First, it is said that the court committed error in admitting evidence in plaintiff's behalf of profits which he made in his business of dealing in live stock. It is not disputed but that profits from business are a legitimate item of damages in cases of this nature, but it is insisted that these were from the nature of the business too uncertain; that they depended too largely on the state of the weather or market and plaintiff's business ability. It is stated by the St. Louis Court of Appeals in Sloan v. Paramore, 181 Mo. App. 611, 625, 164 S. W. 662, 666, that:

"Probable profits in a business form a legitimate element of damages, where their extent can be shown with reasonable certainty. * * * But though such be true, where such profits are purely speculative, contingent, and conjectural, no recovery can be had with respect to them."

The same statement is made in substance by the Springfield Court of Appeals in Morrow v. Railroad, 140 Mo. App. 209, 123 S. W. 1034.

So the only question in this case is whether the evidence in behalf of plaintiff as to loss of profits showed such loss with reasonable certainty. It was shown that he was an active, industrious man; that he had been engaged in buying, feeding, and selling live stock for several years prior to his injury; and that his average annual profits had been from $1,500 to $1,800 per year. We think this was sufficient showing for consideration by the jury. It was not an absolute essential that plaintiff should have kept books, showing with exactness the detail of his former business and the exact balance in his favor. A rule of that severity would exclude loss of profits from all save those who conducted business through the assistance of bookkeeping. In this case it may be that what has been discussed by counsel as a loss of profits was finally considered to be embodied in plaintiff's earning capacity, for no instructions specifically as to profits were offered by either side. But we have referred to the matter as it has been presented and have confined ourselves to the only grounds of objection stated by defendant when the evidence was offered, viz, that the profits...