Smith v. Corsat, 743

• Decision Date: 19 July 1963
• Docket Number: No. 743,743
• Court: North Carolina Supreme Court
• Parties: Lester B. SMITH v. Andre Marcel CORSAT.

Page 894

131 S.E.2d 894

260 N.C. 92

Lester B. SMITH v. Andre Marcel CORSAT.

No. 743

Supreme Court of North Carolina.

July 19, 1963

Barber & Holmes, Pittsboro, Jordan, Wright, Henson & Nichols, and Karl N. Hill, Jr., Greensboro, for plaintiff.

Ike F. Andrews, Siler City, and Simms & Simms, Raleigh, for defendant

MOORE, Justice.

Plaintiff assigns as error the denial of his motion to nonsuit defendant's counterclaim.

The collision occurred shortly after midnight on 18 November 1961 on U. S. Highway 64 in Siler City. Plaintiff was driving his Mercury Comet station wagon eastwardly, and defendant was operating his Volkswagen panel truck westwardly. According to plaintiff's account of the accident, defendant made a left turn off the highway into the driveway of Ruth's Drivein, which is on the south side of the highway, and then suddenly and without warning turned back into the highway in the path of plaintiff's vehicle which was so near that collision was inevitable. On the other hand, defendant testified that he was driving in a straight line at a fairly good rate of speed, 35 to 40 miles per hour, in the right-hand or north lane of the highway, 'completely the right lane,' he suddenly saw lights as though lights had been turned on in a moving vehicle, these lights came over into the defendant's lane and blinded him, and they were so near he 'could do nothing' to avoid collision.

Plaintiff relies on contradictions and discrepancies in defendant's testimony and certain physical evidence as a basis for his motion to nonsuit the counterclaim. Contradictions and inconsistencies in testimony do not justify nonsuit where the evidence in the light most favorable to complainant makes out a prima facie case. Redden v. Bynum, 256 N.C. 351, 123 S.E.2d 734. Defendant alleges that plaintiff's negligence proximately caused the collision and resulting damages in that he failed to yield one-half of the highway (G.S. § 20-148), failed to give timely warning of his movement to the north side of the highway, and failed to keep a reasonable lookout. Defendant's evidence tends to support these allegations. The court properly overruled plaintiff's motion for nonsuit.

Defendant alleges that he is 47 years of age, 'is the owner and general manager of A. M. Corsat Records & Appliances with stores in Jacksonville, Florida; Atlanta, Georgia; and Norfolk, Virginia; that this business requires that he travel a great deal through the Southeastern part of the United States in order that he may supervise and manage these stores; that because of the negligent acts of plaintiff in causing the * * * collision, the defendant has been unable to devote his time, talent and energy to the operation of his business and therefore has suffered great financial loss; that for the period of December 1, 1961, through March 31, 1962, there was a decrease in gross sales * * * in the amount of $28,229.12 from the same period of 1960-'61; that * * * it has been necessary to employ additional help * * *; that in spite of this additional help, the defendant's business is still suffering and will continue to suffer decreases in profit due to the loss of services of the defendant. ' Defendant prays for a recovery of $10,000 for 'loss of business,' in addition to other damages.

Over plaintiff's objection, defendant was permitted to introduce evidence that his net income for each of the years 1959, 1960 and 1961 was 'about $10,000,' and for 1962, nothing. Plaintiff contends that the court erred in admitting this and related evidence for the reason that the net profits from defendant's business resulted from a combination of inconstant factors, such as capital, the labor of employees, other variables, and defendant's services, and that the sources of profit are too contingent and speculative for net profits to serve as an aid in the determination of defendant's damages.

The salient facts which determine the class or category of cases to which this belongs are: Claimant suffered personal injuries for which he seeks compensation. His injuries impair his capacity to engage in his occupation. He is self-employed and receives no salary or wages. His earnings consist of the net profits from the business enterprise owned and operated by him. He gives his full time to the business, and capital is employed and the labor of others used to some extent in the business.

No case has been cited and no decision has been found in our research where the exact question at bar has been considered in this jurisdiction. The nearest approach is Wallace v. Western N. C. Railroad, 104 N.C. 442, 10 S.E. 552. Wallace, a carpenter, received personal injuries while riding on a train. One of the assignments of error related to testimony of his earnings before the accident. The Court said:

'An inquiry, * * * as to his earnings in his business is competent. It is not itself a rule of damages. There are many other elements of damages to be considered, and, 'upon all the circumstances, it is for the jury to say what is a reasonable and fair compensation which the defendant should pay the plaintiff, by way of compensation, for the injury he has sustained.' * * *.

'In Nash v. Sharp[e], 19 Hun. 365, PRATT, J., says: 'Evidence of the nature and extent of the party's business, or how much he was earning from his business or realizing from fixed wages, is proper upon the question of damages.'

''The age and occupation of the injured person, the value of his services, that is, the wages which he has earned in the past, whether he has been employed at a fixed salary or as a professional man are proper to be considered.' 2 Wood Railway 1240, and cases there cited.'

In general terms, the law in this jurisdiction, relating to the recovery of damages for personal injury resulting from negligence is that the injured party is entitled to recover the present worth of all damages sustained in consequence of the tort. These are understood to embrace indemnity for loss of time, or loss from inability to perform ordinary labor, or capacity to earn money, which are the immediate and necessary consequences of his injury. The age and occupation of the injured person, the nature and extent of his employment, the value of his services and the amount of his income at the time, whether from fixed wages or salary, are matters properly to be considered by the jury. Owens v. Kelly, 240 N.C. 770, 84 S.E.2d 163; Mintz v. Atlantic Coast Line R. R., 233 N.C. 607, 65 S.E.2d 120; Dickson v. Queen City Coach Co., 233 N.C. 167, 63 S.E.2d 297; Fox v. Asheville Army Store, 216 N.C. 468, 5 S.E.2d 436; Ledford v. Valley River Lumber Co., 183 N.C. 614, 112 S.E. 421. In personal injury actions great latitude is allowed in the introduction of evidence to aid in determining the extent of the damages, and as a broad general rule any evidence which tends to establish the nature, character and extent of injuries which are the natural and proximate consequences of the tortfeasor's acts is admissible in such actions, if otherwise competent. Owens v. Kelly, supra. In determining future earning capacity, prior earnings are admissible in evidence if there is a reasonable relation between past and probable future earnings. Fox v. Asheville Army Store, supra; Stansbury: North Carolina Evidence, § 101, p. 193.

It is a generally accepted proposition that evidence of the profits of a business in which the injured party in a personal damage suit is interested, which depend for the most part upon the employment of capital, the labor of others, and similar variable factors, is inadmissible in such suit and cannot be considered for the purpose of establishing the pecuniary value of lost time or diminution of earning capacity, for the reasons that a loss of such profits is not the necessary consequence of the injury and such profits are uncertain and speculative. In such circumstances loss of profits cannot be considered either as an element or the measure of damages. In such case, the measure of damages is the loss in value of the injured person's services in the business. 'Profits' and 'earnings' are not synonymous. Loss of personal earnings is properly considered as an element or measure of damages. Hendler v. Coffey, 278 Mass. 339, 179 N.E. 801 (1932); Flintjer v. Kansas City, 204 S.W. 951 (Mo.App.1918); Singer v. Martin, 96 Wash. 231, 164 P. 1105 (1917); Mahoney v. Boston Elevated R. Co., 221 Mass. 116, 108 N.E. 1033 (1915); 25 C.J.S. Damages § 86, p. 618; 15 Am.Jur. Damages, § 155, pp. 571-2. See also 12 A.L.R.2d, Anno.--Damages--Plaintiff's Business Profits, pp. 288, 294, 296. (In this Annotation the entire question is fully discussed and cases from many jurisdictions are cited and abstracted.)

However, where the business is small and the income which it produces is principally due to the personal services and attention of the owner, the earnings of the business may afford a reasonable criterion to the owner's earning power. Bell v. Yellow Cab Co., 399 Pa. 332, 160 A.2d 437 (Pa.1960); 15 Am.Jur., Damages, § 96, p. 506; 12 A.L.R.2d 292. In cases where it is not established that the employment of capital, the use of labor of others, or similar variable factors were predominant in the injured person's business or determinative, for the most part, of the receipts realized, it is held that evidence of profits, in a restricted sense, or income (even if one or more of the factors mentioned were present and influential) may be used for the purpose of aiding in establishing a standard for the calculation of damages, if it conforms to the requirements of proximate cause and certainty. It has some bearing upon the question of damages, whether of loss of time or loss or diminution of earning capacity. Such evidence furnishes as safe a guide for the jury, under proper cautionary instructions, as may be found, in the assessment of damages, and becomes useful in helping to determine the pecuniary value of loss of time or imparirment of earning...