Sumlin v. Woodson
| Decision Date | 03 March 1947 |
| Docket Number | 4-8076,4-8077 (consolidated) |
| Citation | 199 S.W.2d 936,211 Ark. 214 |
| Parties | Sumlin v. Woodson |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Circuit Court, Third Division; J. Mitchell Cockrill, Judge.
Modified and Affirmed.
W W. Shepherd and Henry E. Spitzberg, for appellant.
Talley & Owen and Robert L. Rogers II, for appellee.
Ed. F McFaddin, Justice.
Appellee, Woodson, sued appellant, Sumlin, for unlawful detainer (§ 6035, et seq., Pope's Digest), and recovered damages which are challenged by this appeal.
Woodson owned a stock of groceries and fixtures and a building located at 716 West Third Street, Little Rock. He did not own the land on which the building was situated, but had a ground lease (paying therefor $ 20 per month), and had the right to remove the building. Woodson had operated a grocery store in the building from November, 1943, to March, 1944, when, for a cash consideration of $ 1,750, Woodson sold to Sumlin the stock of groceries and the fixtures, and also rented Sumlin the building for $ 27 per month. In October, 1944, Woodson demanded rent of $ 40 per month. After some negotiations Sumlin agreed to pay rent at $ 30 per month, and also to give Woodson and his family a discount of 20 per cent. on all groceries that they purchased from Sumlin. This rental agreement continued until November, 1945, when Woodson duly notified Sumlin to vacate the building on January 1, 1946.
Sumlin refused to vacate, and in January, 1946, Woodson, after giving statutory notice, brought this action of unlawful detainer. Sumlin gave cross bond, and retained possession of the building until the trial below (April 17, 1946), which resulted in a judgment for Woodson for (1) possession of the building; (2) rent at $ 60 per month from January 7, 1946; and (3) $ 300 as damages for unlawful detention. Sumlin has appealed to this court. Originally, there were two appeals, one based on the trial of April 17, 1946, and the other based on the refusal of the court to grant a new trial on the ground of newly-discovered evidence; but, with becoming candor, Sumlin's counsel have limited the issues on these appeals to two assignments. Appellant's counsel thus states his contentions:
We proceed, therefore, to ascertain whether the evidence is sufficient to support the jury's verdict for (a) rental value and (b) damages.
I. Rental Value. The jury fixed the rent at $ 60 per month from January 7, 1946, and appellant says there is no competent evidence to sustain such a figure.
Appellee testified that, beginning January 1, 1946, the amount he paid for ground rent was increased from $ 20 per month to $ 42 per month. So, the rental fixed by the jury ($ 60 per month) only netted appellee $ 18; whereas, before January 1, 1946, appellee (paying ground rent of $ 20 per month, and receiving from appellant $ 30 per month) had netted $ 10 per month, plus 20 per cent. discount on groceries. We mention this as tending to show that appellee was not receiving any appreciable net increase at the $ 60-per-month figure fixed by the jury for rent after January 1, 1946.
But the cogent evidence is found in the fact that the appellee testified that he had been offered $ 60 per month as rent for the building occupied by the appellant, and that $ 60 per month was a reasonable rent. Appellee did not have to qualify as an expert in matters of realty rentals in order to state what he had been offered as rent for the building. In Reeves v. Romines, 132 Ark. 599, 201 S.W. 822, Mr. Justice Hart, in discussing rental value and how it could be ascertained in an unlawful detention action, said:
"By rental value is meant, not the probable profits that might accrue to the tenant, but the value, as ascertained by proof of what the premises would rent for, or by evidence of other facts from which the fair rental value may be determined." (Italics our own.)
It is thus clear that "what the premises would rent for" is not the only way, but is at least one way, of ascertaining the rental value in an unlawful detainer action. The appellee stated what he had been offered as rent for the premises, and he was not disproved on the point. His testimony, with the other facts as previously mentioned, is sufficient to support the jury's verdict fixing the rent at $ 60 per month from January 7, 1946.
II. Damages for Loss of Profits. In addition to the rents, Woodson sought $ 500 as damages for the unlawful detention of the premises. The only element of damages that Woodson attempted to prove was the profit that he claimed he would have made from operating a grocery store in the building from the date of the filing of the action to the time of the trial; and the jury awarded him $ 300 for such damages. The appellee says that § 6050, Pope's Digest, lists "profits" as an item of damages; and this statute is urged by appellee to sustain the verdict for damages. To ascertain and determine the purpose and effect of § 6050, Pope's Digest, we need to consider it historically.
This section is § 5 of Act 8 of 1891. Prior to this Act of 1891 this court held that damages for the detention of the premises could not be recovered by the landlord in the unlawful detainer action. Some of the cases so holding are Keller v. Henry (1867), 24 Ark. 575; Walker v. McGill (1882), 40 Ark. 38; and Poe v. Bradley (1884), 44 Ark. 500. To overcome the effect of these cases, and to allow the landlord to receive his rents and damages in the unlawful detainer action, the Legislature enacted § 5 of Act 8 of 1891; and this section stated that the landlord could recover as damages in the unlawful detainer action:
"rent . . . up to the time of rendering judgment, . . ." or
"value of the use and occupation" of the premises; or
"the rents and profits thereof during the time the defendant has unlawfully detained possession, as the case may be, and damages for withholding the same, . . ."; or
"damages to which said plaintiff may be entitled on account of the forcible entry and detainer of such premises, . . ." This § 5 of Act 8 of 1891 was discussed by Mr. Justice Hughes in Richardson v. Harrell, 62 Ark. 469, 36 S.W. 573. [1] It must be remembered that the action for unlawful detainer lies for a farm, or a residence, or a store building, or other kind of property; and that the damages to the landlord are to be ascertained and determined, depending on the type of property, etc. It is therefore evident that the purpose of the 1891 act was to point out the methods of determining damages, and then to allow the court to direct the jury as to the measure of damages applicable to the particular case on trial: the main idea being that the landlord was entitled to the damages which he proved with reasonable certainty, as flowing directly and proximately from the unlawful detention.
Whether "profits" as used in § 6050, Pope's Digest, means (a) profits from the rents, or (b) profits from the building, or (c) profits from the business carried on in the building, is a question we do not now decide; because, in the case at bar, the plaintiff's loss of profits is entirely speculative. In each of the various cases decided by this court in which losses of profits have been allowed as damages, it has been expressly or impliedly stated that such profits must be capable of proof with reasonable certainty, and that no recovery can be had for loss of profits where it is uncertain or speculative whether there would ever have been any profits. See Black v. Hogsett, 145 Ark. 178, 224 S.W. 439. This is but another way of saying that damages cannot be based upon conjecture and speculation.
In Harmon v. Frye, 103 Ark. 584, 148 S.W. 269, in speaking of loss of profits as an element of recoverable damages, Mr. Justice Kirby, speaking for this court, said:
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