William C. Barry, Inc. v. Baker, 3087.

• Decision Date: 25 February 1936
• Docket Number: No. 3087.,3087.
• Citation: William C. Barry, Inc. v. Baker, 82 F.2d 79 (1st Cir. 1936)
• Parties: WILLIAM C. BARRY, Inc., v. BAKER.
• Court: U.S. Court of Appeals — First Circuit

82 F.2d 79 (1936)

WILLIAM C. BARRY, Inc., v. BAKER.

No. 3087.

Circuit Court of Appeals, First Circuit.

February 25, 1936.

William B. Mahoney, of Portland, Me., for appellant.

John D. Clifford, Jr., of Lewiston, Me. (Clifford & Clifford, of Lewiston, Me., on the brief), for appellee.

Before BINGHAM, WILSON, and MORTON, JJ.

BINGHAM, Circuit Judge.

This action was brought September 14, 1934, by the plaintiff, a resident and citizen of Maine, against the defendant, a Massachusetts corporation having its principal place of business in that state, to recover damages which he sustained by reason of a collision between his truck and the defendant's tractor, with a semitrailer attached, driven by its employee, Stairs, on a highway just north of the village of Gray in the state of Maine. There was a jury trial and a verdict for the plaintiff for $10,831.60, upon which judgment was entered and this appeal taken.

The evidence showed that at about 12 o'clock on the night of January 2, 1934, the plaintiff, having left the village of Gray, was driving north with his empty truck toward Auburn, Me., accompanied by his helper, Fortin. The defendant's tractor and trailer, driven by Stairs, was traveling south from Auburn towards Portland. About two and a half miles north of Gray the two met and came together in such a way that the front of the defendant's tractor hit the left front of the truck and the two machines were locked together at an angle, damaging the truck and the plaintiff. The question of liability turned on which side of the road each machine was at the moment of collision.

The assignments of error relied on relate to the admission of certain evidence and the refusal of the court to allow certain questions to be asked a witness on cross-examination on the ground that they related to new matter not brought out on direct examination.

In the first assignment of error the defendant complains of the admission of certain testimony offered by the plaintiff for the purpose of showing loss of earning capacity due to the accident, the defendant contending that it was evidence of profits earned by the plaintiff in the business of buying, hauling, and selling potatoes.

It appeared from the plaintiff's testimony that in the fall of 1933 and up to the time of the accident he was engaged in buying potatoes of farmers in Aroostook county, Me., and transporting them to Lawrence, Mass., and surrounding towns, where he sold them to a number of steady customers who were storekeepers. For these services he charged his customers 90 cents a bag in addition to the amount he paid per bag for the potatoes. It made no difference what the cost of the potatoes were to him, for, when he delivered a bag to a customer, he received in addition to such cost 90 cents. The potatoes weighed 100 pounds per bag, and on each trip from Aroostook county to Massachusetts he hauled 100 bags. He made two trips a week as a rule and sometimes three. This gave him a gross income of $180 a week and some weeks $270. From this he deducted the expenses of his helper, gas, oil, and servicing of his truck, etc., amounting to $80 a week; and he testified that he was "putting away a hundred dollars a week" when making two trips and when making three "would have that much to the good" — $80 more.

In the above computation he deducted nothing for depreciation of the truck or its cost. But it appeared from the testimony that he bought the truck in August, 1933, for between twelve and thirteen hundred dollars; had used it in his business of hauling potatoes from Labor Day, 1933, down to the time of the accident, January 2, 1934, when it had been run about 18,- 000 miles; and he estimated its value just before the accident at between nine hundred and nine hundred and fifty dollars, showing a depreciation of some three hundred dollars at that time. Practically the only money tied up in the business was the cost of the truck, which the jury had before it.

While the District Judge in making the ruling complained of used the word "profit," it is evident from the colloquy that took place during the introduction of this testimony that the earning capacity of the plaintiff before the accident and the amount it was diminished by reason thereof was the basis of the ruling. For instance, at one point the court said: "I have allowed you to show that he was able, and he says he did earn, one hundred dollars a week at the time of the accident. Now I will allow you to show how much that earning capacity was diminished after and on account of the accident. Don't get into the question of profits from the potato business." (Italics supplied.)

It is, of course, the general rule that it is the loss of capacity to earn that should be considered as an element of damage in a tort case — not the profits of a business. It is evident in this case that no money was invested in a commercial sense from the use of which profits might or might not be made; that the 90 cents a bag which the plaintiff received for his services in hauling the potatoes was not such profit. It made no difference to him what the price of potatoes in Aroostook county or the market in Lawrence and vicinity was. He received 90 cents a bag for the hauling which, after the deduction of the necessary expenses, compensated him for his services in transporting and delivering the potatoes. By doing this the earning capacity of the plaintiff before the accident was shown. We think the ruling, under the circumstances disclosed, was unobjectionable and the testimony admissible.

After giving his version of how the collision took place, the plaintiff said: "And of course then I was pinned up with the steering wheel which struck me in the chest here; and then all at once the driver of the other truck came over to see me. Well, he says — ." Counsel for the defendant here objected to the introduction in evidence of what the defendant's driver said, on the ground that the action was not against the truck driver...