Williams v. Bone, 7930

CourtUnited States State Supreme Court of Idaho
Writing for the CourtKEETON; PORTER
Citation74 Idaho 185,259 P.2d 810
Docket NumberNo. 7930,7930
Decision Date30 June 1953

Daniel A. Quinlan, Lewiston, for appellant.

Leo McCarty and Clifton Y. Creelman, Lewiston, for respondent.

KEETON, Justice.

Plaintiff, respondent here, operated a taxicab business in the City of Lewiston; and owned and maintained a neon sign, advertising his business, attached to a building near the place where the cabs assembled and were dispatched to answer calls. A dispute arose between the plaintiff and defendant as to the right of plaintiff to maintain the sign. A part of the building to which the sign was attached was occupied by defendant as a lessee. Defendant claimed plaintiff had no right to maintain the sign; that it interfered with the view of an advertisement maintained by him. There was some controversy and discussion between the parties regarding the matter. On October 11, 1951, defendant, after plaintiff refused to remove his neon sign, removed it, and stored it in the building where defendant's business was conducted. Plaintiff in his complaint claimed the value of the sign so converted by defendant to be $400 and due to its removal his taxicab business was damaged to the extent of $500 a month; also claimed that the removal of the sign was maliciously done and asked punitive damages in the sum of $1,000.

A general demurrer to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action was overruled. Defendant answered and alleged that he held a valid lease to the premises to which the sign was attached; that he had requested and demanded that plaintiff remove the sign from the building, which demand was refused and 'That upon the continued refusal and failure of the plaintiff to remove the said sign from the outside wall of the premises, the defendant's agents removed it and placed it in the basement of the leased premises * * *.' That at all times after its removal the sign was subject to the order of plaintiff; that he could have secured possession of it at any time. Plaintiff claimed he had the right to maintain the sign by permission from the owner of the building to which it was attached.

A trial was had, the jury assessed damages against defendant in the sum of $200, the value of the sign; loss of business and earnings because of its removal, $500; exemplary and punitive damages, $750. Judgment was entered. Defendant appealed. The parties will be referred to as they appear in the trial court.

In assignment of errors defendant (appellant here) contends that the general demurrer to the complaint should have been sustained; that the evidence is insufficient to support the judgment in the amount of $500 for loss of business earnings; that the evidence is insufficient to support the judgment for $750 exemplary damages; that the verdict of the jury was given under the influence of passion and prejudice, and in disregard of the evidence.

The complaint alleged ownership of the neon sign to be in plaintiff and in substance that it was converted and appropriated by defendant; alleged the claimed value of the sign; and further alleged other items of damages sustained due to the actions of defendant.

We are of the opinion that the ultimate facts were sufficiently alleged, and that the general demurrer was properly overruled.

To prove loss of business subsequent to the removal of the neon sign, plaintiff submitted bank statements of gross business income for a period of six months prior to the time the sign was removed, and for a period of six months subsequent thereto. There was no testimony proving net loss, or net decrease in income, if any. The gross loss in receipts of plaintiff, according to his testimony, for six months following the removal of the sign by defendant amounted to the sum of $254.30 per month.

Defendant in his brief concedes that the jury, by its verdict, must have considered the net loss to be about one-third of the gross income of the business.

If there is any authority to the effect that the jury could fix compensatory damages from evidence showing only gross income without deduction of expenses and costs of operation, from which the net profits or decrease in net income could be determined, it has not been called to our attention.

The compensatory damages suffered by plaintiff, if any, are limited to the pecuniary loss due to the wrongful acts of defendant.

Where a regular and established business is injured, interrupted or destroyed by the wrongful acts of another, the measure of damages, when and if recoverable, is the net loss and not diminution in gross income. Hence in the case before us, if the loss of business was occasioned by the acts of defendant, the measure of damages would be the loss of profits, if any, resulting from such wrongful act.

There is a distinction between the measure of proof necessary to establish the fact that a party has sustained some damage and the measure of proof necessary to enable the jury to fix the amount. Roseland v. Phister Manufacturing Co., 7 Cir., 125 F.2d 417, 139 A.L.R. 1013.

In Nelson v. Oversmith, 69 Idaho 1, 201 P.2d 747, this Court held that damages could not be predicated on proof of gross receipts of the business, and that such evidence, standing alone, is insufficient proof of damages.

For other authorities see St. Germain v. Bakery, etc., Union, 97 Wash. 282, 166 P. 665, L.R.A.1917F, 824; 17 C.J. 785, Sec. 112; 25 C.J.S., Damages, § 90, Page 631; Lide v. Birmingham Electric Battery Co., 22 Ala.App. 336, 115 So. 689; Southern Properties v. Carpenter, Tex.Civ.App., 50 S.W.2d 876; Krikorian v. Dailey, 171 Va. 16, 197 S.E. 442; Johnson Oil Refining Co. of Illinois v. Elledge, 175 Okl. 496, 53 P.2d 543; Adams v. Building Service Employees International Union, 197 Wash. 242, 84 P.2d 1021, Syl. 4; De Palma v. Weinman, 15 N.M. 68, 103 P. 782, 24 L.R.A.,N.S., 423; Nichols v. Anderson, 43 N.M. 296, 92 [74 Idaho 189] P.2d 781; Schultz v. Wells Butchers' Supply Co., 151 Wash. 382, 275 P. 737.

Further, damages for loss of anticipated earnings or profits must be shown with reasonable certainty. Harrington v. Hadden, 69 Idaho 22, 202 P.2d 236; Boise Street Car Co. v. Van Avery, 61 Idaho 502, 103 P.2d 1107; Megert v. Bauman, 206 Okl. 651, 246 P.2d 355. No such showing was made here.

To permit the jury to fix the amount of damages from a showing only of gross receipts is so uncertain and speculative as to what the loss might be, if any, that it is not a proper criterion in fixing the loss.

The jury and this...

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37 cases
  • Smith v. Wade
    • United States
    • United States Supreme Court
    • 20 Abril 1983
    ...have explained at length why we think that the policies of that statute call for our holding today. 1. See, e.g., Williams v. Bone, 74 Idaho 185, 259 P.2d 810, 812 (Ida.1953); Jolley v. Puregro Co., 94 Idaho 702, 496 P.2d 939, 946 (1972 Ida.); Cays v. McDaniel, 204 Or. 449, 283 P.2d 658 (19......
  • Cox v. Stolworthy, 10906
    • United States
    • United States State Supreme Court of Idaho
    • 27 Abril 1972
    ...was ordered as to the amount owed as compensatory damages. Summerfield v. Pringle, 65 Idaho 300, 144 P.2d 214 (1943); Williams v. Bone, 74 Idaho 185, 259 P.2d 810 (1953); Driesbach v. Lynch, 74 Idaho 225, 259 P.2d 1039 (1953); and White v. Doney, 82 Idaho 217, 351 P.2d 380 (1960), represent......
  • Massey-Ferguson Credit Corp. v. Peterson
    • United States
    • United States State Supreme Court of Idaho
    • 24 Diciembre 1980
    ...of the law, and the power to give such damages should be exercised with caution and within the narrowest limits.' Williams v. Bone, 74 Idaho 185, 189, 259 P.2d 810, 812 (1953). This court will sustain an award of punitive damages only when it is shown 'there has been an injury to the plaint......
  • Village of Peck v. Denison, 10159
    • United States
    • United States State Supreme Court of Idaho
    • 27 Enero 1969
    ...court has stated that an award of punitive damages must bear a reasonable relationship to the actual damages awarded. Williams v. Bone, 74 Idaho 185, 259 P.2d 810 (1953); Driesbach v. Lynch, 74 Idaho 225, 259 P.2d 1039 (1953); White v. Doney, 82 Idaho 217, 351 P.2d 380 (1960). In the case a......
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