Cain v. Vollmer

AILSHIE, J. (After stating the facts.) — Two principal and decisive questions are presented to the court in this case. The first is, that an apprentice is not assignable, or, in other words, that a contract of apprenticeship may not be assigned by the master or employer. The second question is, that even if the contract was assignable, the damages claimed are too speculative, remote and contingent to be recognized or considered by a court. In the argument of these matters, counsel for appellant contends that the question of the right to collect damages in such a case has been definitely decided and settled by this court in McClain v. Association, 17 Ida. 63, 104 Pac. 1015, 25 L. R. A., N. S., 691, and that therefore the only real question to be considered is that of the assignment of the contract of apprenticeship. Addressing our attention, then, first, to this initiál contention made by appellant, we will see what rule as to the law of damages was settled in McClain v. Association. There the boy sued for the injury received and the resultant pain and suffering and attendant loss of earning capacity. In proving loss of earning capacity, he was allowed to produce what he called a “dope” book wherein he had a memoranda of his earnings from races in running “outside mounts.” It is now contended that this element of damage allowed in the other case is no more speculative than the damages claimed in this case. In this case the one seeking damages is a race-horse man — one who follows the races and enters his horses and, according to the record, depends on making his money by winning prizes in the various races. That there is a wide difference between the nature and character of damages asked in each of these cases cannot escape the attention of anyone. The one is direct; the other is proximate and dependent on innumerable secondary and intervening causes. The jockey earned a salary and certain sums for “outside mounts” — 168 — whether he won the race or not. This was his earning capacity. On the other hand, the jockey alone cannot win the race; he must have a fleet horse, — in the meanwhile other horses may develop that can outrun Cain’s horse, jockey and all, — other jockeys may in the meanwhile develop as much skill as Cain’s jockey, and upon the whole these imaginative profits may dwindle into real losses. Again, horseraeing is not an established business which can be estimated and counted upon to yield a permanent and reasonably certain income like most of the occupations and businesses out of which appellant’s cited cases arose. The business of horseracing and competing for prizes is not to be compared with an established right of fishery (Whaling Co. v. Alaska Packers, 138 Cal. 632, 72 Pac. 161), the profits of sheep-growing (Schrandt v. Young, 2 Neb. (Unof.) 546, 89 N. W. 607), or cattle-raising (Arkansas Land & Cattle Co. v. Mann, 130 U. S. 69, 9 Sup. Ct. 458, 32 L. ed. 854), or mining (Paul v. Cragnaz, 25 Nev. 293, 59 Pac. 857, 60 Pac. 983, 47 L. R. A. 540), or the established practice of a midwife (Wardle v. New Orleans City Ry. Co., 35 La. Ann. 202), or the profession of a music teacher (Baker v. Manhattan Ry. Co., 54 N. Y. Super. Ct. 394, 7 N. Y. St. Rep. 68), or a personal injury (Lund v. Tyler, 115 Iowa, 236, 88 N. W. 333), and the many other cases to that effect cited by appellant. Western Union Tel. Co. v. Crall, 39 Kan. 580, 18 Pac. 719, was an action against the telegraph company for the inaccurate transmission of a message by reason of which the plaintiff claimed to have lost anticipated gains and profits from a failure to be able to have his horse entered in certain racing and trotting contests. The court, after reciting the character of the evidence offered and the nature of damages sought, said: “The law excludes uncertain and contingent profits and also speculative profits and gains. No damages ought to have been allowed based upon the probability of the horse’s being able to win prize purses in trotting contests,” In support of this holding, the court cited Telegraph Co. v. Hall, 124 U. S. 444, 8 Sup. Ct. 577, 31 L. ed. 479. In the latter case the court considered at some length what consti — 169 — tutes speculative and remote damages for which no recovery ought to be allowed. In Smitha v. Gentry, 20 Ky. L. Rep. 171, 45 S. W. 515, 42 L. R. A. 302, the plaintiff sued for damages sustained by reason of the defendant wrongfully disclosing the hiding place of a fugitive for whose capture a reward had been offered and whose arrest the plaintiffs were planning to make. The defendant wrongfully and in violation of the confidence he had assumed disclosed the whereabouts of the fugitive and enabled the officers to arrest him, before the plaintiffs were able to perfect their capture of the fugitive. In considering the question as to whether the plaintiffs were entitled to recover damages, the court of appeals of Kentucky said: “But the basis of the recovery had in this case was evidently the loss by appellees of the reward which they expected to obtain for the arrest of the fugitive, and this seems to us to be at once too remote and too contingent an item of damage to sustain a recovery. It is uncertain whether the gain would have been realized. The chance is too remote to be estimated.” Another author in speaking of this class of damages has well said: “The fact that the plaintiff has suffered actual damage from the defendant’s conduct is not capable of legal proof, because it is not within the compass of human knowledge and therefore cannot be shown by human testimony. It depends on numberless unknown contingencies and can be nothing more than a matter of conjecture.” (1 Suth. Damages, sec. 30; Walker v. Goe, 3 Hurl. & N. 395.) So it is in the case at bar; the profits it is claimed appellant would have realized depend on so many intervening circumstances and contingencies, the unfavorable happening of any of which would dissipate these prospective gains. We are fully satisfied that prospective profits to a race-horse man for races that have never been run and race meets and associations that have never been held and against all contestants, is entirely too 'remote, uncertain and indeterminable to be allowed. If this were a case where appellant was seeking damages for the loss of a prize for a race in which his horse — 170 — had been entered and in which at the time of the injury he had turned the home stretch and was so in the lead that it could be said with reasonable certainty that he would have won the contest, then the damages would be direct and a recovery might be had, but that is not the case' before us. The conclusion we have reached as to the character of the damages sought renders it unnecessary for us to consider the other questions presented. The judgment should be affirmed, and it is so ordered, with costs in favor of respondents. Sullivan, C. J., concurs.