Central of Ga. Ry. Co. v. Weaver

McCLELLAN, J.— (1) This action by Weaver, appellee, against the railway company, was submitted to tbe jury on tbe issues made by tbe fourth count, and a verdict for $500 damages was returned. Tbe wrong-complained of was tbe delay of tbe carrier in transporting tbe plaintiffs shows, and its attached people and performers, from Opelika to Alexander City, in this state, at which latter place tbe plaintiff bad previously engaged with tbe Tallapoosa County Fair Association to give performances and to afford attractions and amusements; be being entitled to* charge admissions for certain of bis attractions. Tbe fourth count claims damages for the loss of the “use of tbe said carnival outfit and people” for one entire day, and alleges that tbe value of such lost use was $750. It is averred .in count 4 that “tbe defendant knew tbe purpose for which the plaintiff was moving said show outfit” to* Alexander [39] City. There was no ground of the demurrer testing the sufficiency of the allegation with respect to the carrier’s knowledge, at the time the contract of carriage was effected, of the special circumstance on which the plaintiff would predicate the carrier’s liability for the special damages claimed for the use of the outfit for one day. The stated averment of knowledge of the plaintiff’s purpose on the part of the carrier was too general, too much a conclusion of the pleader, to avoid the effect of aptly grounded demurrer. The application is well stated in 3 Hutchinson on Carriers, § 1369. Knowledge of the carrier of the general use to which the property may be put will not always suffice to impose liability (for delay in transportation) for loss of the value of the use or of profits or of rental value. (2) The only testimony bearing on this matter of the value of the use described is that given by the plaintiff himself. It affirmatively appears from his testimony that the value — of the lost use of the outfit and the people for one day at Alexander City — he ascribed to the loss of such use for that day was a pure speculation on his part. ' He testified that the use on that occasion, one day, was $1,000. On the cross-examination he testified: “The use of my shows was fixed on the idea of what I could have made Avith it that day, if I had been there, when I said $1,000. They could not have been used in any other Avay, except to sIioav there. All that Avas on the idea of the people patronizing it and taking in admission fees, and it was on that idea that I said the use of it was worth $1,000, based upon what I would have made, if-1 had been there, on account of the people patronizing me; and taking in admission fees.” [40] Other statements by him further confirm the conclusion announced that his testimony on this matter was purely speculative. For instance, he testified that he did not know the rental value at Alexander City of any one of the attractions that went to make' up his carnival attractions. It was his obligation to establish the value of the loss of the use of his “shows at Alexander City, This he undertook to do through means of an estimate of what he would have received in admission fees if he had been open for business that day at that place. Necessarily it could not be told what that sum would have been. It would have depended upon the number of people afforded the opportunity to see the attractions, the number that would have desired, that day, to see them, and the number willing and able to pay to see them. Claims for damages, predicated of the loss of profits, are considered too uncertain to form the basis of a recoverable sum, “which are purely speculative in their nature and-depend upon so many incalculable contingencies as to make it impracticable to determine them definitely by any trustworthy mode of computation.”— Dickerson v. Finley, 158 Ala. 149, 163, 48 South. 548, 552. Any claim for damages for loss of the nature and character asserted by the plaintiff could only be predicated of what admission fees the shows would have received on that day at Alexander City. Such a basis is entirely uncertain, and is affected with too many contingences incapable of anything approaching definite determination, to allow a recovery as upon it. It seems that a contrary conclusion on somewhat similar evidence touching a similar inquiry was attained by the Massachusetts court in Weston v. B. & M. R. R. Co., 190 Mass. 298, 76 N. E. 1050, 4 L. R. A. (N. [41] S.) 569, 112 Am. St. Rep. 330, 5 Ann. Cas. 825, and the conclusion there given effect may be said to find support in the few decisions mentioned in the opinion and in the annotator’s note. Nevertheless we are unwilling, after due consideration, to apply the rule of that case, and others in its line, to the obviously speculative matter and testimony presented in this record. The court erred in refusing to the defendant special charge numbered 4, which restricted the recovery, if due, to nominal damages only. The judgment is reversed, and the cause is remanded. Reversed and remanded. All the Justice concur, except