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ness and negligence in making out Gratt. 765; Carr v. Southern R. Co. the freight bill and in representing 12 Ga. App. 830, 79 S. E. 41; Southto plaintiff, when it delivered the ern Exp. Co. v. McVeigh, 20 Gratt. tank car on the sidetrack, that it 264. It is not essential that the deccontained gasolene instead of kero- laration should contain the aversene. Carelessness and negligence on ment that the contents of the car the part of defendant is the basis of were fraudulently billed or frauduthe claim for damages. The decla- lently misrepresented when, delivration avers that defendant through ered. The declara

Pleading-comits servants, agents, and employees tion states a cause plaint-sathad negligently, carelessly, and im

of action in case,

ficiency. properly billed and represented the and the general demurrer was proptank car as containing gasolene, erly overruled. when in truth and in fact defendant Did the court err in sustaining had been informed and well knew the specific demurrer to those porthat said car contained kerosene and tions of the declaration which claim not gasolene, and had received ship- damages for loss of profits and for ping instructions from the shipper depreciation of or injury to plainto bill the same as kerosene. The tiff's plant and business? defendant is alleged to be a com- Defendant argues that the loss of mon carrier, and as such had been profits and damages to the business delivering tank cars containing gas- as alleged are improper because olene and kerosene consigned to they are not such damages which, plaintiff on its sidetrack at Mab- according to common experience and scott and notifying plaintiff of the the usual course of events, might delivery of the tank cars and the reasonably have been anticipated. contents thereof. The duty of de- Plaintiff argues that, as the decfendant to plaintiff in its capacity laration avers that the loss of prof. as a common carrier and the breach its and destruction or impairment of that duty by negligence and care- of plaintiff's business was the "dilessness, resulting in damages, we rect result and consequence of said think is sufficiently averred. The wrong and injury complained of," object of a declaration is to give no- the true solution can only be found tice to the adverse party of the upon whether the evidence when grounds of the complaint, and, if the tendered would be sufficient to prove facts are stated in a tort action from to the satisfaction of court and jury which, upon demurrer, the court can that the loss of profits and impairdetermine that plaintiff is entitled ment of the business was a proxito recover, recovery may be had if mate, direct, and natural consethe facts stated are sustained by the quence of the negligence complained proof. Poling v. Ohio River R. Co. of. 38 W. Va. 645, 24 L.R.A. 215, 18 The loss of profits and impairS. E. 782, 10 Am. Neg. Cas. 409. ment of business is stated to be a

The wrongful act in billing the result of the refusal of plaintiff's car as containing gasolene and in customers and the refusal of the making a false representation of its general public to further deal with contents on which the plaintiff re- plaintiff because it had sold some of lied is the gravamen of the action. the mixture of kerosene and gasoThe foundation of the action springs lene under the erroneous belief that out of the fact that defendant is a it was pure gasolene. The cause of common carrier and owed a duty to the "direct result and consequence plaintiff as such, which it failed to of said wrong and injury com

perform. The rem- plained of" is thus pleaded. PlainCase-pleading

edy of a breach of tiff sold for three days the spurious ligent billing this duty is in case mixture under the belief that it was -liability.

upon tort or in as- pure gasolene; as a consequence its sumpsit. Ferrill v. Brewis, 25 customers and the general public re

-carriers-heg

(- W. Va. —, 124 8. E. 587.) fused to further patronize its serv- to the cause from which they proice station, and profits decreased, a ceed. Wolff v. Hvass, 11 Misc. 561, loss of $1,000 for each of the three 32 N. Y. Supp. 798; Lowrie v. succeeding months was incurred in Castle, 225 Mass. 37, 113 N. E. 206; loss of profits, and damages to the Johnson v. Atlantic Coast Line R. business caused plaintiff to sell out Co. 140 N. C. 574, 53 S. E. 362; 17 at a loss of $35,000.

C. J. p. 794, § 116. An inspection of the decisions re- "The modern rule, however, does veals that, where loss of profits is not deny a recovery of profits beclaimed as an element of damages cause of the fact that they are proffor breach of contract, or loss of its, but because they are speculative, profits of sale or purchase as a re- contingent, or uncertain; and while sult of breach of contract, the prof- there are many cases in which its must be proximate, absolute, and they have been denied upon these certain, not remote, contingent, or grounds, the generally accepted rule uncertain, and must be such as must is that, where it is shown that a loss have reasonably been within the con- of profits is the natural and probable templation of the contracting par- consequences of the act or omission ties at the time the contract was complained of, and their amount is made. In actions of tort the rule is shown with sufficient certainty, somewhat different, in that the doc- there may be a recovery therefor; trine of loss of profits contemplated but anticipated profits cannot be reat the time the contract was made, covered where they are dependent if a breach be had by either party, upon uncertain and changing condihas no application. Allison V. tions, such as market fluctuations, Chandler, 11 Mich. 542; Terre or the chances of business, or where Haute v. Hudnut, 112 Ind. 542, 13 there is no evidence from which N. E. 686. Hence in actions of tort they may be intelligently estimated. . the rule is that the doctrine that the So evidence to establish profits must tort-feasor is liable only for such in- not be uncertain or speculative.” 17 juries as may reasonably have been C. J. p. 785, § 112. contemplated by the parties does not A good summary of the result of prevail. Kentucky Heating Co. v. the decision relating to the quesHood, 133 Ky. 383, 22 L.R.A.(N.S.) tion under discussion is found in the 588, 134 Am. St. Rep. 457, 118 S. conclusion of note to Wallace v. W. 337; Wyant v. Crouse, 127 Mich. Pennsylvania R. Co. 52 L.R.A. 33. 158, 58 L.R.A. 626, 86 N. W. 527; and Horres V. Berkeley Chemical Sutherland on Damages, vol. 1 $ 16, Co. 52 L.R.A. 36, which I take the where the author says: “Whether liberty of quoting:

" the injurious consequences may have “There is little to be said in conbeen 'reasonably expected to have clusion in this note, but to repeat the followed from the commission of the statement previously made that loss act is not at all determinative of the of profits furnishes a ground for reliability of the person who commit- covery in actions for damages for ted the act to respond to the person tort, where they are susceptible of suffering therefrom." Norfolk & accurate estimation, and the loss of W. R. Co. v. Spears, 110 Va. 113, 65 such profits was the proximate reS. E. 482; Stevens v. Dudley, 56 Vt. sult of the wrong, and the profits 166.

were not speculative, contingent, or However, it is equally well estab- uncertain; but they cannot be relished that, where loss of profits by covered if they were remote, specureason of a tort are allowed, they lative, contingent, or uncertain.

must be such The courts have not attempted to de

would naturally be loss of profits.

fine these terms abstractly, or to expected to follow show any definite rule as to just the wrongful act, and are certain what constitutes remote, speculaboth in their nature and in respect tive, contingent, or uncertain prof

as

Damages

its, and, indeed, it would seem that of Crain v. Petrie, 6 Hill, 522, 41 they might be deemed to be concrete Am. Dec. 765, where plaintiff was as used in this connection, and not engaged in butchering and selling susceptible of limitation by abstract sheep and bought sheep from derules. They have decided each case fendant which were diseased, deon its own facts and circumstances, fendant knowing that fact, but and the reader is referred to such representing them to plaintiff as cases above tabulated. It is thought healthy.

healthy. A customer of plaintiff to be deducible from such cases, who had contracted to take hams however, that the line between prox

and shoulders of sheep during a peimate and remote profits is the same riod refused to carry out his conin principle as that between proxi- tract because of a report that plainmate and remote cause in negligence tiff had purchased diseased sheep cases.

from defendant, and other custom“With reference to the nonallow- ers refused to deal with plaintiff beance of profits lost as damages be- cause of that same report. The cause they were speculative, con- court held that plaintiff could not tingent, or uncertain, the most defi- recover because the damages claimed nite rule that can be drawn from the (loss of profits and impairment of cases would seem to be that if by the business) were not the legal and any chance, or under any condition natural consequences arising from of affairs then existing, the profits the tort, but were the result of the might not have accrued though the wrongful act of third parties rewrongful act had not intervened, motely induced thereby. The court there can be no allowance for profits said the consequential loss was oclost as damages. But if, but for the casioned by the want of confidence wrongful act, there must have been on the part of plaintiff's customers profits notwithstanding any other in the care, skill, or integrity of circumstances existing at the time plaintiff himself, the people assumof the perpetration of the wrong, ing that he might sell meat of a disthe question of their speculativeness eased sheep for a good and merand contingency is absolutely nega- chantable article. And in Butler v. tived. They need not be absolutely Kent, 19 Johns. 223, 10 Am. Dec. certain in amount to warrant recov- 219, plaintiff, who had purchased ery; reasonable certainty is suffi- . lottery tickets for resale, sued the cient, so long as they are neither re- lottery managers because their caremote, speculative, nor contingent. less, negligent, and improper conBut they must be reasonably certain duct in the conduct of the lottery imto warrant their use as a criterion paired public confidence, and he was or measure of damages, though they unable for that reason to sell the may furnish a subject for the con- tickets, whereby he suffered loss of sideration of the jury on the ques- profits and damages to his business. tion of the extent of the injury in Recovery was denied, one of the cases of such a nature that there grounds being that the allegation of are no data or elements of certainty special damage to the effect that, in by which substantial compensation consequence of the loss of public may reasonably be estimated when- confidence in the integrity and fairever they have a tendency to show ness of the drawing of the lottery, damages or their probable amount." the plaintiff could not sell the tickets

Illustrative of the application of at retail was too general, the court the principle, clearly set out in the saying: "It is impossible to condecisions and textbooks to the ef- ceive anything more vague and unfect that, if the tortious act or omis, triable than the loss of a market for sion is not the reasonable, natural, any commodity from the want of and direct result of the loss of prof public confidence.” its or damage to the business, re- The damages were held not to be covery cannot be had, are the cases the natural and direct consequences

(-- W. Va. ---, 124 8. E. 587.) of the wrongful acts imputed to de- rence Boom & Mfg. Co. 65 W. Va. fendants. And in Chicago, B. & Q. 346, 64 S. E. 355; 8 R. C. L. § 53, p. R. Co. v. Gelvin, L.R.A.1917C, 983, 492. As to the method of proving 151 C. C. A. 90, 238 Fed. 14, plain- damages and the character and suffitiff Gelvin sued defendant for neg- ciency of the evidence we are not ligently permitting sparks to escape now concerned. The question here from a locomotive, setting fire to the presented by the demurrer is whethpasture in which his cattle grazed, er the declaration is sufficient on whereby the cattle were stampeded, which to base evidence of the loss of injured, and did not take on flesh profits to plaintiff's business and for the market. The court held that damages for injury thereto. the injury to the cattle was not the The principle of law which is apnatural and proximate cause of the plicable is that, if the damages rewrongful act complained of, such in- sulting from a tortious act, measjury not being one in the common ured in part by loss of profits, are experience of mankind known to be the reasonable, nat

Pleading-aclikely to result from a fire of that ural, and direct, or tion on case character.

-sufficiency.

proximate, result of Our case of Chambers v. Spruce the wrongful act, recovery may be Lighting Co. 81 W. Va. 714, 95 S. E. had. If not, recovery must be 192, cited, holds, in effect, that the denied. The declaration charges wrongful interruption or cutting off "that, as the direct consequence of an electric current which fur- and effect of so mixing and minnished light to a hotel was a direct, gling of said gasolene and kerosene proximate, and natural result of the and of so selling and distributing impairment of the business of the such mixture as, and in the belief hotel, and the measure of damage that the same was, gasolene,” its for which was not depreciation in customers and the general public rethe rental value of the building, but fused to deal with plaintiff, causing rather loss of profits of the business the loss of profits and impairment during the time the current was cut of business complained of. Was the off. Likewise the case of Kentucky negligent billing of the car the diHeating Co. v. Hood, 133 Ky. 383, rect and natural cause of refusal of 22 L.R.A.(N.S.) 588, 134 Am. St. plaintiff's customers and the genRep. 457, 118 S. E. 337, cited by eral public to deal with plaintiff? plaintiff's counsel, allows recovery The alleged misbilling of the tank for loss of profits to an established car as containing gasolene caused business occasioned by the wrong- the intermingling which, according ful cutting off of a gas necessary to to the declaration, destroyed both the conduct of the business. It is gasolene and

gasolene and kerosene, a result quite generally held that loss of

which might reasonably have been profits established to a reasonable anticipated. It was the sale of a degree of certainty is a proper ele

small part of this worthless mixture ment of damages in cases where the

by plaintiff believing it to be pure supply of heat, water, or gas has

gasolene which resulted in the albeen wrongfully cut off from premises in which a business is conduct- leged loss of profits and impairment ed. In such cases the damage is

of business. Could it be reasonably considered to be the direct, natural, anticipated or expected that plainand immediate or proximate cause

tiff would sell this worthless mixof the wrongful act. Many other

ture? Certainly it could not be reacases cited by plaintiff relate to the sonably expected that a sale of a character and sufficiency of evidence small quantity of this spurious mixnecessary to establish the quantity ture would destroy confidence of of damage, and in proving the loss plaintiff's customers and the generof profits and detriment to the busi- al public in the business integrity ness such as Hurxthal v. St. Law- and fair dealing of plaintiff. The

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negligent act is not of such a char- said in Butler v. Kent, 19 Johns. acter which, according to the usual 223, 10 Am. Dec. 219: "It is imexperience of mankind, would bring possible to conceive anything more about the train of consequences al- vague and untriable, than the loss of leged. The wrongdoer is held re- a market for any commodity, from sponsible for all the consequences of the want of public confidence.” his negligent act which are natural The loss of prospective profits and and probable and ought to have been damage to the business claimed is foreseen by a reasonably prudent the result of the act of plaintiff's man. Atchison, T. & S. F. R. Co. customers and the general public in v. Calhoun, 213 U. S. 8, 53 L. ed. refusing to deal with it, remotely in674, 29 Sup. Ct. Rep. 321. “An in- duced by the negligent act of billing jury which could not have been the car. To recover in cases of this foreseen nor reasonably anticipated character the special damages must

is not actionable, and such be the direct, natural, and reasonan act is either the remote cause, or able consequence of the act comno cause whatever, of the injury." plained of. The charge in the decCole v. German Sav. & L. Soc. 63 laration that the special damages L.R.A. 416, 59 C. C. A. 593, 124 Fed. were the direct result and conse113, 14 Am. Neg. Rep. 676.

quence of the wrong and injury See Fawcett v. Pittsburg, C. & St. complained of is a conclusion from L. R. Co. 24 W. Va. 759; Teis v. the facts and circumstances stated. Smuggler Min. Co. 15 L.R.A.(N.S.) The specific demurrer to the items 893, 85 C. C. A. 478, 158 Fed. 260; of damage named-loss of anticipatChicago, B. & Q. R. Co. v. Gelvin, ed profits and impairment of the L.R.A.1917C, 983, 151 C. C. A. 90, value of plaintiff's

Damages-loss 238 Fed. 14.

plant and business of business In Bradstreet Co. v. Oswald, 96

right to recover.

-was properly susGa. 396, 23 S. E. 423, profits alleged tained, and we so answer the second to have been lost by reason of plain- question certified. tiff's inability to buy goods from Such reasonable expense incurred wholesale merchants, to be in turn in plaintiff's efforts to minimize the sold to his customers, by reason of damages recoverable are proper to a false report of his financial con- be considered by the court and jury. dition, innocently but negligently If the gasolene and kerosene were made by defendant, Bradstreet rendered worthless, as charged, the Company, were denied, because such value of these commodities to plainloss of profits was too remote and tiff at the time of the destruction is conjectural. In the case now before recoverable. Otherwise the recovus the loss of profits and impair- ery would be based on the difference ment of business is pleaded as the between the value immediately beresult of loss of confidence of plain fore and the value immediately afttiff's customers and the general pub- er the intermingling. lic in its business dealings. As was Ruling affirmed.

ANNOTATION.

Liability of carrier for misrepresenting subject or character of shipment.

In the reported case (OHIO-WEST VIR- it was kerosene. The consignee's reGINIA CO. v. CHESAPEAKE & O. R. Co. covery, however, is limited to reimante, 1439) it is held that trespass on bursement for the loss of the gasothe case may be maintained against a lene and kerosene rendered worthless carrier for damages resulting from by the intermixture of the two and to the misrepresentation by the car- reimbursement for the reasonable ex. rier of the shipment which it rep- pense entailed in efforts to minimize the 'esented to be gasolene, when in reality damages recoverable, and recovery is

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