Johnson v. International of the United Brotherhood of Carpenters & Joiners of America, Local Union No. 971 , 54 Nev. 332 ( 1932 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] There is not a scintilla of evidence to show what Johnson actually earned as a journeyman carpenter during the year preceding his election as a business agent, upon which to base judgment for damages. And this court can determine whether or not there is any evidence to support the judgment. Sweet v. Sweet, 49 Nev. 254, 243 P. 817; Beck v. Thompson,22 Nev. 109, 36 P. 562.

It seems to us that the two phrases, "Johnson would probably make" and "assuming that he made," indicate beyond a shadow of a doubt the method by which the trial court reached its decision, namely, by speculation, conjecture and assumption. Richards v. Vermilyea, 42 Nev. 294, 175 P. 188. Inasmuch as the conclusion of the trial court rests upon competent and substantial evidence establishing every contention of respondent, there is no basis for appellants' contention that the judgment was erroneous. It is only where the evidence is undisputed and where the court can, as a matter of law, say that there is no substantial evidence to support the judgment that this court can interfere with the findings and judgment of the trial court upon questions of fact.

OPINION This is the second appeal in this case; the opinion on the former appeal disposes of the question of the liability of the appearing defendants (52 Nev. 400, 288 P. 170), and the only question involved on this appeal is, as stated in appellants' opening brief, and on the oral argument, "whether plaintiff was damaged and if so to what extent."

The learned trial judge filed a written opinion in this case which we think clearly and fully disposes of the question involved, and we hereby adopt the following portion thereof, as a portion of the opinion of this court:

"The law of this case is settled by the opinion of the Supreme Court of the State and, under that decision, the plaintiff is entitled to the judgment and decree of this court directing and compelling the defendants to reinstate the plaintiff as a member of the Brotherhood and of Local No. 971.

"The question to be determined by this Court at the present time is the amount of damages that should be allowed the plaintiff by reason of the wrongful act of the defendants in expelling him from the Union. I think it is a matter of congratulation to all right thinking men that Reno is a union town. It seems to me that even with the advantage of the Union the laboring men have sufficient difficulty in obtaining a livelihood even in a place like Reno.

"If we are to accept the testimony of the witnesses for the defendants, the average wages earned in Reno, which is considered to be a ninety per cent. union town, by members of the Carpenters' Union is only $1200 a year. The testimony of the plaintiff and the plaintiff's witnesses is to the effect that $2000 is the amount that they were able to earn and the amount that the plaintiff claims he would have been able to have earned had it not been for his expulsion from the Union.

"It is the opinion of the Court that the estimate made by the witnesses for the defendants is too small, but the Court is also of the opinion that the estimate made by the plaintiff and his witnesses is too large. According to the evidence there are only 234 working days in the year under union rules, and we are dealing with the proposition that has to do wholly with the Union. At the rate of $10 a day, which is the Union wage rate, a carpenter employed every day simply as a journeyman could make only $2,340. When we take into consideration the number of months in the winter time when work is hard to find, the Court is of the opinion that the estimate made by the plaintiff and his witnesses is rather large.

"There was a line of testimony upon which the Court can base its decision and take the decision outside of the realm of mere speculation, and that testimony was the testimony given by certain of the witnesses as to the number of carpenters who worked practically all the time, the number that worked eighty-five per cent. of the time, the number that worked seventy per cent. of the time, the number that worked sixty per cent. of the time, the number that worked forty per cent. of the time, and the number that worked twenty-five per cent. of the time. Striking an average on that the Court is of the opinion that a person such as the evidence shows Mr. Johnson to have been, a man with a family and anxious to work and seeking employment, would probably make in the neighborhood of $1600 a year during the years that he was expelled from the Union. Then, commencing with the first of January, the forepart of January, 1927, his evidence shows that he made between $500 and $600 that year; in 1928, between $400 and $500. In 1929 the evidence shows he had some contract work and made about $1,000, and in 1930 between $400 and $500. Assuming that he made $1600 a year, and taking the amount that he made at his largest figure in the four years and two months covered by the time in the complaint and supplemental complaint that he was laboring under the disability of having been expelled from the Union he lost, according to the Court's figures $4000."

Counsel for appellant insists that there was no evidence which enabled the court to fix $4,000 as the measure of damages sustained by the plaintiff; that it arrived at the amount by guess, which this court condemned in Richards v. Vermilyea,42 Nev. 294, 175 P. 188, 180 P. 121. In that case there was absolutely no basis for the conclusion reached by the court in fixing the amount of damages; it was purely guesswork. Such is not the fact in the instant case.

1. In the majority of damage suits there is no way of showing the exact damages a party has sustained, but there must be a basis for the fixing of the amount. In a case like this we think the same rule should apply as in a personal injury case, a fair recompense for the loss of what plaintiff would otherwise have earned in his calling, and has been deprived of earning by the wrongful act complained of. We approve the statement in 17 C.J. 844, as follows: "It is obvious that in many cases the amount of damages is not susceptible of exact, pecuniary admeasurement, but must rest largely in the discretion of the jury, and the jury are entitled to consider the evidence in connection with their own knowledge, observation and experience."

2, 3. We think there is substantial evidence in the record to sustain the findings and judgment, and the order denying the motion for a new trial; hence, pursuant to a long line of authorities, the judgment must be affirmed. Butzbach v. Siri et al., 53 Nev. 453, 5 P.2d 533.

Judgment affirmed.