Reliable Trucking Co. v. Payne ( 1951 )

65 S.E.2d 132 (1951) 233 N.C. 637

RELIABLE TRUCKING CO.
v.
PAYNE.

No. 675.

Supreme Court of North Carolina.

May 23, 1951.

Smith, Sapp, Moore & Smith, Greensboro, for plaintiff-appellant.

Welch Jordan, Greensboro, for defendant-appellee.

STACY, Chief Justice.

The question for decision is whether the special damages pleaded by plaintiff are proper in an action to recover for alleged negligent damages to a commercial vehicle constantly needed and currently being used in a business enterprise. The trial court answered in the negative. We are inclined to a different view.

It should be observed in limine perhaps that the question is one of pleading, which may suggest sufficient liberality to include the greatest amount of damages to arise on the evidence. Parker v. Duke University, 230 N.C. 656, 55 S.E.2d 189; Hill v. Stansbury, 221 N.C. 339, 20 S.E.2d 308. The common-law pleading in this respect has been relaxed by the Code of Civil Procedure. A party may not recover all that he alleges, although he is limited in his recovery to his plea. For this reason some latitude may be expected in allegation which would not be permitted in the evidence. In other words, the plaintiff is not to be put in a straight-jacket in drafting his complaint, Terry v. Capital Ice & Coal Co., 231 N.C. 103, 55 S.E.2d 926, nor is the Court disposed to chart the course of the trial on motions to strike. G.S. § 1-153; Parlier v. Drum, 231 N.C. 155, 56 S.E.2d 383; Pemberton v. City of Greensboro, 205 N.C. 599, 172 S.E. 196.

It is true that at common law and in some of the earlier decisions loss of profits from a business enterprise, occasioned by the negligent damage to property, was regarded as too remote, uncertain and speculative to be included in the recoverable damages for the tort. Jones v. Call, 96 N.C. 337, 2 S.E. 647; Sledge v. Reid, 73 N.C. 440; Boyle v. Reeder, 23 N.C. 607. And even now such is still the rule in respect of certain businesses where the profits are speculative, contingent or uncertain. Thompson v. Seaboard Air Line Ry. Co., 165 N.C. 377, 81 S.E. 315, 52 L.R.A., N.S., 97; Brewington v. Loughran, 183 N.C. 558, 112 S.E. 257, 28 A.L.R. 1543.

The earlier rule has been modified, however, not only in respect of pleading, but also in regard to the scope of the recovery, especially in actions purely of tort. 15 Am.Jur. 556; Johnson v. Atlantic Coast Line R. Co., 140 N.C. 574, 53 S.E. 362. In the case just cited, it was held (as stated in the 3rd syllabus): "Where the profits lost by defendant's tortious conduct, proximately and naturally flow from his act and are reasonably definite and certain, they are recoverable; those which are speculative and contingent, are not". This was followed with approval in Kitchen Lumber Co. v. Tallassee Power Co., 206 N.C. 515, 174 S.E. 427.

Under the modern rule, then, it may be said that lost profits constitute a proper element of damage where such loss is the direct and necessary result of the defendant's wrongful conduct, and such profits are capable of being shown with a reasonable degree of certainty. Steffan v. Meiselman, 223 N.C. 154, 25 S.E.2d 626; Binder v. General Motors Acceptance Corp., 222 N.C. 512, 23 S.E.2d 894; Wilson v. Horton Motor Lines, 207 N.C. 263, 176 S.E. 750; Anno. 169 A.L.R. 1074; 15 Am.Jur. 558.

At any rate, it would seem that the present challenged allegations in the complaint ought to survive a motion to strike if only the loss of use and profits are permitted to be shown in evidence and considered in arriving at the amount of damages sustained though not in themselves furnishing the proper measure of damages. Johnson v. Atlantic Coast Line R. Co., supra; Jones v. Call, supra; 15 Am.Jur. 791.

The allegations stricken and brought forward on the appeal should be allowed to remain in the complaint. The exceptions to those not brought forward in plaintiff's brief are of course abandoned. Rule 28.

Error and remanded.