Electrical Research Products, Inc. v. Gross

HEALY, Circuit Judge.

We granted a rehearing in this case on the petitions of both parties. So far as concerns the contention of appellee we are satisfied that the holding must stand, but upon consideration of appellant’s contention on the rehearing we are constrained to hold that the evidence bearing on the issue of lost profits was insufficient to go to the jury.

Questions concerning the sufficiency of the evidence bearing on this issue were inadequately treated in the original brief and argument of appellant. The evidence now specifically called to our attention shows that appellee’s loss of business was at least in part attributable to the advent of competing theatres and to the prevalence of the depression. We think there was no rational basis upon which the jury might approximate the amount of the loss caused by appellant’s wrongful act, as distinguished from the loss due to other factors.

According to one of his managers appellee commenced to reduce prices after competing theatres were opened in Juneau and Ketchikan. This witness testified that from May, 1929, to May, 1933 the Juneau prices dropped from $1 to 40 cents, and possibly as low as 25 cents, and that the Ketchikan prices fluctuated from $1 to 50 cents. “As a general proposition,” said this witness, “we never got our prices back to $1 per seat, but might occasionally, only occasionally, during a term of years charge $1 for loges.”' Another witness testified that up to January 1, 1931 appellee was charging 75 cents in Juneau but dropped his prices on that date. And there was further testimony that the price charged by appellee in both Juneau and Ketchikan was lowered to 40 cents shortly after June 21, 1932.

In the light of this evidence, coupled concerning the depression which began and deepened during the period, it was not humanly possible for 'the jury to arrive at an approximation of lost profits attributable to appellant’s wrongful removal of its equipment. The proof did not measure up to the requirement of the rule of damages announced in our opinion. Cf. Montgomery v. Chicago, B. & Q. R. Co., 8 Cir., 228 F. 616, 620, 621; Willis v. S. M. H. Corp., 259 N.Y. 144, 181 N.E. 79, 80; Broadway Photoplay Co. v. World Film Corp., 225 N.Y. 104, 121 N.E. 756.

We conclude that the trial court erred in submitting the issue of lost profits to the jury. For this reason, as well as-because of the error discussed in the previous opinion, the case must be reversed and remanded for a new trial.