Bennett v. Smith

Birdsong, Judge.

Appellants brought an action in tort against appellee alleging that as a result of Smith’s negligent delivery of contaminated pre-lay feed, appellants’ hens stopped laying eggs. At trial, the trial court granted Smith’s motion for directed verdict on the ground that appellants failed to introduce sufficient evidence on the question of damages. The court ruled that under Radlo of Ga. v. Little, 129 Ga. App. 530 (199 SE2d 835), Smith was entitled to a directed verdict because (1) appellants had not shown a profit in their year-old business and (2) appellants introduced no evidence to establish their cost of production. We believe the trial court correctly directed the verdict against appellants.

. As we view it, in order to make out a right to damages, appellants were obligated to establish with reasonable certitude their provable estimated net loss of profits by showing the experience factors giving rise to the provable estimated gross revenues less the provable estimated expenses. Necessarily then, we conclude that this is a suit for loss of estimated net profits and not simply loss of estimated gross revenues.

To adopt the position advocated by appellants would make Smith an insurer for lost revenue, and not liable only for damages incident to tortious conduct. Logic compels us to conclude that as the quantity of eggs laid declined, the cost of gathering, packaging and distributing the eggs, also would decline. Appellants would not have incurred those costs and apparently did not pay them. Thus to sustain appellants’ position would be to approve payment to appellants of what would amount to a windfall, and thus an unjust enrichment to the extent their estimated gross revenue based upon prior experience is not reduced by an estimated cost of production based upon the same estimated time frame.

We hold that the trial court was eminently correct in concluding that the deleterious effect of the improper pre-lay feed on the pure loss of prospective profits was too remote and speculative to be recoverable, and the true measure of damages must be limited to the reasonably established prospective income less the reasonably established expenses. Radlo of Ga. v. Little, supra, 534. In the absence of evidence showing the reasonably expected expenses, as well as the expected revenues, the jury could not have been furnished data sufficient to enable the jurors to estimate with reasonable certainty the amount of the damages (National Refrigerator &c. Co. v. Parmalee, 9 Ga. App. 725 (1) (72 SE 191)), but impermissibly would leave the question of damages to speculation, conjecture and guesswork. Silco v. Gwinnett County Hospital Authority, 151 Ga. App. 634; Studebaker Corp. v. Nail, 82 Ga. App. 779 (62 SE2d 198). We affirm the trial court’s direction of a verdict in favor of the appellees. See Kitchens v. Lowe, 139 Ga. App. 526, 531 (228 SE2d 923).

Argued July 9,1979 — Decided September 5, 1979 — Rehearing denied December 20,1979 — Glyndon C. Pruitt, for appellants. J. Bouglas Stewart, for appellee.

Judgment affirmed.

Been, C. J., Shulmán, Underwood and Carley, JJ., concur. Quillian, P. J., McMurray, P. J., Smith and Banks, JJ., dissent.