Bowen v. King

after stating the case: The court was asked to hold that, unless defendants had possession of the property at the time the present action was commenced, plaintiff could not recover. The position is correct, as applied to actions brought to recover the possession of the property itself. Such action only lies against the one who has possession of the property at the time the same is instituted. Webb v. Taylor, 80 N. C., 305; Haughton v. Newberry, 69 N. C., 456. While the allegation of the complaint may be broad enough to constitute a demand for the possession, it is evident, from a perusal of the entire pleadings, that the demand was not intended to be for the possession, which the plaintiff undoubtedly had when the action was commenced, but was to recover damages caused by reason of the wrongful seizure and detention of the property. As heretofore stated, it does not definitely appear how plaintiff reacquired possession of the property; but, assuming — and there are statements from some of the witnesses tending to show this — that the possession was *390restored by means of a former action of claim and delivery, while plaintiff could have had his damages assessed in the former action (Revisal, sec. 570), the authorities seem to be to the effect that he was not required to take this course, but, after obtaining possession, could, in another action, recover damages for the injury done by the wrongful seizure and detention of his property. Woody v. Jordan, 69 N. C., 189; Asher v. Reigenstein, 105 N. C., 213.

Again, the court was requested to charge that defendants could not be held liable in the present case because of the existence, at the time of the seizure, of an unsatisfied mortgage in favor of their debtor, the Benedict Love Company, and against which the attachment had been issued. This prayer for instructions was correctly refused by the court. In the absence of statutory provision, the interest of a mort'gagee in personal property while the mortgagor remains in possession, having also an interest therein, is not the subject of levy by direct seizure, either under attachment or execution. Freeman on Executions, secs. 118-184; 20 Amer. and Eng. Ency., 974. The right of the mortgagee in the property, on the facts, presented, was simply that of a creditor, and his interest as creditor could only be levied on as directed by provisions of Revisal, sec. 7 67, to b*e collected and applied under the direction and supervision of the court.

On the issue as to damages we think there was error. It is well established that, in a “pure tort,” the case presented here, the wrongdoer is responsible for all damages directly caused by his misconduct, and for all indirect or consequential damages which are the natural and probable effect of the wrong, under the facts as they exist at the time the same is committed and which can be ascertained with a reasonable degree of certainty. Johnson v. Railroad, 140 N. C., 574; Sharpe v. Powell, 7 L. R., 1892, p. 253; 8 Amer. and Eng. Ency., p. 598; Hale on Damages, 34, 35 et seq. This last author, in substance, says that a wrongdoer is liable for all *391damages wbicb are tbe proximate effect of bis wrong, and not for those wbicb are remote; “that direct losses are necessarily proximate, and compensation, therefore, is always recoverable; that consequential losses are proximate Avben tbe natural and probable effect of tbe wrong.” A well-recognized restriction, applying in cases of tort and contract, and as to both elements of damages, is to tbe effect that tbe injured party must do what be can in tbe exercise of reasonable care and diligence to avoid or lessen tbe consequences of tbe wrong, and for any part of tbe loss incident to such failure no recovery can be bad. This limitation was approved by us in a case of contract, in Tillinghast v. Cotton Mills, 143 N. C., 268, and directly applied to a case of tort, in Railway v. Hardware Co., 143 N. C., 54. A full consideration of tbe facts and tbe charge of tbe court leads us to the'conclusion that tbe defendants have not bad tbe benefit of this limitation in tbe trial of tbe present case. A verdict of $1,250 damages for tbe detention of two mules, two horses, a wagon and a lot of feed for a period of eighteen days, when they were all restored to tbe owner, uninjured, so far as tbe facts show, is an unusual amount of consequential damages, and to be sustained, if at all, only under very exceptional circumstances. We are inclined to tbe opinion that, if plaintiff should establish that tbe seizure of bis teams bad the necessary effect of interrupting bis operations in getting out lumber for a definite time, and be should show that, tbe lumber being obtainable and accessible, be could, during tbe time be was wrongfully deprived of bis property, have delivered as much as 300,000 feet of lumber, at a profit of $2 per thousand, this profit is tbe most definite and satisfactory rule for estimating bis loss that could be adopted, on tbe facts presented, tbe evidence being to tbe effect that no other employment was open to him; but such an interruption would only be natural and probable if it should be established as tbe necessary result of tbe defendants’ wrong, under exceptional conditions existing *392at the time, and then only to the extent that it could not have been avoided or diminished by reasonable diligence on the part of plaintiff. There is evidence tending to show that some of the property — the teams and wagons — was replevied from the’ officer under court proceedings. This was allowable to plaintiff when his property had been wrongfully seized as that of another. Mitchell v. Sims, 124 N. C., 411. And there is no claim, and no testimony tending to show, that this course could not have been at once taken, all the property replevied and almost the entire loss claimed by the plaintiff prevented. This was held to be encumbent on the party injured, if same could have been done by reasonable effort, in Railway v. Hardware Co., supra, and we think the defendants were entitled to have this view-presented to the jury. Or, if the plaintiff, under the circumstances and in a shorter time, and in the exercise of reasonable effort, could have procured other feed and have had it hauled by ox carts and other means, he should have taken this, if a reasonable and prudent course by which his loss could have been reduced. And it may be well here to note that, if the jury should award plaintiff damages on the basis of the profit he could have made during the time his work was necessarily interrupted, he should not have, in addition, the direct damages arising from a fair value for the loss of the use of the teams, because, in the event suggested, the use of the teams would be required in making the alleged profit. He can recover for the value of the use of the teams — this is direct damages' — but both should not be allowed. And as to the logs which had been placed on the river preparatory to being floated down by the completion and operation of the splash dam, the loss occurred more than thirty days after the seizure and more than twelve days after the teams had been recovered and the plaintiff had resumed business. There is no testimony or suggestion that the logs could not have been secured and saved by proper effort on the part of plaintiff and his employees, and we are *393of opinion that, on tbe facts presented, tbis loss bad no reasonable or natural connection with tbe seizure of plaintiff’s teams, and all consideration of it should bave been excluded from tbe jury. Tbe court did do tbis in one part of tbe cbarg'e, but in another be charged tbe jury as follows: “If plaintiff was prevented from floating lumber, which was bis, during tbe eighteen days, by reason of not having a team to prepare it, etc., and that was tbe direct cause of damage, and tbe logs lost in tbe meantime by flood, which would bave been prevented, then tbe jury will give actual damages resulting from such loss.” There was no evidence whatever of such loss during tbe eighteen days when plaintiff claims bis teams were wrongfully withheld from him. And in another part of tbe charge tbe court, in substance, told tbe jury that tbe loss by reason of logs carried away by tbe flood was too remote for recovery. Tbis conflict in tbe charge has, however, evidently operated to defendants’ prejudice, for it is only by allowing for tbe loss that tbe jury could bave awarded tbe sum given in tbe verdict.

TVe are referred by defendants to tbe case of Sledge v. Reed, 73 N. C., 440, as authority for tbe position that, on the facts in tbis case, only direct damage should be allowed— that is, a fair price for tbe use of the teams while wrongfully withheld. But consequential damages were refused in Sledge’s case because there was no evidence that plaintiff could not bave procured another horse, by 'reasonable effort, with which to make bis crop; and there was intimation, too, that tbe result of any given crop year was too uncertain to be regarded as the proximate result of plaintiff’s wrong. It is tbe general rule that damages which cannot be established with reasonable certainty, or which are contingent or speculative, cannot be allowed, and anticipated profits, in tbe ordinary sense of that term, are usually within tbe prohibition. As said-in Hale on Damages, however (p. '70), “Absolute certainty is not required, but both tbe cause and probable amount *394of tbe loss must be shown with reasonable certainty.” And, accordingly, it is held “that profits which would certainly be realized, but for defendant’s default, are recoverable.” A good illustration of this distinction will be found in Johnson’s case, supra, where, in negligent destruction of plaintiff’s factory for the manufacturing of baskets, crates, etc., it was held that profits on sales already made, and which plaintiff would have had the present ability to complete but for the wrong done him, were allowed as proximate, but anticipated profits which might otherwise arise from continuance of the business, on the facts there presented, were regarded as speculative and contingent, and, therefore, too remote for recovery.

We think, in the present case, that if it should be properly shown that plaintiff’s business was necessarily and wrongfully interrupted for a definite time, and to an extent which plaintiff could not have lessened by reasonable effort, and that during such time plaintiff could with the means at his disposal have delivered a definite amount of lumber at a certain profit, under the principle of Johnsons case, such a loss would be sufficiently certain for consideration and could be properly made the basis of the jury’s award of consequential damages. • -

Eor the error pointed out there will be a new trial on all of the issues, and it is so ordered.

New Trial.