Paul E. Wolff Shirt Co. v. Frankenthal

70 S.W. 378, 96 Mo. App. 307, 1902 Mo. App. LEXIS 127

• Court: Missouri Court of Appeals
• Decided: October 21, 1902
• Status: Published

Opinion

BLAND, P. J.

1. Appellants contend that the steam plant was operated as the joint enterprise of appellants and respondent. The contract referred to between Alexander Frankenthal and William Goldstein does not specifically state which of the parties shall superintend the operation of the steam plant. From the nature of the contract and its terms the inference is that its operation was to be under their mutual and joint supervision. But it is nowhere provided in the contract that the tenant or tenants of either party should have any voice in superintending or running the steam plant. As to them (the tenants) the only provision of the contract is that they shall pay monthly the agreed proportion of the operating expenses.

The evidence is, and the trial court found as a fact, that the supervision of the operation of the plant was under the sole control of the appellants and we rule this contention against the appellants.

2. Appellants assign as error the admission of the •evidence of Hildebrand, respondent’s secretary and treasurer, in regard to a conversation he testified he. heard between A. F. Wolff, president of respondent company, and Alexander Frankenthal, in respect to the quality of the steam being furnished to- the respondent, on the ground that Hildebrand was an incompetent witness, Frankenthal being dead. The conversation testified to by Hildebrand tended to prove that Wolff made complaint to Frankenthal about the quality of the steam and the manner in which it was being furnished to respondent and of an offer on the part of Wolff to take charge of the steam plant and to run it properly; that to this proposition Frankenthal said to Wolff that the engineer in charge had run the plant for a long time; that he was a competent engineer and he saw no reason for making a change. Hildebrand took no part in the conversation. He said nothing, and nothing was addressed to him by either Wolff or Frankenthal and we know of no statute or rule that would make him incompetent as a witness to testify to this conversation on the ground that he was an officer of the respondent company.

3. It is assigned as error that the evidence of Wolff as to the damage sustained on account of loss of profits in business should have been excluded. On this issue Wolff testified as follows:

“Q. What was damage to your loss of trade? What shirts could you manufacture?

“Objected to by defendants, as remote and speculative.

“Objection overruled and exception taken.

“A. In four days we could manufacture 600 dozen ■shirts; the average price we find out, during four years in business, is about $8 a dozen.

£ £ Q. What would the profit be ?

“Again objection made and overruled, and exception.

“A. Net profit would be between five and six h.undred dollars. ’ ’

The objection was not to the character or competency of the evidence to prove damages, but to the admissibility of any evidence to prove damages on ■account of the loss of profits in business on the ground that such profits are not recoverable in this character ■of action. The objection raised the question as to •whether or not loss of profits in business constitute an element of damages in cases of this character. This question was recently before this court in the case of Gildersleeve v. Overstolz, 90 Mo. App. 518, and was so exhaustively discussed by Goode, J., that a further discussion of the subject is not called for here. The conclusion reached in the Gildersleeve case (abundantly supported by the authorities cited in the opinion) was that in actions of tort, or sounding in tort, loss of profits to business that are susceptible of definite ascertainment which were the direct result of the injury, might be recovered by the injured party.

4. Appellants allege as error the ruling of the trial court in excluding the evidence of the witness Hunter. Hunter was offered as an expert. He testified that he was a steam-fitter with twenty years’ experience but that he was not an engineer; that he did not know the cause of the explosion; that there might be a half dozen causes; that it might have been for the lack of a separator but did not know whether there was a separator or not; that if the plant was not properly piped he could tell it; that in supplying and putting up steam plants, such as plaintiff’s, he put them up and saw that they were properly operated.

This question was asked the witness.

“Q. What would be necessary to be done to that plant so as to catch the condensed steam and prevent such an accident that did occur, anfl prevent the water going into and blowing that up ? ”

Respondent objected to the question on the ground that the witness had not qualified himself to answer the question, which objection was sustained and an exception saved by appellants.

We do not think that the witness showed that he had had such experience in running plants of the kind in question as to qualify him to answer the question propounded. He did qualify as a steam-fitter but not as an operator of steam plants, nor was the question one which he could intelligently answer. To answer the question the witness must have had personal knowledge of the plant and its connections with respondent’s engine, this knowledge he testified he did not have. We think the objection was properly sustained.

Tbe finding of the facts by the learned trial judge is supported by tbe evidence and tbe facts as found warrant tbe judgment rendered.

Discovering no reversible error in the record the judgment is affirmed.

Barclay and Goode, JJ., concur.