
    Alexander Fraser, Respondent, v. The City of Buffalo, Appellant.
    Fourth Department,
    January 8, 1908.
    Damage — personal injuries — inability to continue business — prior profits.
    In an action to recover for .personal injuries, a plaintiff, engaged in business as a .merchant tailor, carrying a stock bf goods valued at $1,200, which he personally cut without assistance, and hired workmen to make into clothes by the piece, is, on the question of damage, entitled to show his earnings prior to the accident and the percentage thereof accruing from his own labor. Under such circumstances the capital employed is insignificant and a mere incident. r ' vehicle to the performance of services almost purely personal in their nature and hence proof of prior profits is admissible on the question of damage.
    Cases distinguished.
    Appeal by the defendant, The City of Buffalo, from a judgment ■ of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 1st day of July, 1907 upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the 30th day of April, 1907, denying . the defendant’s motion for a new trial made upon the minutes.
    
      Louis E. Desbecker and John W. Ryan, for the appellant.
    
      Carlton E. Ladd, for the respondent.
   Williams, J.:

The judgment and order should be affirmed, with costs.

The action was brought to recover damages for personal injuries alleged to have resulted' from the defendant’s negligence. The plaintiff fell upon an accumulation of ice upon a sidewalk and received quite serious injuries. The recovery was for $4,500 damages.

It is claimed improper ■ evidence was admitted in the case and tended to cause so large a recovery. The only question we care to consider in an opinion relates to this subject. The plaintiff was engaged in the business of a merchant tailor. He had an office, took orders for clothes, cut them from goods he had on hand or ordered, and hired workmen by the.piece to make up the clothes. He carried a -stock of goods valued at $1,200. He had no one'in his office with him. The court under objection and exception permitted the plaintiff to give evidence asTo the profits of his business for six years' prior to this accident,, and in charging .the jury with reference to this element of damages, said: “ He lias given evidence before you tending to"show the .gross-receipt's-from his business for some, six years prior to the accident, and lie has-given.an estimate to you of wliat part of that was profit. In-.other words what pari of that represented the earnings from.his own personal services. He claims that about sixty per cent of the entire receipts represented the cost of the goods and the- cost-of the'work on the goods by other people in making tire garments, and that it left about forty per cent for 1ns own services,-excepting that he had to pay the rent out-of that. Ás I figured roughly, the loivest gross earnings daring those years, figured in this way, at sixty'per cent expenses, and forty per cent profits, with the office rent, to" be deducted, would show that his net earnings for this corresponding period .of six months in one of these six years preceding the accident was $875 ; that is the lowest amount according to his testimony.;, and that the highest amount- of Iris -net earnings deducting his -office expenses, and the expense of cost of .goods," and manufacture for any of these years was $1,126, for this corresponding six.months.. How those, figures are not controlling, upon' you. - The. application of those figures is just this : Of course it is. quite uncertain wliat a man would earn in future, but a man who had a business such as he had, a jury is permitted to receive and hear the evidence, as to what his earnings - have been for a reasonable period- of. time as an aid to them in looking into the future and seeing wjrat his business'woiild probably be during the period of-disability, during the period of six months here that lie -claims lie. was incapacitated .from performing work except to the extent of a small amount, you will remember. I think lie said the gross receipts during the six months were $6.01, and the cost of goods ■ and office rent would- nearly equal that, or practically equal that. .'Of course, as I -observed, these figures are not at all controlling. . It is for. you. to say .what the probabilities are, if this man had not been injured- he would have earned in his business during those six months, .and these figures áre given to aid you in arriving at a proper conclusion on that subject.”'

An exception was taken to these instructions, and the court was requested to charge that there was no evidence on which they could base an award for loss or injury to his business, which was declined with exception.

We think no error was committed by the trial court in receiving this evidence and submitting it to the jury in the charge. We need only refer to two cases decided by the Court of Appeals. (Kronold v. City of New York, 186 N. Y. 40; Weir v. Union R. Co., 188 id. 416, and cases therein referred to.)

The opinions in these two cases considered the former decisions of the Court of Appeals. They are in no way conflicting, and the rule there laid down must be applied in this case. It was as follows: “ Where the facts disclose such a preponderance of the business element over the personal equation, or such an admixture of the two that the question of personal earnings could not be safely or properly segregated from returns upon capital invested, the income or profits from a business should not be considered in determining the amount of the damages to which the plaintiff is entitled.” (Weir v. Union R. Co, supra.)

In the Kronold case the plaintiff was engaged in selling Swiss embroideries. He took orders from shirt waist manufacturers, who dealt in such articles. The sales were made from designs or drawings procured from sample embroideries. ■ Ho considerable stock was carried by him, the capital invested being approximately $1,000. His office expenses, which included rent and wages of an office boy, did not exceed $600 a year. His net income was about $3,000 a year, which was derived chiefly from his personal efforts as a canvasser or salesman. He employed no salesmen or drummers, but did all the work himself.

It was held that the case should be classed as one involving the investment of an insignificant capital, as a mere, incident or vehicle to the performance of services, almost if not quite purely personal in their nature, and, therefore, proof of profits of the business could be given and considered as an element of damages.

In the Weir case the plaintiff, who was usually employed as a boatman, had for six or seven months prior to the accident rented a room immediately adjoining the street along the side of a liquor store. . In this place lie conducted a lunch business and sold oysters, clams, crabs, lobsters, beef, stew and fish. There Were sittings for six to eight people,, and- the food was eaten there. Some of the time he had two or three men; at the time of the accident he had but one man." Oysters and' clams were opened as ordered, and were the principal articles of food sold, The plaintiff purchased them by the barrel.- The supplies and sales varied to such an extent that the number of, persons employed was changed from time to time. It did not require any particular skill or ability to manage the business, and plaintiff had no particular skill or ability in opening oysters or clams, or serving food. He did a business of $120 -or $140 a week, and his expenses for help were $10 to $12, and for- stock $40 per week, and his rent $10 per month.. He sometimes left the business with his employees and it was continued for several weeks after the accident, although the plaintiff, was not present. The business, might have been continued until plaintiff fully recovered, by the employment of help.

It was held that ' evidence as to profits of the business was improperly received, and that the testimony should have been confined to the value of the' plaintiff’s individual services during the time that he was unable, by reason of his injuries, to perform the same; that under the rule laid down in the Kr'onold case, the question of personal earnings was too much involved in this ease with-the ordinary chances of a business venture to allow the profits on plaintiff’s business to be considered in, determining what damages the defendant should pay to the. plaintiff.

It would not be useful for us to consider, analyze or quote from the earlier cases, which were sufficiently referred to and discussed in these two' cases. It may be unfortunate that the lines have come to be so closely and. narrowly drawn- as to this element of profits, in the measure of damages,, but that is .no. concern of ours.' "We are to follow the Court of" Appeals, as best we can, in each individual case; It seenis to us our case is to be classed with the Kronold case, and, therefore, the trial court properly received the evidence complained of, and submitted it to the jury as it did,.

All concurred.

Judgment and order affirmed, with, costs.  