
    CAS 64. — ACTION BY B. R. DOUGHERTY AGAINST THEODORE WEICK.
    February 8, 1906.
    Weick v. Dougherty.
    Appeal from Kenton Circuit Court.
    Judgment for plaintiff, defendant appeals.
    Affirmed.
    1. Livery Stable Keepers — Bailment For Hire — Oar© Required.— Where plaintiff left his- huckster’s wagon and merchandise-therein in defendant’s livery -stable to -be -cared for during the night, having paid the usuial price for ¡such service in-¡advance, defendant became a bailee thereof for hire, and was bound to exercise -such diligence as would he exercised by a person of -ordinary prudence with reference to his own property,- -and if plaintiff’s property was destroyed by fire, and -could have been saved by ordinary diligence, defendant was liable. j
    2. Damages — Grounds of Recovery — Profits.—Where plaintiff’s huckster’s wa-gon was destroyed by fire while temporarily left in -defendant’s -livery barn for hire, plaintiff was- no.t entitled to recover profits- of -his business lost because ¡of the loss of his wagon. j
    3. Appeal — Damages—De Minimis Non Curat Lex. — Where -plaintiff was entitled under all the evidence to recover $352.45 for Ithe loss of his huckster’s wagon and contents, and the verdict rendered w-as only $362.45, which Was not ¡as mluch as the interest on the -damages which might have been -allowed' from the date ¡suit was brought until the time of the trial,, ¡defendant was not prejudiced by -an instruction erroneously -permitting -the- jury to allow, plaintiff $10 damages for loss-of profits of his business. >
   Opinion -of the Court by

Judge Settle

Affirming.

Appellee by tbis action in tbe Kenton circuit court sought to recover of appellant damages for tbe destmction of Ms wagon and its load of merchandise in a fire which consnmed the latter’s livery stable in the city of Covington. The complaint made in the petition was that appellant discovered the fire in time to have saved the wagon and contents, and by ordinary care could have saved, both after discovering the fire and before the property was consumed. By an amended petition, filed to make, more specific the averments of the original petition, appellee set forth in itemized form the articles of merchandise consnmed with the wagon, and the value of each, and also the value of the wagon, and in addition averred that appellant’s negligence in permitting the destruction of his (appellee’s).wagon and contents caused a temporary suspension of his business as a huckster, and a consequent loss to him of profits. The entire amount of damages claimed by appellee was $500. Upon the trial in the lower court appellee was awarded $362.45 damages by the verdict of a jury. Judgment was thereupon entered in his behalf for that amount, and the reversal of that judgment is sought by this appeal. The facts deducible from the evidence as a whole were as follows: Appellee, a huckster, residing at Williamstown, made stated trips to Covington, hauling such country products as appertained to his business. These he would dispose of in Covington, and there supply himself with a load of merchandise for sale or exchange upon his return to ■the country. The merchandise purchased in Covington would immediately be placed in his wagon, and the wagon, thus loaded, together with the horses used in pulling it, appellee had for several years been accustomed to leave at night, and until he got ready to return to the country, in appellant’s livery stable and to his care. As appellee usually started home about 6 o’clock in tbe morning, for convenience bis vehicle, by direction of appellant, was always placed on a wash floor on the west side of the stable about 30 feet from the door, and nearer thereto than any other vehicle. The wash floor sloped upward from the door and driveway, and in order to keep the wagon stationary while on the wash floor it was necessary to set the brake with which it was supplied. When ready to remove the wagon from the stable it was only necessary to release the brake, and the wagon, of its own weight and momentum, would run out on the street, the tongue being guided by the person releasing the brake. This manner of removing the wagon from the stable seems to have been known to, and was followed by appellant and his employes. On the day before the fire, appellee, as usual, left his wagon and team in appellant’s stable about 4 o’clock p. nr., and paid him in advance the usual price for having it and the horses cared for during the night. Appellee then returned to his home by rail, leaving the wagon to be carried to the country the next morning by his driver, who remained somewnere in the city that night. The fire by which appellant’s livery stable and appellee’s property were destroyed broke out about midnight starting in an adjoining building, from which it spread to the stable. According to appellant’s testimony, his servant, Q-lenn, with the aid of others, got all of the horses out of the stable, and he and appellant’s son got out all appellant’s vehicles except a small sulky, which was burned, although all the saved vehicles were further from the door, and nearer the fire, than appellee’s wagon. ¡Several light vehicles belonging to other patrons of appellant were also destroyed. It was stated by appellant on two occasions after the fire in spe'aldng of the loss of appellee’s wagon, “If I liad once thought vi that brake on the wagon, and thrown it off, it would have run out by itself. ’ ’

Appellant’s testimony tended to contradict much of that introduced by appellee, but we are not prepared to say that the jury erred in the verdict returned by them. It follows, therefore, that the lower court properly refused, in passing on the motion for a new trial, to disturb the verdict, upon the ground that it was flagrantly against the evidence. In respect of appellee’s wagon and merchandise, appellant was a bailee for hire, and therefore bound to use ordinary care to protect it from injury while in his possession. So, if by ordinary diligence or care, he could at the time of the fire have prevented its destruction, it was his duty to do so. And if the destruction of the property resulted from the failure of appellant to exercise such care, the loss, to the extent of its value, was properly made to fall upon him, and not upon appellee. Ordinary diligence or care is such as would be exercised by a person of ordinary prudence with reference to his own property, under the same or like circumstances to those which attended the burning of appellant’s stable. 3 Am. & Eng. Ency. of Law (2d Ed.) pp. 746, 747; Jackson v. Robinson, 18 B. Mon. 1.

The instructions given by the trial judge correctly advised the jury as to the law of the case, except that one of them authorized the allowance to appellee of damages for the loss of profits in his business as a huckster, alleged to have been caused by the negligence of appellant in permitting the destruction of his wagon. The jury should not have been allowed to consider such loss of profits in estimating appellee’s damages, nor should he have been allowed to introduce evidence upon that question. This is not the character of case in which damages can be recovered for loss of profits. “In an action io recover damages for an injury to property by reason of the •negligence of the defendant, the plaintiff cannot recover anything on account of his inability to instantly supply himself with other property in lieu of that injured or destroyed. Such damages are too remote to be the subject of judicial ascertainment. * * *” L. & N. R. R. Co. v. Tippenhauer, 10 Ky. Law Rep. 401; Koch v. Godshaw, 12 Bush, 318; 8 Am. & Eng. Ency. of Law (2d Ed.) p. 618.

It is insisted for appellant that as the jury were authorized by an instruction from the court to include in their estimate of damages loss of profits resulting to appellee by the destruction of his wagon, and such damages were improperly allowed by them, the error of the court in giving such instruction was necessarily prejudicial to appellant’s rights. Ordinarily this would be true, but we do not think the instruction in question was prejudicial in this case, as the damages allowed by the jury for loss of profits are not only readily ascertainable, but so insignificant in amount as to require the application of the maxim, “De minimis non curat lex.” In other words, the actual value of appellee’s wagon and merchandise, according to all the testimony on that point, was $352.45, and this sum the jury were compelled to award appellee as the actual damages sustained by him, if they found for him at all; so in awarding him $362.45, by the verdict returned, it is manifest that they allowed him only $10 for loss of profits resulting from the alleged interruption of his business by the destruction of his wagon.

Appellee’s petition was filed December 11, 1903, and the judgment appealed from was rendered November 11, 1904-, 11 months later; so if lie had been allowed for that time, interest on the $352.45, by tlie jury, as they might properly liave done, it would have amounted to $19.40, which would exceed the $10 allowed for loss of profits $9.40. Section 756, Civ. Code, forbids a reversal except for substantial error, and the only error here presented by the record affects in such slight degree the substantial rights of appellant that it will not justify a reversal.

Wherefore, the judgment is affirmed.  