The opinion
Mr. JUSTICE GREEN, concurring:
I concur in affirming the determination that defendant is liable and in vacating the award of damages and remanding for a new trial on that issue. I agree that reversible error occurred by permitting the expert witnesses to testify to an opinion of value without sufficient foundation evidence having been produced or recited in the hypothetical question asked them.
Determination of the proper measure of damages for the loss of the type of property involved here is exceedingly difficult. I appreciate the impropriety and dangers involved in our giving an advisory opinion. Because of the peculiar circumstances of this case, however, I feel that we are remanding without giving guidance for the retrial.
The property had no market value. The majority properly adopt the statement from Flynn v. Zimmerman that, accordingly the value must be determined in a rational way from such elements as are obtainable. The opinion in that case also stated that lack of market value does not restrict the plaintiff to nominal damages. To the extent that the property here consisted of notes, it also had no ascertainable replacement cost. Although use of the notes would appear to enhance the plaintiff’s coaching ability and, therefore, his earning capacity, no dollar amount could be placed upon that. Neither time nor money figures can be shown to properly reflect the cost of the notes because they were acquired as a result of observing, conversing, and attending clinics while also gaining many other benefits. Unless some other method of proving damages is available, plaintiff will be limited to nominal damages.
Here, the evidence indicated that the notes were primarily of value to the person who had made the notes. Under the circumstances of this case, I deem the measure of damages to be the value to plaintiff and the only rational way to determine that value is, as plaintiff attempted here, to prove that value by the opinions of other persons in the field. The opinion, however, must be given upon a more specific description of the notes. Only by permitting testimony of this conjectural nature can a plaintiff in the instant situation obtain other than nominal damages.
If the court does permit introduction of this type of evidence as the only type available to prevent a wrong, a correlative burden is placed upon the court to set aside awards which are excessive.