Hardwick v. Dravo Equipment Co.

*630 LENT, J.,

specially concurring.

I concur in the opinion of the court as to thé result reached. j

I cannot, however, endorse that portion of the opinion concerning the quantum of proof necessary to establish a claim for lost profits. It is true that a line of decisions of this court has established the rule that to recover for lost profits the claimant’s evidence must afford a sufficient basis for estimating the amount of such profits with "reasonable certainty.” See, e.g., Kwipco, Inc. v. General Trailer Co., 267 Or 184, 188 , 515 P2d 1317 (1973). Since both plaintiff and defendant presented this case upon the basis of the rule of those cases, there is no occasion for me to dissent from this portion of the opinion of the court.

The genesis for this rule in Oregon appears to be Blagen v. Thompson, 23 Or 239 , 31 P 647 , 18 LRA 315 (1892). There, in an action to recover damages for breach of contract in which there was a claim for lost profits, the court quite properly stated that one may recover such damages "including gains prevented as well as losses sustained” as were reasonably found or supposed to have been within the contemplation of the parties at the time of the making of the contract as "proximate and natural consequence” of a breach. The opinion went on, however, to quote the "admirable statement of the rule” from a New York case:

"* * * that the party injured is entitled to recover all his damages, including gains prevented as well as losses sustained; and this rule is subject to but two conditions: The damages must be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract, that is, must be such as might naturally be expected to follow its violation; arid they must be certain, both in their nature and in respect to the cause from which they proceed.” Griffin v. Conner, 16 NY 489 (1858). (I quote from the original rather than from Blagen because the quote in the Oregon Reports is not exact. I perceive no substantive change in meaning, however.)

*631 It is not clear to me what the author of Griffin meant by his use of the word "certain.” I needn’t deal with his term, however, because the succeeding Oregon cases, from Blagen to the opinion of the court in this case, have at least reduced the quantum from certainty to reasonable certainty. 1

I must confess, however, that I have no more idea what reasonable certainty means than I have as to the meaning of certainty. I would assume that it is some lesser quantum of proof than that we require in criminal cases; namely, proof beyond a reasonable doubt or to a "moral certainty.” We have interpreted that quantum as meaning that the facts asserted are "almost certainly true.” Cook v. Michael, 214 Or 513, 527 , 330 P2d 1026 (1958).

Logically, my next inquiry must be whether reasonable certainty means something more or less than the quantum of proof produced by clear and convincing evidence. In Cook we stated that to mean that the truth of the facts asserted is "highly probable.” 2

Prior to Cook trial judges very often instructed juries that the party having the burden of proof in a civil case had to establish his case by a preponderance of the "satisfactory evidence” and then gave the statutory definition of that term:

"Satisfactory evidence is that which ordinarily produces moral certainty or conviction in an unprejudiced mind. It alone will justify a verdict. Evidence less than this is insufficient evidence.” ORS 41.110.

In Cook this court rejected the use of that definition in civil cases and further stated that proof by a prepon *632 derance of the evidence means that the trier of fact must believe that the facts asserted are more probably true than false.

Whether there should be any varying quanta of proof in civil cases is probably not an appropriate subject of discussion with respect to the case at bar. I would note, however, that since 1862 (General haws of Oregon, § 835 ( Deady 1862 )) the statutes have provided that in civil cases the finding shall be according to the preponderance of evidence. See ORS 17.250(5). Perhaps the bench, the bar, and the public would be better served by abandonment in civil cases of all discussions of the necessary quantum of proof other than those imposed by statute. Especially I conceive this to be so with respect to those labels which have no precise meaning which I am able to apply in testing evidence for submission to the trier of fact.

This court has sometimes indicated that the rule is peculiar to tort actions. See, e.g., Randles v. Nickum & Kelly S. & G. Co., 169 Or 284, 286 , 127 P2d 347 (1942). The court has applied the rule, however, both in cases ex contractu and ex delicto.

Carelessness in the use of' terms describing the quantum of proof also originates with the legislative branch. See use of the term “clear and satisfactory evidence” in ORS 756.594 as quoted in Dickinson v. Davis, 277 Or 665, 668 , 561 P2d 1019 (1977). For the purpose of this specially concurring opinion, I have no desire to open that can of worms.