#### DOTY v. L. T. CAMPBELL CONST. CO. et al.

No. 7295.

Court of Appeal of Louisiana Second Circuit.

Feb. 21, 1949.

On Rehearing Oct. 28, 1949.

Irion & Switzer and Harry A. Johnson,. Jr., all of Shreveport, for appellants.

Campbell & Padgett, of Benton, for ap-pellee.

KENNON, Judge.

This is a suit by plaintiff, a retail liquor dealer, against the L. T. Campbell Construction Company and its insurer for the cost of repairing an outside Neon sign and for the loss of revenues while this sign was out of use. Defendants admitted the negligence of their repi esentative and tendered to plaintiff the full cost of repairing the damaged sign and trial was had upon plaintiff’s demand for $1230.87 as “loss of revenue from sales’’ during the time the sign was undergoing repairs.

From a judgment of the District Court granting plaintiff judgment for the repair cost plus $108 for loss of revenue or profit, defendants have appealed.

Plaintiff did not answer the appeal and: in brief asked that the judgment in his favor' be affirmed.

We shall first discuss defendants’ contention that plaintiff’s demand for “loss of revenue” during the thirty-day period in which the sign was out of commission was not equivalent to a demand for loss of profits, defendants in brief arguing that the word “revenues” included “the value of merchandise, the cost thereof, the cost of operating his business, and the gross and net profit.”

The word “revenue” is one used in many senses. One of the recognized meanings being, see Webster’s Dictionary, “that which returns, or comes back, from an investment.” Again, the “annual rents, *279profits, interests, or issues of any species of property, real or personal.” The dictionaries give the word “revenue” other meanings, particularly the proceeds to public bodies from taxes,’ etc. Sufficient for ■the decision in the case before us is it to say that the word “revenue,” like many others in the English language, is ambiguous in meaning and often the meaning which should be ascribed to it is best determined by an examination of the words with which it is connected. Paragraph five of plaintiff’s petition stated, “that as a direct result of this said loss the total revenues received by petitioner from the operation of his business during the period stated, (the thirty days during which the sign was out of use), were decreased considerably, * * He itemized his damages as “Loss of Revenue from Sales, $1230.87.”

A reading of the petition, including the above quoted portion, fairly apprised the defendants that plaintiff was seeking '$1230.87 for loss of profits due to the absence of the damaged sign while repairs •were in progress.

Plaintiff’s liquor store is located on U. S. Highway No. 80, just east of Shreveport in Bossier City, Louisiana. The record shows that the sign was damaged on November 16, 1947; that repairs were ■instituted without delay and the sign was replaced on December 16, 1947. Plaintiff testified that his average net profits amounted to *9.09%*and that his sales for the thirty-day period preceding the damaging of the sign grossed $3629 — for the thirty-day period while the sign was out of use, the sales were $2679.94; for the thirty-day period following the re-use of the sign, $5940.20. The receipts for the second and third months prior to the damaging of the sign were $3655.93 and $3476.94, respectively, and the gross receipts for the second month following the re-installation of the sign were $3648.46. The District Judge gave an award of $108, which would be *9.09%*of approximately $1200.

Defendants have correctly noted that the larger gross sales during the period December 16th to January 16th can.be explained by the occurrence of the holiday season and the larger sales of liquor. ■ The amount of the District Court's award to plaintiff for recovery for reduced gross sales indicates that it is based principally on business prior to the damaging of the sign and since plaintiff did not appeal or file an answer to defendants’ appeal, it is unnecessary for the Court to consider whether, in the computation of plaintiff’s loss of business, the large gross receipts, shown during the holiday period should be given nearer equal consideration with the receipts during the late summer and fall months.

Having found that the record sustains the judgment of the District Court, the same is affirmed, with costs.

On Rehearing

TALIAFERRO, Judge.

The application for rehearing in this case was favorably acted upon because a majority of the Court’s membership, after further study of the record, reached the conclusion that it was very doubtful if plaintiff had proven his demand for damages to that degree of certainty sufficient to warrant the judgment awarded him by the lower court. The only issue in the case involves the claim for loss of profit on account of the neon sign not functioning, due to injury, and for the period from November 16 to December 16, 1947.

Plaintiff alleged, but -offered no testimony whatever to substantiate Ithe allegation, that his “trade consists largely of transient travelers along Highway 80” on which his place of business is located. In the absence of any proof to support this allegation, it must be ignored and it will be assumed that plaintiff’s trade mainly came from the lp-cality in which his business is situated by customers acquainted with its location. He, alone, testified in his own behalf.

Plaintiff attempted to substantiate his claim for loss of profits by adding the gross sales for the three months prior to the sign being knocked down to that of the three months following restoration thereof, and from the average of these six months subtracting the amount of gross sales for the month the sign was not functioning. *280This difference, he reasons, would represent the shrinkage in sales for this period. The amount of gross sales for said period of six months, according to plaintiff’s testimony, is as follows:

> Aug. 16 to Sept. 16 $3,530.17

> Sept. 16 to Oct. 16 3,629.01

> Oct. 16 to Nov. 16 4,063.36

> Dec. 16 to Jan. 16 5,752.79

> Jan. 16 to Feb. 16 3,522.95

> Feb. 16 to Mar. 16 3,292.43

> Total $23,790.71

> 6 month average 3,965.12

> Sales Nov. 16 to Dec. 16 2,761.94

> Estimated Loss $1,203.18

The average-in gross sales mounted materially by the sales during the Christmas holidays.

Plaintiff testified that he made a profit on gross sales equal to .0909%, and granting that the falling off in sales from November 16th to December 16th amounted to $1,203.18, his loss in net profits for the period would be but $109.18. However, we are of the opinion that the proof is clearly inadequate to justify a judgment in his favor for any amount. The sales fluctuated over the six months period from a high of $5,752.79 (including Christmas trade) to a low of $3,292.43 for the period from February 16 to March 16, 1948, which latter amount is only about $500 in excess of sales for the period the sign was out.

The testimony.of plaintiff shows that for several days during this period, sales were far in excess of many days prior to the time the sign wás damaged, and also after it was repaired. These sales, and others in the record) demonstrate clearly the lack of probative value of these figures to determine the extent of loss in gross sales, if any, for the period the sign was not functioning. It is possible some loss in sales was sustained while the sign was out of commission but the amount thereof is not fixed by the record to that nearness which would warrant a judgment. Of course, the burden rested upon the plaintiff to- sustain his demand by a preponderance of the evidence. He has not done this. • '

Defendant, on March 13, 1948, tendered and deposited in the registry of the Court the sum of $239.57, being the cost of repairing the sign, liability for which it admitted, plus interest and court costs to that date.

Therefore, for the reasons herein assigned the judgment appealed from is annulled, avoided and reversed insofar as it awards damages to plaintiff for loss of profits in business, but as to the award of judgment for costs of repairing the sign, it is affirmed. Plaintiff is cast for costs that accrued since the date of tender, while defendant is cast for costs to that date.

KENNON, J., dissents, adhering to opinion originally rendered.