As previously stated, this insurance program, geared to sales of a food product, was without precedent in the industry. No evidence of past profits was possible nor could the experience of others be utilized. The only evidence which the parties presented dealt with the opinions of experts in the field of school-child accident insurance.
None of these experts had experience with a promotion of the nature involved in this case. There was a singular lack of any evidence which would afford a basis for a reasonable approximation of whether an insurance promotion of this variety would produce an 18 per cent profit. Even the plaintiffs' expert, an actuary of wide experience in the field, stated that he recommended to his clients that they avoid the school child accident and health business. (N.T.682) He further testified that loss ratios 'are pleasantly surprising and sometimes are disappointing.' (N.T.688) This testimony is hardly substantial enough to estimate the amount of profits that might have accrued in this venture.
Also, the testimony of the defendant's expert, a superintendent of an accident and health company, was to the effect that such a policy would have produced no profit. (N.T.709)
There are a number of speculative factors in this case which prevent a reasoned judgment of how much profit this program might have produced. While a 50 per cent loss ratio may be proper for setting the premium before the policies are sold, it does not necessarily follow that this ratio will remain constant after the policies are issued.
The final element of the plaintiffs' damages concerns their out-of-pocket expenses. These were incurred as a direct result of their efforts to formulate this program and eliminate any difficulties in its execution. Numerous plane trips and conferences with the defendant and its advertising agency, as well as conferences held with the insurance commissioners of various states constituted most of these expenses.
We feel that the $ 3,000.00 figure set by one of the plaintiffs, Mr. Edgeworth, is a modest amount. The defendant objects to this figure because the plaintiffs failed to produce any records to substantiate their claim, and further, that in a letter to defendant's counsel, the plaintiffs' attorney estimated the expenses to be $ 2,000 to $ 2,500 from an examination of the records. While the actual bills and records are the best evidence of these expenses we do not evidence that Mr. Edgeworth's opinion is exaggerated or inadmissible. He very carefully enumerated his various trips and meetings and the time he spent in each city. (N.T.635-648) This element of damage was definitely established with reasonable certainty.
CONCLUSIONS OF LAW
1. It has been established by the plaintiffs that they have in fact suffered substantial damages occasioned by the defendant's breach of contract.
2. Mathematical certainty as to the amount is impossible in this matter, but the plaintiffs have proved their damages with a reasonable approximation.
3. No contingent commissions can be determined with a fair degree of probability.
4. We find as a matter of law the following damages in favor of the plaintiffs: guaranteed commissions, $ 41,312.50; with interest from February 1, 1957 to February 1, 1964, at six per cent per annum $ 17,351.25; out-of-pocket expenses, $ 3,000.00; resulting in total damages in the sum of $ 61,663.75.
And now, this 27th day of February, 1964, judgment is entered in favor of the plaintiffs against the defendant for $ 61,663.75.