The appellee recovered a judgment for the loss of profits she claims she would have made in a business operated by her which she claims was destroyed by the appellant.
The appellant owns, and for a number of years has been operating, a manufacturing plant on the banks of Tallahala Creek at Laurel, Mississippi, and discharges daily from this plant into the creek a large amount of water containing wood fibre. Tallahala Creek flows into Leaf River and Leaf River into Pascagoula River. The appellee owns lands on Pascagoula River and there operated in 1941, and several years prior thereto, a fishing resort equipped with all necessary fishing facilities, and for a compensation would supply those who came thereto with boats, bait, board and lodging. According to the appellee's declaration and evidence "a tremendous slug of said fibre" came down Pascagoula River in June 1941 and killed practically all of the fish therein, "leaving only such few as managed to run up into lakes and branches;" because of which "it would probably have taken three to five years for fish life to be restored in the streams, if there had been no further polution." After this killing of the fish, fishermen ceased to come to appellee's fishing resort for the reason that "one could catch so little fish that it was not worth while to try," because of which, her "business was substantially destroyed or virtually so." There was another destruction of fish in *Page 540 this river from the same cause in 1942, and another in July, 1943.
The appellee sues for loss of profits from this business. Her declaration covers the whole period between July, 1941 and the filing of her declaration in October, 1943, but it developed in the evidence that the appellant had paid her for all damage sustained by her in 1941 and 1942 because of the killing of the fish in those years. Consequently, she limited her claim by her requested instructions to loss of profits in 1943. The declaration also claims damages for fish "killed in boxes" belonging to the appellee, and for depreciation in value of her equipment, but no claim therefor was made at the trial.
This is not an action for immediate, but for consequential, injury to the appellee caused by the killing of the fish in the Pascagoula River, and since she has been compensated for the injury occasioned her by the killing of the fish in 1941 and 1942, the action must be limited to one for the killing of fish in 1943. It sounds in damages and a cause of action appears if, but not unless, it is "shown with reasonable certainty that damage was suffered (by the appellee) and that such damage resulted from the act or omission complained of (the killing of the fish in 1943.)" 25 C.J.S., Damages, Section 27; 15 Am. Jur., Damages, Section 20; Kress Company v. Sharp, 156 Miss. 693,126 So. 650, 68 A.L.R. 167.
The evidence as to appellee's damage is in substance, as follows: She was equipped to accommodate forty-five guests at one time, and her profit from the business prior to 1941, was about $2,500 per annum. In 1943, only a few guests came to the appellee, and they would remain only a few days, from whom she received not more than $15 per month. What her expenses were for operating the business that year does not appear. There is nothing in this evidence that would warrant a jury in finding that but for the 1943 killing of the fish, the appellee would have had more patrons during that year and would have made a greater profit from the business than she in fact *Page 541 did. In other words, damage to the appellee because of the killing of the fish in 1943 does not appear with such reasonable certainty as to warrant a jury in acting thereon. From this, it follows that the court below should have granted the appellant's request for a directed verdict in its favor.
This opinion assumes, but merely for the purpose of the argument, that the damage here sought is recoverable if properly proven.
Reversed and judgment here for the appellant.