On Motion for Rehearing.
Appellee has filed an able and vigorous motion for rehearing insisting that we erred in sustaining appellant’s fifth and sixth points. Our original opinion states in substance all the testimony in the record upon the issue of appellee’s “lost earnings.” Appellee objects to- our statement that “it appears probable that a large proportion of the damages awarded” was based upon this item. There is no substance in this complaint for it can not be said that the jury did not consider this item of “lost earnings” in arriving at its estimate of damage. The proportion of the sum of the judgment awarded by reason thereof, be it large or small, is not controlling. Upon the record, we can not apportion the amounts of the judgment to the various elements which the jury were instructed to consider in one issue inquiring as to the amount of damages. If the evidence does not support a recovery for “lost earnings,” our order of reversal must stand.
Wood was engaged in business. He was not employed at a fixed or definite wage or salary.
We quote a part of § 96, 15 Am.Jur. 506, cited in our original opinion: “How far compensation for injury to one engaged in business may include the value of his services in such business must depend upon the nature and extent of the business, the amount of his personal direction and labor connected with the business, and the amount of capital invested and labor employed. * * * ”
We construe appellee’s statement that he was making “about $300 a week” prior to his injury as the statement of an inference or a conclusion, but if it be considered as a statement of fact, it could at most be construed as a statement that the profits from his business amounted to about $300 per week prior to his injury. However, it seems well settled that evidence showing a diminution of profits from a business does not in itself establish a measure of damages. 15 Am.Jur. 508, § 98.
From the authorities cited in our original opinion, it is apparent that under a construction of the testimony most favor*147able to appellee, he testified at most to but one of the numerous elements which must be taken into consideration in determining the amount of compensation to be paid for loss of earnings sustained by one engaged in the operation of a business.
Further, upon cross-examination, appellee could not, or did not, give any information by which his statement (that he had made $300 per week prior to his injury) could be verified or evaluated although pertinent inquiries were directed to him for that particular purpose. The sum total of appellee’s testimony is this: I made $300 per week prior to my injury. My earning capacity was eliminated for ninety days. I am out $5,000. I can give you no further information about the matter.
We think that both the statement as to $300 a week earnings or profit and the $5,000 loss are essentially in the nature of inferences or conclusions supported by no disclosed adequate factual data. Upon appellee rested the burden of proving facts from which the jury can ascertain the proper amount of damages. This burden could not be shifted by appellee’s testifying to unsupported conclusions. We adhere to our holding that appellant’s fifth and sixth points present reversible error and appellee’s motion for rehearing is overruled.