concurring in part and dissenting in part.
I concur in the result reached in the cross-appeal by Century. However, I respectfully dissent from the opinion expressed by the majority in the appeal of Triple R.
The district court was correct in concluding that Triple R failed to establish tortious interference and failed to adequately prove damages resulting from interference, if any. Since the evidence adduced at trial made the matter of liability at least arguable, I will discuss only the question of damages. On this issue, Triple R fell conspicuously short of the mark.
I agree with the majority that the basic rule on damages for prospective profits, the only measure even sought to be established by Triple R, is set forth in K & R, Inc. v. Crete Storage Corp., 194 Neb. 138, 231 N.W.2d 110, 114 (1975):
The general rule is that prospective profits from an established business, prevented or interrupted by the tortious conduct of the defendant, are recoverable when it is proved (1) that it is reasonably certain such profits would have been realized except for the tort, and (2) that the lost profits can be ascertained and measured, from evidence introduced, with reasonable certainty. 22 Am.Jur.2d, Damages, § 177, p. 252. Such lost profits must not be speculative, remote, or imaginary, but must be established with reasonable certainty by the evidence. 22 Am.Jur.2d, Damages, § 178, p. 253; NJI No. 4.50. In Kaufman v. Tripple, 180 Neb. 593, 144 N.W.2d 201 (1966), this court stated: “The law generally is unfavorable to the recovery of losses of profits in tort actions. But a recovery of profits does not rest on the fact that they are profits but because they are ordinarily speculative, contingent or uncertain.” In numerous cases this court has held that damages in the nature of anticipated profits on conjectured, expected, or hopes for sales cannot be recovered. Such damages are too speculative, remote and consequential; they lack the element of certainty necessary to authorize a recovery therefor.
I also agree that El Fredo Pizza, Inc. v. Roto-Flex Oven Co., 199 Neb. 697, 261 N.W.2d 358, 364 (1978) (quoting Fisher v. Hampton, 44 Cal.App.3d 741, 118 Cal.Rptr. 811 (1975)) stands for the proposition that “ ‘[uncertainty as to the fact of whether any damages were sustained at all is fatal to recovery, but uncertainty as to the amount is not.’ ”
It is difficult to tell whether the appendix contains a transcript of all of the testimony and copies of all of the exhibits. However, it appears that only the testimony of Ervin R. Rogers, an officer and thirty-five percent shareholder of Triple R, dealt in any substantial way with proof of damages. The only additional evidence on the matter of damages is contained in Exhibits 23A, 23B and 23C, income tax returns for two corporate fiscal years extending from August 1, 1983, through July 31, 1984 (FY 1983); and August 1, 1984, through July 31, 1985 (FY 1984). The 1984 fiscal year return was filed in two parts.
The substantive testimony on damages by Rogers, other than that presented as foundation for the tax return exhibits, consisted of a failed attempt to recite hearsay statements purportedly made to Rogers by his CPA. These alleged declarations were, of course, properly excluded from the record by the district court.8 Therefore, the only good evidence of the existence or amount of damages suffered by Triple R must be gleaned from the tax returns for the two fiscal years.
The returns, standing alone, prove nothing. The portions in evidence are confusing and may be incomplete. Further, in FY 1984, the year used to show the purported impact from the alleged tort, two returns were filed because of a change in corporate status for tax reporting purposes. It appears that the corporation changed from a cash basis as a Subchapter S corporation to *241an accrual basis as a regular corporation. How these returns can be used to establish lost profits extending through calendar or fiscal 1985 and 1986 is baffling.
They show a slight decline in gross sales between FY 1983 and FY 1984 and a decrease in the difference between cost of goods sold and the gross receipts from sales. However, without an explanation of the figures, and there was none, they prove little, if anything, of value.
The majority admits that proof of damages with reasonable certainty is a close question. It then contends that the above referenced returns, coupled with Triple R’s theory that Century caused a “total failure” of its business, are sufficient to preserve for Triple R most of the judgment for damages returned by the jury. Of course, there is no evidence of a total failure in Triple R’s business caused by Century’s tortious interference with Triple R’s relationship with the Union Pacific Railroad. Indeed, the evidence points the other way.
Rogers testified that in FY 1983, Triple R’s best year, Tr. at 58, Union Pacific accounted for ninety percent of Triple R’s sales. Id. at 31. In FY 1984, however, the percentage had dropped according to Rogers to “45 to 50 per cent [sic] because by that time we had gotten other railroads as customers and they were consequently buying an equal volume of product.” Id.
In FY 1983, Triple R claimed profit from sales to the Union Pacific (purportedly ninety percent of its sales), of $79,000 to $80,000, id. at 75, as compared with a total gross profit for all sales as shown on the FY 1983 tax return of $155,646. Thus, the non-Union Pacific profits in FY 1983 must have been exceedingly good, e.g., ten percent of the sales accounted for $75,646 in gross profits. Then, in FY 1984, when sales to other railroads had increased to forty-five to fifty percent of Triple R’s volume, gross profits, according to the tax returns, dropped to $17,537. The only conclusion that can be drawn from this is that the margin of profit on sales had dropped for all railroad business or that expenses, not attributable to the alleged tort, had increased dramatically. In this regard, it is clear from the tax returns that the expenses other than cost of goods sold increased in FY 1984 by at least $75,505.
Thus, it seems almost ludicrous for Triple R to contend that it established that its business became a total failure because of tortious interference by Century in Triple R’s business relationships with one customer, the Union Pacific Railroad.
Further, Kelly Kephart, an accountant employed by Century, testified that in calendar years 1984 and 1985, Triple R purchased a total volume of $100,000 worth of Century products per year. Applying such a volume to the total sales reported by Triple R on the tax returns in evidence, the maximum damages generated by the loss of all of the Century sales, even if totally attributable to the alleged torts of Century, would have been but a few thousand dollars per year. Also, the $200,000 decline in sales in FY 1984 referred to in the majority opinion could not have been attributable to loss in sales of $100,000 worth of Century products, whatever the reason for the decline.
In sum, I believe that to permit Triple R to retain the benefit of a judgment in the amount of $213,714 based upon the evidence presented at this trial is a miscarriage of justice. Thus, I would affirm the trial court on the judgment notwithstanding the verdict in favor of Century.
. This attempted use of hearsay also causes one to wonder why the CPA was not called as a witness.