Kansas Supreme Court - 99536 – Wolfe Electric, Inc. v. Duckworth

Like the earlier errors, whether these require reversal depends upon our analysis of
other alleged instructional errors.
d. Defendants' allegation that parts of Instructions 5 and 8 were not supported by
the evidence
Both defendants argue the trial court committed additional instruction error when it
instructed the jury on two categories of damages without evidence to justify them. They
contend these parts of the instructions therefore encourage the jury to speculate as to
damages, citing Venable v. Import Volkswagen, Inc., 214 Kan. 43, 50, 519 P.2d 667 (1974)
("The jury should not be allowed to merely speculate in arriving at damage[s] . . . . One
who claims damages on account of a breach of contract must not only show the injury
sustained, but must also show with reasonable certainty the amount of damage suffered as a
result of the breach.").
Defendants specifically argue a lack of evidence to support instructing on the
damage claims for lost opportunity for sales and loss of good will. They point out that
Instruction 5 instructed the jury to award damages for Duckworth's breach of his
employment contract by considering "any of the following elements of damage that you
find were the result of the breach": "(2) loss of opportunity for sales of conveyor pizza
ovens; . . . and "(4) loss of good will."
Instruction 8 authorized the jury to award damages for Duckworth's breach of his
fiduciary duty. It is identical to Instruction 5 regarding the categories for which damages
were sought, e.g., loss of opportunity for sales of conveyor pizza ovens and loss of good
will. Damage categories were not so delineated in Instruction 13 regarding the claim for
Global's tortious interference. More important, we independently observe Instruction 13
incorrectly states that for this cause of action damages should be awarded sufficient to
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