American Ry. Express Co. v. Baer

*356 MILLER, J. Mrs. Lucien Baer sues the American Railway Express Company, a corporation for damages for failure to deliver, for a reward, within a reasonable time, a sable scarf fur. A. Nachman, as agent of plaintiff, delivered it to the defendant on October 18, 1920, to be shipped by the express company to Gottlieb Bros., New York. On October 22, 1920, after its arrival in New York, the fur was stolen by an employe of the defendant. The authorities of the United States arrested the thief, secured from him the fur, kept it as evidence in the criminal case until January 19, 1921, when it was delivered to the defendant, and defendant on the same date delivered it to Gottlieb Bros. There was judgment for plaintiff, and the defendant appeals. The undisputed evidence shows this fur belonged to the plaintiff, and had been used and was intended to. be used by her as wearing apparel; it was shipped to New York to have some small repairs made¡ and was to be returned to A. Nachman for plaintiff. There is no evidence indicating that defendant had any notice or (knowledge of these facts at the time of shipment. It was repaired and returned to her. In L. & N. R. R. Co. v. Cheatwood, 14 Ala. App. 175, 68 South. 720, we find: “Where the proximate result of the delay is the loss of the use of the goods and the carrier has notice or knowledge of facts that would apprise it that plaintiff would sustain loss in that particular, the measure of damages is the value of the use during the time of delay.” Seo, also, So. Ry. Co. v. Langley, 184 Ala. 524, 63 South. 545. In 10 Corpus Juris, p. 312, § 449, headnotes 34, 35, we find this general rule: “Where goods are not intended for the market * * * but if they consist of articles of clothing * * * which cannot properly be said to have any rental.value, the measure of damages is ordinarily the reasonable value of the use of the property to the owner during the time of the delay.” A. Nachman testified he was a drygoods merchant in Montgomery; that he knew prices of furs—Russian sable furs like this one—between October, 1920, and January, 1921; that there was a depreciation in their value during that time. He was asked this question, over objection of defendant, to which exception was reserved: “What would ■ you say that depreciation amounted to, Mr. Nachman?” The witness answered: “The depreciation during that period amounted to not less than from 33% to 50 per cent.; this particular Russian sable fur depreciated to that extent.” Section 445, p. 309, of 10 Corpus Juris, reads as follows: “For unreasonable delay in the transportation of nearly all classes of goods the shipper is entitled to recover the difference between the market value of the goods at the time and place at which delivery should have been made and their market value when delivery was actually made. In the nature of things, such damage, it is said, is deemed to have been within the contemplation of the parties at the time the contract was made, as a probable consequence of an unreasonable delay.” ' There are well-known exceptions to tbiis rule. One has already been stated in this opinion. 10 Corpus Juris, p. 312, § 449. The question should have called for the difference in the market value of the fur at New York, the place of delivery, at the time it should have been delivered and the market value of it'there when it was actually delivered, if the defendant had no notice at the time of shipment that it was intended for wearing apparel of the owner. L. & N. R. R. Co. v. Cheatwood, 14 Ala. App. 175, headnotes 4 and 5, 68 South. 720; So. Ry. Co. v. Langley, 184 Ala. 524, 63 South. 545, headnote 4; So. Ry. Co. v. Moody, 169 Ala. 292, headnote 3, 53 South. 1016. The objection to the question was general. No ground at all was given the court why the question should not be asked. The witness displayed knowledge of the value of furs, these kind of furs at that time: his testimony and the answer indicated their depreciation to that extent everywhere during that time; and the court will not be put in error for overruling the objection, as no ground was stated, and the question did not call for evidence obviously illegal, and, no motion was made to exclude the answer. Williams v. Gallyon, 107 Ala. 439, 18 South. 162; Giddens v. Bolling, 92 Ala. 586, 9 South. 274; Brennon v. Vogt, 97 Ala. 647, 11 South. 893; Richards v. Bestor, 90 Ala. 352, 8 South. 30. There was evidence that the value of the fur was $400 or $450 when purchased. There is evidence which, if believed by the jury, would entitle the plaintiff to recover. The general charge for defendant, with hypothesis, was therefore properly refused by the court. The defendant requested the court to give written charges 2, 3, 4, and 6. The court refused to give each of these charges. The defendant is responsible for the damages for the delay in delivering the fur which was caused by its negligence. L. & N. R. R. Co. v. Cheatwood, 14 Ala. App. 175, 68 South. 720, headnotes 7 and 8. The fur was stolen While in transit by an employe of defendant. *357 The employé was arrested by the federal authorities; the fur was found in his possession; the fur was retained by the officials as evidence against the employé of defendant on his trial for the offence. The defendant was guilty of negligence in permitting the fur to be stolen by its servant. The retention of the fur by the officials as evidence on the trial of the employé of defendant for the criminal offense was a delay in the delivery of the fur proximately caused by that negligence of defendant, and the defendant would be responsible for the damages, if any, for that delay in the delivery of the fur. Hence there was no error in refusing those written charges, and the court did not err in charging the jury orally as follows: “It is admitted here that it was stolen from the express company, that it was stolen and then kept by the government as evidence in the case, the defendant’s contention being here that he should now be excused for not delivering the fur for the reason that the government was holding it as evidence; but I charge you, as a matter of law, that you must not consider this holding of the fur by the government a defense for failure to deliver.” See So. Ry. Co. v. Langley, 184 Ala. 524, 63 South. 545; So. Ry. Co. v. Moody, 169 Ala. 292, 53 South. 1016; L. & N. R. R. Co. v. Cheatwood, 14 Ala. App. 175, 68 South. 720; Bennett v. Am. Ex. Co., 83. Me. 236, 22 Atl. 156, 13 L. R. A. 33, 23 Am. St. Rep. 774; Merriman v. Gr. North. Ex. Co., 63 Minn. 543, 65 N. W. 1080. We find no error in the record,- and the judgment is affirmed. ANDERSON, C. J., 'and SAYRE and GARDNER, JJ., concur.