Pilcher v. Central of Georgia Railway Co.

SIMPSON, J. This action was brought by the appellant against the appellee.to recover damages for the negligent delay by the defendant in delivering a car load of stoves, which were received by the defendant as a common carrier at Atlanta, Ga., on the 4th day of September, 1906, to be transported to Taylor, Ala. which said goods reached said Taylor on the 17th of September. It is claimed in the complaint that three [318] days was a reasonable time within which to carry said goods from Atlanta to Taylor. It is alleged in the complaint that said stoves were of novel form and make; that they were not purchasable anywhere, except at the factory in Atlanta, and there was no- market for them at Taylor; that plaintiffs owned three double teams of mules, and hired a driver for each, to he (and were) solely employed in the sale or peddling of the stoves so delivered; that during the time of the delay in the delivering of said stoves said teams and drivers were idle and unemployed; that the expense of feeding the teams was $3.50 per day, and the wages of the drivers $1.50 per day; and also that “the defendant, or its agent, or its agent at Taylor, were fully aware and knew that there was no market for said stoves, except as above set out, that plaintiffs were sustaining the expense herein specially claimed, and that said expense was made necessary by the delay in the delivery of the said goods.” On motion of the defendant the court struck from the complaint the allegations in regard to the special damages, and a verdict and judgment was rendered for the plaintiffs for $1. The only evidence was the testimony of the plaintiffs, showing the shipment, the distance from Atlanta to Taylor, 260 miles, with three junction points, and the usual time of travel, three days; that the stoves were protected by patents; that he bought them at the factory and the company did not sell to jobbers, etc., but only to the retail dealer; that witness conducted his business by loading five stoves on each wagon, on Monday morning, and sending his drivers (who were also salesmen) with them, who traveled from house to house and sold during the week; that said teams and drivers were idle during the delay, at the expense stated; that on September 5, 1906, he notified defendant’s agent at Taylor and [319] the agent at Slocomb “of the expense and loss sustained by him during the delay in delivery, and that said stoves could not be purchased in car load lots except from the factory at Atlanta.” The assignments of error are to the action of the court in striking the parts of the complaint, and giving, on the written request of the defendant, the charge: “If the jury believe the evidence in this case, they cannot find for the plaintiffs more than nominal damages.” The law is well settled that for delay in delivering goods received by a common carrier for transportation the damages recoverable are such “as are the natural and proximate results of” the carrier’s acts, and “such as reasonably might have been expected to be within the contemplation of the parties at the time of entering into the contract as the probable result of a breach; and where the carrier has notice of the fact that a delay in the delivery of the goods will result in an unusual loss or some special damage to the shipper there may be a recovery of the actual damages sustained where the notice was of such character that it will be presumed that the carrier contracted with reference thereto.”- — 3 Joyce on Damages, § 1956. This matter is ably and exhaustively discussed, and the numerous cases cited and analyzed, in the last edition of Hutchison on Carriers, where it is shown that the general rule of damages for delay is the difference between the market value of the goods at the time of delivery and at the time when by reasonable diligence they should have been delivered. In addition, the carrier may be liable “for such other and incidental damages as naturally and proximately flow from the delay”; but “it is the well-settled rule that special damages can be recovered from the carrier, when the transportation has been delayed, only where it is shown that the shipper informed the carrier, at [320] tbe time tbe contract was made, of tbe special circumstances requiring expedition in tbe shipment, * * * and :altbougb tbe carrier ;may have been notified of such special circumstances in time to have prevented a delay, if such notice was given after tbe contract of transportation bad been entered upon, it ¡would not operate to modify tbe contract, or subject tbe carrier to liability for special damages arising from a subsequent delay.” This is said to be a crucial fact, which must be both alleged and proved. — 3 Hutchinson on Carriers (3d Ed.) pp. 1617-1627, §§ 1366-1368, inclusive, with notes and cases cited. Referring to tbe complaint and tbe motion to strike, 'it does not allege that any notice was given to the defendant, at the time of making tbe contract, of tbe special circumstances on which tbe claim for special damages is based, but only that tbe defendant, or its agent, or its agent at Taylor, “were fully aware and knew that there was no market,” etc. In tbe first place, this falls far short of alleging such special notice as to raise tbe presumption that such damages were within tbe com' templation of tbe parties at tbe time of making tbe contract. In the second place, besides not alleging when the defendant or its agent bad such notice, even if we could presume that it meant at the time tbe contract was made, it is difficult to understand bow tbe fact that tbe agent at Taylor bad such notice could raise any presumption that tbe parties to a contract made b> another agent at Atlanta, 260 miles away, could have in contemplation the special damages claimed, Looking to tbe evidence as detailed in tbe bill of exceptions, it is not claimed that any notice of special circumstances was given at tbe time of making,' but it is stated only that on September the-5th, tbe day after tbe contract was entered upon, tbe notice was given to tbe agents at [321] Taylor ancl Slocomb of tbe expense and loss sustained by tbe plaintiffs. This, of course, according to tbe authorities and according to sound reason, could not change tbe terms of tbe contract or tbe obligations thereon. Consequently there was no error in tbe action of tbe court, and tbe judgment of tbe court is affirmed. Affirmed. Tyson, C. J., and Haralson and Denson, JJ., concur.