New Orleans & N. E. R. v. J. H. Miner Saw Mfg. Co.

Sykes, J., delivered the opinion of the court. This suit originated in the justice of the peace court, ■ and was duly appealed to the circuit court, where it was tried upon the following agreed statement of facts: “On July 11, 1913, J. H. Miner Saw Manufacturing Company, plaintiff, shipped from Lumberton, Miss., a consignment of saws to James Carlin, Pagosa Springs, Colo., a distance of two thousand one hundred three miles. This shipment arrived at destination on August 21, 1913, and consignee was notified on the same day, being present when the shipment arrived. Oh September 3; 1913, plaintiff filed with the defendant a claim of one hundred ninety-one dollars and seventy-five cents, same being the invoice value of this shipment. Copy of the invoice is filed herewith as Exhibit A. On September 12, 1913, notice was given by the Denver & Eio Grande Eailroad Company, delivering carrier, to the J. H. Miner Saw Manufacturing Company, consignor, that said shipment remained on hand at destination, having been refused by the consignee. Said notice requested immediate orders for disposition. On the back of this notice an indorsement appears over the signature of the J. H. Miner Saw Manufacturing Company to the effect that claim had been filed for this shipment and that disposition would not be furnished. The original notice and indorsement on the back thereof is hereto attached as Exhibit B. On November 26, 1913, the defendant requested plaintiff to furnish immediate disposal instructions on this shipment; said letter beingattached hereto as Exhibit' C. On February 3, 1914, original consignee, James Carlin, offered the Denver & Eio Grande Eailroad Company, delivering carrier, one hundred fifteen dollars for the shipment in question. On February 6, 1914, this offer was submitted to the [654] plaintiff, and on February 12, 1914, plaintiff instructed the said delivering carrier to complete the sale and turn over the shipment to said James Carlin. On March 19, 1914, said delivering carrier notified plaintiff that this sale had been made and asked for disposition of the proceeds. The above correspondence is attached heréto as Exhibits E, F, Q-, and H hereto. On June 17, 1914, draft was paid by said delivering carrier to the J. H. Miner Saw Manufacturing Company for eighty-six dollars and twenty-five cents, the amount remaining after deducting freight and storage charges, twenty-eight dollars and seventy-five cents. The freight charges on this shipment, had same been returned to the consignor, would have been twenty-two dollars and seventy cents. ‘At the instance of the consignee the above order was duplicated and shipped by express, arriving at destination at about the same time the shipment in controversy arrived. It' is further agreed that the shipment in controversy met with unreasonable delay; that same was not damaged in transit; that there was no change of fluctuation in the market value of the commodities comprising this shipment between the time shipment would have reached destination if handled without unreasonable delay and the time it actually arrived at destination. “Supplemental Statement of Facts. “It is further agreed in this case that four or five days after the shipment was delivered to the defendant, and after instructions had been given by the plaintiff to defendant’s agent that same was a special shipment and a request made for tracing the same through to destination, the president of the plaintiff company discovered the shipment in the depot of the defendant at Lumbérton, and that upon demand of defendant’s agent as to cause of delay was informed by such agent that shipment had left his station and had been unloaded at Poplarville, another station of defendant, and from [655] ■there returned to Lumberton for reshipment; that the .president of the said plaintiff company then demanded that the shipment he sent forward without further • delay, stating that same was a special shipment, and 'that it must be delivered to the consignee within thirty •days from the date of the original shipment, otherwise fit would arrive too late; and that he again demanded .the said shipment be traced through to its destination which the agent of the defendant then and there agreed ■ and promised to do; that plaintiff made frequent inquiries of the agent of the defendant as to cause of the delay in delivery, hut was unable to ascertain said cause, and then was compelled to fill the order by express thirty days or more after the said shipment was -delivered to the defendant for transportation to the consignee at the destination marked thereon, and on the hill of lading issued by the defendant; that all of this shipment, except the big saw, invoice value one hundred fifteen dollars, was made special for the consignee; and that plaintiff did not carry the same goods regularly in stock.” The net amount sued for in the justice of the peace court was one hundred five dollars and fifty cents, or the value of the shipment of saws, less eighty-six dollars and twenty-five cents, the draft already paid appellee. The case was tried before the circuit judge "by agreement and judgment was rendered in favor of the appellee for the amount sued for, - from which judgment this appeal is prosecuted. The bill of lading is made an exhibit to the agreed statement of facts, .and shows that the shipment was “consigned to order oí J. H. Miner Saw "Works — notify James Carlin.” The damages recovered by the appellee in the court below in this case are special, and not general, damagss. It is the contention of the appellee that the agent of the appellant company, some days after the bill of lading was signed, and while the goods were still in the ■possession of the initial carrier, and while they were [656] in the warehouse of said carrier at the point of origin, was notified that this was a special shipment of goods, and would he valueless unless delivered within thirty days. The agreed statement of facts, however, shows that at the time the contract of affreightment was made-the agent of the carrier was not informed by the shipper of these facts. The question thus sharply presented to-the court • is this: Whether or not the carrier, not being informed o-f the special damages likely to flow from a breach of the contract of affreightment at the-time the contract was made, can he made liable for these special damages by being informed at a subsequent date of them, while the goods are still in the possession of the carrier at the' point of origin. This court has held, in a number of cases, that special damages are only recoverable when the carrier is informed at the-time the contract is made of the special circumstances-from which damages will flow. The court, in the case-of Railroad Company v. Lyon, 107 Miss. 777, 66 So. 209, Ann. Cas. 1917D, 171, used the following language :• ‘ ‘ Special damages can be -recovered from the carrier for delayed transportation only where it is shown that the shipper informed the carrier, at the time the contract was made, of the special circumstances requiring” prompt transportation and delivery. This is the rule; in this state, and seems to be universal.” To the same effect are the cases of Railroad Company v. Jacobson, 112 Miss. 158, 72 So. 889; Railroad Company v. McKenna, 104 Miss. 843, 61 So. 823; Railroad Company v. Allen, 106 Miss. 275, 63 So. 572. Practically the same contention made by the appellee in this case was made in the case of the American Express Company v. Jennings, 86 Miss. 329, 38 So. 374, 109 Am. St. Rep. 708. In responding to this contention in that case the court said: “It is not enough' to give notice to the carrier after the-contract is made, and the shipment has started in its transportation, because the liability of a carrier cannot [657] be increased by tbe subsequent knowledge of facts that did not exist in the contemplation of the parties at the time the engagement was entered into. It then became an effort upon the part of one of the contracting parties to inject a stipulation into the contract after it was entered into, that increases the liability of the other, that was not mutually considered when the engagement was made.” A careful examination of the above-cited authorities shows that, in order for special damages of this character to be recovered, the carrier must be informed at the time the contract of shipment is made of the special circumstances from which these damages will flow. The statement of facts shows that the s.aws were not damaged in transit, and that there was no change or fluctuation in the market value of the commodities comprising this shipment between the time the shipment would have reached its destination if handled without unreasonable delay and the time it actually arrived at destination. Since nc special damages can be recovered in this case, the only damages recoverable are those which were within the contemplation of the parties at the time the contract was made. The articles themselves were not damaged; there was no fluctuation of the market value of these articles; therefore, we conclude that the appellee in this case would be limited to a recovery of the rental value of the shipment for the time of the unreasonable delay. American Express Company v. Jennings, 86 Miss. 329, 38 So. 374, 109 Am. St. Rep. 708; Brothers v. I. C. Railroad Company (Ala. App.) 77 So. 423; Railroad Company v. Christmas, 89 Miss. 686, 42 So. 169. Reversed and remanded..