Alabama & Vicksburg Railroad v. McKenna, 61 So. 823

Alabama & Vicksburg Railroad v. McKenna

61 So. 823 | Miss. | 1913

Reed, J.,

delivered the opinion of the court.

Mrs. McKenna brought suit against- the Alabama & Vicksburg Railway Company to recover damages resulting from the failure of the company to deliver to her within a reasonable time certain household goods and effects, shipped from Bolton to Vicksburg, claiming that by reason of such failure she contracted a cold, from which she suffered pain. When all the testimony for the plaintiff had been introduced, the railway company moved the court to exclude the evidence and for a peremptory charge for the jury to find for. defendant. The court overruled this motion. The court also refused to grant a peremptory instruction for the defendant when both sides had rested. The jury found for Mrs. McKenna, and awarded her the sum of six hundred dollars as damages.

On December 26, 1910, Mrs. McKenna tendered to the railway company at Bolton certain household goods and effects for- shipment to herself at Vicksburg. She requested Mr. Knight, the shipping clerk and assistant station agent, to ship these goods to her C. O. D. Vicksburg, and told Mm that she would need them right away, as she had no place to stay in Vicksburg, and had only sufficient money to pay her passage. ' Mr. Knight declined to do so, and insisted upon the prepayment of the freight. She then told him that she would forward the money the next day from Vicksburg, and he agreed upon receipt of it to ship the goods. Afterwards, however, he reconsidered the matter, and without again communicating relative thereto with her he shipped the goods C. O. D. to her at Vicksburg, or rather he shipped a portion thereof; the other portions having been from some cause, *849not apparent in this record, addressed to a Mrs. Gibson, and Knight seems not to have been aware that they belonged to Mrs. McKenna. The next day, December 27th,. Mrs. McKenna forwarded an express money order for four dollars and twenty-five cents, the amount which she states was necessary to prepay the freight on the goods, in an envelope addressed to “F. P. Bolton, Depot Agent, Bolton, Miss.” This was at Christmas time, and Mr. Bolton states that he was absent from his office for several days, and that upon his return, which he says was. the last of the month, either the 27th, 28th or 29th, he received the money order, deducted therefrom a sufficient amount to pay the freight charges on the goods still in the Bolton depot addressed to Mrs. Gibson, and remitted the remainder to Mrs. McKenna at Vicksburg. This remittance was made on January 6th, and was received by Mrs. McKenna the next day.

A notice was mailed Mrs. McKenna by the agent of the railway company at Vicksburg, on December 28,1910, that her household goods had arrived at Vicksburg, and stating the amount of charges for freight thereon. She admits receiving this notice. She went to the freight depot at Vicksburg on December 31st, and found part of the goods there. We understand that the goods, marked in her name, and shipped by Mr. Knight C. 0. D., was the part found. She asked that such goods be-delivered to her, and stated that she had remitted the amount of freight to the agent at Bolton; but the agent at Vicksburg declined so to do, unless the C. O. D. charges were paid, and told her that the company would refund her the money which she had remitted. He also' expressed a willingness to deliver her the goods if she would get some responsible person known to the company to guarantee the payment of the freight. Some effort was made by the Vicksburg agent to communicate with the Bolton agent, but this was without effect. The result was that there was a delay of something over a week *850in the delivery of these goods to Mrs. McKenna. She obtained them about January 9th, when she paid the charges with the money returned to her by the Bolton agent.

She contends that, because of her not receiving the household goods and effects earlier, she became ill and remained so for about a month. The whole evidence upon this, however, is embraced in the following questions and answers: “Q. Now, Mrs. McKenna, just tell the jury what kind of suffering you underwent — what was your condition? A. I was nearly dead with a cold. I couldn’t talk, and could hardly get my breath; all choked up with a cold and hay fever. Q. How long did you remain ill, if you were, from this exposure? A. For nearly a month.”

It does not appear from any of the testimony that there was any intention by any of the agents of the railway company to delay Mrs. McKenna in the receipt of her goods. On the other hand, Mr. Knight, the clerk at Bolton, forwarded the goods promptly, in order that she might not be delayed in their receipt, and the agent .at Vicksburg offered to turn the goods over to her if she would get some responsible person to state that the freight thereon would be paid. The record does not disclose that she made any effort to get such guaranty, or, to obtain money to pay the charges at Vicksburg. We note from the record that she had a home in Vicksburg, to which she went when she reached that city, and where her husband was living.

Mrs. McKenna is claiming special damages in this case. In an ordinary case, where there is no special circumstance or special notice, the carrier is only liable for the value of the goods lost in transit or while in its possession, or the amount of the damage by breakage or other injury to such goods. It appears in the record in this case that a claim was made by Mrs. McKenna for loss and damage sustained in the shipment to her house*851hold goods, and that such claim was settled .in fnll by-payment of two dollars and seventy cents. A copy of a voucher showing this is made an exhibit to the testimony. So her claim for damage to her property has been paid her by the railway company in full. The claim presented by her in this suit is for special damages to her person.

Under the law, as well settled in this state, special circumstances from which special damages might arise must be known to the party sought to be made liable at the time the contract between the parties was made. In Sutherland on Damages (3d Ed.) 164, we find the following statement of the law: “It is essential, in order to bring within the contemplation of the parties damages different from and larger in amount than those which usually ensue, that the special circumstances out of which they naturally proceed shall have been known to the party sought to be made liable in such manner, at the time of contracting, as to make it manifest to him that, if compensation in case of a breach on his part is accorded for actual loss, it must be for a loss resulting from that special state of things which those circumstances portended.”

We do not believe that a sufficient notice of special circumstances was given to the railway company at the time of the shipment to charge it with the special damages claimed in this case. Mrs. McKenna, in her testimony, stated that she asked Mr. Knight to ship her goods right away, that she needed them at once, and had no place to stay, and had only money enough to go to Vicksburg. Another witness stated that he heard Mrs. McKenna tell Mr. Knight that she needed her things and to ship them as early as possible. Mr. Knight stated that she told him that the shipment contained clothing of her children and herself, and that she wanted them at Vicksburg.

*852We cannot see that this testimony is sufficient to support a recovery of special damages such as in this case. The statements of Mrs. McKenna gave the company no further notice than would be implied in every ordinary shipment of this kind. She wanted the goods delivered at Vicksburg promptly, for she needed them. This would be so in practically all cases where household goods were shipped. We do not see that she should be entitled, under the circumstances as presented to us in this case, to any other damages than those which may be considered as arising naturally, on in the usual course of such transactions, from the breach of the contract. This would preclude her from a recovery of the special damages she claims.

After a careful review of all the facts in this case, we conclude that the appellant is not liable, and that the trial court erred in not giving the peremptory instruction for defendant.

Reversed, and judgment here for appellant.

Reversed.