68 So. 720 | Ala. Ct. App. | 1915
The counts of the complaint upon which the case was tried were in Code form, and claimed of the appellant railroad company as a common carrier damages, respectively, for “a failure to deliver” a part of the goods of a certain shipment, for “a failure to deliver within a reasonable time” another part of the goods so shipped, and for “injury” to that part of the shipment that was delivered to plaintiff. The only plea was the general issue.
The court, consequently, did not err in refusing the charge mentioned.
We are of opinion that the verdict was excessive. Adding together the $75 which plaintiff testified was the diminution in. value of the articles delivered, and $5, which plaintiff testified was the value of the articles lost, we have $80„ to which if we add $35, for the value of the use of the articles, which is $10 per month for the 31/2 months that defendant delayed the delivery, that is, from July 4th to October 18, 1912, we have a grand total of $115, which is $70 less than the damages 'assessed by the jury. No other elements of damages were proved other than as stated, unless we add interest on the value of the shipment during the time of delay by defendant in delivering, but certainly plaintiff is not entitled to both the value of the use of the property and interest on its value; and, even if he were, that interest, which would amount to not exceeding $3, would not be sufficient to cover the deficiency between the damages assessed by the jury and the damages proved. Plaintiff also claimed damages for the inconvenience and expense to which he was put by the delay, but as he offered no data on this subject, he was entitled to only nominal damages, if any at all, for his inconvenience and expense.—6 Cyc. 452; Southern Ry. Co. v. Webb, 143 Ala. 304, 39 South. 262, 111 Am. St. Rep. 45, 5 Ann. Cas. 97.
But under certain circumstances damages may be recovered as within the contemplation of the parties, though they are in excess of those which would ordinarily be considered the natural
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. Such has been held to be the ordinary damages where the goods consist of machinery ordered for use and not for resale, and in cases where a passenger sues the carrier for delay in delivering his baggage. —6 Cyc. 449; 5 Ruling Case Law, 223, § 833; Illinois Cent. R. Co. v. Brothers, supra, 67 South. 628, and authorities supra.
The defendant does not question but what the same rule obtains here, where the shipment consisted of household goods and wearing apparel, of which the carrier had notice and of the purposes for which plaintiff desired their prompt delivery —the use of himself and family for domestic and personal purposes at Warrior, Ala., to which place plaintiff and family had moved from Prentiss, Miss., where the goods were shipped. Consequently we have treated the reasonable value of their use during the time of the delay that was occasioned by defendant as recoverable damages. —Illinois Cent. R. Co. v. Brothers, supra; authorities supra.
In ignoring these principles, charges 14 and. 17, refused to defendant, were properly refused, as they were calculated, in the form as requested and under the facts of this case, to mislead and confuse the jury as to the burden of proof.
For the error of the court in refusing to set aside the verdict because excessive, and in refusing the charge mentioned, the judgment is reversed and the cause remanded.
Reversed and remanded.