176 S.E. 433 | W. Va. | 1934
This action in assumpsit was brought in the circuit court of Cabell County by Max Biederman, Inc., a corporation, against J. E. Henderson, doing business as Henderson Transport Company. The declaration embraces the common counts in assumpsit and one special count. The special count alleges that on the 6th day of May, 1932, defendant contracted with plaintiff to transport certain automobiles of the plaintiff from the city of Detroit to the plaintiff's place of business in the city of Huntington; that the undertaking of the defendant was that he would carefully and properly transport the automobiles, and deliver them in as good condition in all respects as they were when delivered to the defendant in the city of Detroit to be transported. The special count avers further that on the 19th of October, 1932, while the defendant was in the act of transporting a Dodge sedan and a Dodge coupe from Detroit to Huntington, he negligently drove them off the road and wrecked them, so that the plaintiff sustained a loss in the sum of $712.10, which the defendant refused to pay to the plaintiff. The defendant pleaded non-assumpsit, and at the trial the court directed a verdict for the plaintiff in the sum of $646.27, and on that verdict judgment was entered. To this judgment, the defendant prosecutes this writ of error.
The first proposition urged by plaintiff in error, defendant below, is that the plaintiff cannot recover either upon the theory of the common counts in assumpsit or upon the theory of its special count. This being a special contract, not fully executed, we think that the plaintiff's common counts in assumpsit are insufficient to admit of proof of the sort of a contract sued on. Whitaker-Glessner Company v. Suburban BrickCo.,
The next proposition urged by the plaintiff in error is that the defendant did not become an insurer of the delivery of the cars in good condition. While we fully agree with the assertion of the plaintiff in error to the effect that the proof of this contract and of its rigid terms is extremely meager, yet in the absence of any qualification or contradiction (and we find none in this record) we cannot take the position that the trial court was not justified in holding that that is exactly what the defendant did bind himself to become: an insurer of the safe delivery of these automobiles. That is certainly the effect of what the declaration alleges, and it is certainly the effect of the plaintiff's uncontradicted testimony. Upon the present showing, the plaintiff stands upon a hard bargain, but the defendant does not deny the terms of the contract. He simply takes the position that the fact that the automobiles were wrecked while he was transporting them, not through his fault, but through the fault of some third person who forced him off the road, does not constitute a breach of the unconditional contract to deliver safely. We think this position of the defendant is not tenable.
The next contention of the defendant is that the case was tried on the wrong theory as to the measure of damages. Plaintiff was permitted to recover additional transportation *377
charges caused by the accident, and in getting the cars repaired at Columbus, Ohio, the cost of the repairs and, on one of the cars, the difference between what was actually received by the plaintiff when the repaired automobile was sold and the retail list price which, presumably, the plaintiff would have received for the same automobile had it not been wrecked. Defendant (plaintiff in error) argues, we think correctly, that the market value of the cars immediately before the wreck and immediately after is the true basis for figuring the damages. As a usual thing, the measure of damages where personal property is damaged, is the fair market value of that property before the damage from which is subtracted the fair market value of the same property immediately after the damage.Broadie v. Randall,
A different rule might apply where the contract of carriage is entered into with knowledge on the part of the carrier of a specific re-sale of the property to be carried so that the contract of carriage might be said to contemplate that very transaction. But that is not this case.
For the foregoing reasons, the judgment will be reversed, the verdict set aside and the case remanded for a new trial.
*379Reversed and remanded.