143 Ark. 513 | Ark. | 1920
(after stating the facts). The court erred in instructing the jury that it might find special damages to the plaintiff for the delay in the delivery of the trunk to him by the express company after he gave the latter notice that he would suffer special loss unless his trunk was delivered to him. The trunk containing the watchmaking tools of the plaintiff was delivered to the express company for shipment to the plaintiff by the latter’s brother. It is admitted that he did not give the express company any notice that the plaintiff would suffer special damages by reason of any delay in the carriage and delivery of the trunk.
Counsel for the plaintiff, however, bases the plaintiff’s right to recover special damages upon the fact that he went to the office of the express company in Kansas City about two weeks after the trunk had been shipped and then gave it notice that he would suffer special damages if the trunk was not delivered to him. He says that he notified the company that the trunk contained his watchmaking tools and that they were necessary for him to have in order that he might hold the position in which he was then employed. This was not sufficient to entitle him to special damages. Notice given, after the carrier has accepted goods for transportation, of the circumstances rendering prompt transportation necessary is not sufficient to fasten upon the carrier liability for special damages growing out of such circumstances on account of delay occurring during transportation. The reason for the rule rests upon the ground that the carrier, if notified, may have an opportunity by special precaution to protect itself from loss. C., R. I. & P. Ry. Co. v. King, 104 Ark. 215. After the goods have arrived at the place of destination and are in the custody and control of the carrier at that place for delivery to the shipper or consignee, then the reason of the above rule would cease, if notice of the special circumstances is given to the carrier after the arrival of the goods at the place of destination and thereafter it wrongfully delays making the delivery.
This rule is not applicable to the facts presented by the record in the case at bar. It was not shown by the plaintiff that his trunk was at its destination at the time lie gave the notice to the express company. On the contrary it was then lost in transit, and it was too late for the common carrier to taire any precautions to protect itself from loss.
• In Chicago, Rock Island & Pacific Ry. Co. v. Thomas, 118 Ark. 406, where the precise question was involved, the court held that the information of circumstances whereby special damages might arise from a delay in the delivery of freight given, after the contract was made and during the period of transportation, was not sufficient to charge the carrier with liability for such special damages.
It follows that the court erred in submitting this question to the jury.
The trunk and its contents were lost in transportation and were not received at the point of destination until nearly nine months after shipment. The trunk and its contents, including the watchmaking tools, were then badly damaged. The plaintiff, however, admits that he received them at that late date in their damaged condition. His measure of damages then would be their depreciated value in their damaged condition when received by him.
It follows that the judgment must be reversed and the cause will be remanded for a new trial.