Southern Pacific Railroad v. A. J. Lyon & Co.

66 So. 209 | Miss. | 1914

Co ok, J.,

delivered the opinion of the court.

This case has been before this court upon an appeal from a decree overruling appellant’s demurrer to the bill of complaint, and the decisions of the court are reported in 99 Miss. 186, 54 So. 728, 34 L. R. A. (N. S.) 234, Ann. Cas. 19131), 800, and in 54 So. 784. This appeal is from a decree against appellant upon the merits.

It appears from the evidence that A. J. Lyon & Company were wholesale grocers and candy manufacturers, and as such bought a car load of fruit in California and delivered same to the Southern Pacific Railroad Company, appellant, to be transported over its and connecting lines to Meridian, Mississippi. These goods were bought for resale to the customers of the wholesaler and were goods for the holiday trade. The fruit had been sold in advance of shipment.

The goods were delivered to the carrier on November 2, 1906, and should have been delivered at the point of destination not later than November 25th. They were-not delivered until December 11th, too late for the holiday trade, and the parties to whom they were sold refused to accept same. The owner was, therefore, forced to resell the goods at the best price obtainable. The suit was for the difference between the price for which the goods had been sold before shipment and the price for which they were actually sold, together with the necessary expenses of reselling, and it was upon this basis the decree appealed from was rendered by the court.

It is the contention of appellant that the true measure of damages was the difference in market value between the time when the shipment should have arrived and the time it did actually arrive at Meridian. There is nothing-in the record to show the market value of the goods at either of these dates; the shipper proceeded entirely upon the theory that he was entitled to recover the difference in the price for which he had contracted to sell the goods and the price for which they were actually sold.

The evidence does not show that the carrier was advised that the goods had been sold for the holiday trade when it issued its bill of lading. Where goods are sold to arrive within a certain time at a certain price, but the carrier is not informed of this fact, and knows nothing of the importance to the shipper of a prompt delivery, the carrier can be held liable, only for the depreciation in the market value between the time when they should have been and the time when they are delivered.

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. Express Co. v. Jennings, 86 Miss. 329, 38 So. 374, 109 Am. St. Rep. 708; Elliott on Railroads, sec. 1730 et seq.; Hutchinson on Carriers, sec. 1367.

Appellant also contends that it is not liable for the negligence of its connecting lines; that it made a special contract with the shipper which limits its liability. The bill of lading contains this clause:

“To be carried upon the conditions expressed herein, to the company’s freight station at El Paso, and there delivered in like good order to the consignee or owner, or to order of said consignee or owner, or to such company or carrier (if the same are to be forwarded beyond said station), whose line may be considered a part of the route to the place of destination of said goods or packages, it being distinctly stipulated that responsibility of this company shall cease at the station where delivered to such person or carrier.”

It is said that the proof conclusively shows that the delay did not occur on appellant’s line, and therefore, under the contract, it is not liable. It is earnestly insisted that the act of Congress commonly called the Carmack amendment to the Hepburn Act, approved June 29, 1906, imposes no liability on the initial carrier for a delay not caused by it but caused by the connecting carrier, in a case where the initial carrier and the shipper have entered into a contract exempting the initial carrier from all liability after it has safely and promptly transported the goods and delivered same to the connecting carrier. We quote that part of the act of Congress applicable to this case, as follows:

‘ ‘ That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed.”

Appellant argues:

“That there is quite a difference in imposing liability on the initial carrier for loss, damage, or injury to the goods themselves, and for consequential damages caused by a delay in transportation.”

We think this view of the act of Congress is too narrow. In our opinion there is a damage or injury to the goods themselves by a delay in transportation, when it is shown that the delay in transportation has caused the goods to depreciate in value in the market of their destination.

For the failure to prove any depreciation in the market value of the goods, the cause is reversed and remanded.

Reversed and remanded.