63 So. 545 | Ala. | 1913
— Appellee sued appellant for delay in delivering a lot of empty bottles. Tbe complaint was in Code form. See form 15, p. 1197, vol. 2, Code. The complaint was as follows: -“W. W. Langley, Doing Business under the Name and Style of ‘Clanton Bottling Works,’ Plaintiff v. Southern Railway Company, a Body Corporate, Defendant. The plaintiff, W. W. Langley, doing business under the name and style of •“Clanton Bottling Works,’ claims of the defendant, the Southern Railway Company, a body corporate, doing-business in Chilton county, state of Alabama, as a common carrier of passengers and freight- for hire by means of a steam railroad, two hundred and fifty dollars, damages for the failure to deliver within a reasonable time certain goods, viz., twenty cases of empty bottles received by it as a common carrier, to be delivered to the plaintiff at Clanton, for a reward, which it failed to deliver within a reasonable time. J. Osmond Middleton, Attorney for Plaintiff.”
The case was tried on the general issue and resulted in verdict and judgment for $75, from which judgment the defendant common carrier prosecutes this appeal.
There are 50 assignments of error, but only 2 or 3 of these are insisted upon. However, the questions raised by the argument will determine most all of the questions raised by the assignments not insisted upon.
The record shows two basic errors, which impel a reversal. The first is a failure to prove the contract of shipment as alleged, of even an implied contract of shipment, and its breach. There whs no proof that the defendant (appellant here) ever received the goods as common carrier or ever agreed to ship or to deliver, as alleged. It is true that the plaintiff introduced in evidence what, on its face, purported to be a “shipping order” ; but- it was not signed by the defendant nor by any
This bill of lading was the contract of shipment on which the action was brought, and it should have been proven or its absence accounted for. The shipping order or receipt was not the bill of lading or contract of shipment and did not purport to be such; and, this being true, it could not, even if proven or authenticated (which was not done or attempted to be done), have supported this action, which was one in Code form on a bill of lading. As before indicated, the bill of lading sued on was never offered in evidence, and its absence was never accounted for; neither was there any attempt to prove its contents otherwise than by the introduction of the paper in question, which, as above stated, purported to be merely a shipping order or receipt and recited that there was a bill of lading or
We are. not to be understood to say that plaintiff was compelled to prove any particular kind of bill of lading but merely that he was' required to prove a contract of shipment to support-his action, which was one ex contractu. If the action had been in tort, for the breach of a duty, then the receipt for the goods for shipment, signed by the common carrier, and proof of failure to promptly ship or deliver, might be sufficient to show the breach of duty alleged and therefore to support the action; but the action was not one ex delicto.
. . The second error referred to was in the court’s allowing, over defendant’s objection, proof of special damages. There was no claim for special damages; the claim was for general damages. Profits which the plaintiff would have realized from the business of his bottling works had the shipment been promptly delivered, but which were lost on account of the delay complained of, if recoverable damages in this action, would be special and not general damages and so should have been specially alleged.
As to the measure of damages for delay in shipping or delivering by carriers, the rules have been frequently stated by this court. The case of Southern Ry. Co. v. Moody, 169 Ala. 292, 53 South. 1016, was very much like this, and we there said: “The decisions of this court are clear to the effect that the damage recoverable for the breach of a contract must be those which flow ¡directly and' naturally from the breach, and that any special damages claimed must be shown to have been within the contemplation of the parties at the time of making the contract. — Nichols v. Rasch, 138 Ala. 372, 35 South. 409; Alabama Chemical Co. v. Geiss, 143 Ala. 591, 39 South. 255; Southern Ry. Co. v. Coleman, 153
For the errors noted, the judgment is reversed, and the cause remanded.
Reversed and remanded.