St. Louis, Iron Mountain & Southern Railway Co. v. Dague

| Ark. | Apr 26, 1915

Hart, J.,

(.after stating the facts). (1) In the case of Southern Express Co. v. Owens, 146 Ala. 412" date_filed="1906-04-28" court="Ala." case_name="Southern Express Co. v. Owens">146 Ala. 412, 9 Am, & Eng. Ann. Cas. 1143, the 'Court held that in an action to recover for the loss of an article which had no market value the measure of damages should be the value of the article to the plaintiff, and, in .ascertaining this value, inquiry may be made into the constituent elements and the cost 'to the plaintiff of producing the article. In that case the court said:

‘ ‘ Ordinarily, where property has a market value that can he ¡shown, ¡such value is the criterion by which actual damages for its destruction or loss may be fixed. But it may he that property destroyed or lost has no market value. In such state of the case, while it may he true that no rule which will toe absolutely certain to do justice between the parties can be laid down, it 'does not follow from this, nor is it the law, that the plaintiff must toe turned out of 'Court with nominal damages merely. Where the article or thing is so unusual in its character that market value can not be predicated of it, its value, or plaintiff’s damages, must be ascertained in some other rational way, ¡and from such elements as ¡are attainable. ’ ’

■Several cases ¡are cited supporting that opinion, and other .oases announcing the same principle are cited in the case note. In the instant case the plaintiff had procured letters patent upon his plow and had constructed a model to toe used in selling the plow. He ¡shipped the model from Newport to Texarkana over the defendant’s line of railway and it was lost in transit. The court followed the principles of law ¡above announced in the admission of testimony and in its instructions to the jury.

It is insisted toy counsel for the defendant that the court erred in failing to g*rant it a new trial on account of newly discovered evidence. In support of its motion, it introduced the affidavits of its .agents to the effect that the loss of the machine was reported in December, 1913, and that 'an investigation was at once started to find the plow; that the property was described in the bill of lading as a model plow; that they were looking for something like a plow ¡and were not able to find it; that some time in August, 1914, the traveling freight claim adjuster for the defendant and one of its agents while looking over some unclaimed freight packages in the company’s warehouse in Little Bock, a station between Newport and Texarkana, located a box about thirty inches square and about twelve inches 'high, and upon looking into it found that it 'Contained 'the model plow which plaintiff had lost; and that before this time an examination of the unclaimed freight packages in stations between Newport and Texarkana had ¡been made and they had been unable to find the plow.

After the railroad company found the plow it asked •the court to set aside the judgment and require the plaintiff to accept the model and resubmit to the jury for its decision the question of damages sustained by the plaintiff for the detention of the plow.

(2) The court 'did not abuse its discretion in refusing this request of the defendant. It is true, according to the testimony introduced by the defendant, that the box containing the plow did not look like a plow and was not marked ‘ ‘model plow’ ’ on the box. According to the testimony of the plaintiff, however, when the property was delivered for shipment the box was plainly marked “model plow or soil pulverizer.” It was shipped from a point in the northern part of the State to a station in the southern part of the State and the whole route was over the defendant’s main line of road. Though the defendant made some effort to trace the plow after its loss was reported to it, still, under the circumstances, it can not be said that it used due diligence in doing so. The property was lost in the latter part of December and was not found until some time in the following August.

Again, it is insisted by counsel for defendant that the verdict is excessive; but we do not agree with them in that contention. The plaintiff testified that he was a mechanic himself and gave a detailed estimate of the materials that went into the model .and the reasonable cost of constructing same. These items amounted to $383.40. His testimony was in no manner contradicted and the jury properly found for him in that amount.

The judgment will be affirmed.