96 Kan. 1 | Kan. | 1915
The Stevens-Scott Grain Company shipped a car of wheat by the Santa Fe railroad from Wichita to San Antonio. It was so badly injured in transit that the consignee refused to receive it, and it was sold by the carrier, bringing $293. The grain company brought an action against the railway company to recover compensation for its loss, and obtained a judgment for $789.17, which was found to be the market value of the wheat at San Antonio, in its original condition. The plaintiff appeals on the ground that it ought also to have been allowed interest on this amount from July 1, 1908, the time of the arrival of the wheat.
It has been repeatedly decided by this court that interest can not be allowed upon unliquidated damages for a tort which does not benefit the estate of the wrongdoer. (A. T. & S. F. Rld. Co. v. Ayers, 56 Kan. 176, 42 Pac. 722; Milling Co. v. Buoy, 71 Kan. 293, 80 Pac. 591.) The doctrine is general that in the case of damages for such wrongs as injuries to the person or reputation, inasmuch as the compensation to be awarded is necessarily a matter of general estimate, the amount not being subject to any exact ascertainment, interest is not allowed. (22 Cyc. 1500.) A distinction is sometimes made between allowances of interest and allowances of compensation for delay, measured by the legal rate of interest. It is said that in arriving at the amount to be allowed the j ury may take into account any delay that has occurred, although' they may not allow interest by that name. (Note, 1 Ann. Cas. 764; 22 Cyc. 1502.) That rule.may have a proper field of operation where the allowance can only be based on a more or less indefinite estimate, but. otherwise the distinction is a mere verbal one. Interest as such is a creation of the statute. (22 Cyc. 1475.) And to determine whether it is to be allowed in a particular case is a mere matter of statutory interpretation. The real question which is the subject of controversy is whether, in a given instance which does not fall within the statute, an aggrieved person is to be allowed compensation for delay, in the nature of interest. For convenience of statement such an allowance is ordinarily described as “interest,” as though it were strictly of that character, and the term will be so used in this discussion.
The plaintiff, however, maintains that the present case does not fall within the rule referred to, because the action is not founded upon tort, but upon the breach of the defendant’s contract, evidenced by the bill of lading, to carry the wheat to its destination and deliver it in the same condition in which it was received. While the relations between the parties are in a sense contractual, the action is essentially one to recover damages for the violation by the defendant of a duty laid upon it by the law, independent of its own consent. The petition charges that the wheat was injured by the negligence of the defendant, and by its misbehavior as a common .carrier. With respect to the matter now under consideration, the plaintiff’s claim is to be classified as one based upon the wrongful injury to or destruction of its property.
The plaintiff also contends that here the damages are not to be regarded as unliquidated, because they were fixed and definite in amount. This contention is based upon two theories.
A final contention of the plaintiff is that he should at least recover interest on the $293 which the railway company received from the sale of the wheat. As damages were allowed on the basis of the value of the wheat at San Antonio, the defendant had a right to deduct from the-salvage the freight charges, $177.50. The plaintiff was at all times entitled to the balance, or $115.50, and the defendant should pay interest on that amount for any period during which it was wrongfully withheld. The court found that the defendant had at once offered to pay the $115.50 in full settlement of its liability. This of course did not constitute a sufficient tender, by reason of the condition imposed. But the answer, filed July 6, 1911, included an unconditional offer to pay that amount. As the defendant appears to have retained all the salvage, without an offer to pay over any part of it, for a period of substantially three years, it should be charged with legal interest for that