Chappell v. Western Railway

70 S.E. 208, 8 Ga. App. 787, 1911 Ga. App. LEXIS 149
CourtCourt of Appeals of Georgia
DecidedFebruary 15, 1911
Docket2624
StatusPublished
Cited by16 cases

This text of 70 S.E. 208 (Chappell v. Western Railway) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chappell v. Western Railway, 70 S.E. 208, 8 Ga. App. 787, 1911 Ga. App. LEXIS 149 (Ga. Ct. App. 1911).

Opinion

Powell, J.

The petition set up two distinct causes of action. Both proceeded ex contractu, however, and were, therefore, capable of being joined in the same suit, under the practice in this State. It will be necessary to discuss them both. Chappell was the owner and propriétor of a theatrical company .traveling and showing under the name of “ A Rabbit Foot Company,” engaged in giving performances at one-night stands” throughout the country. It had its own private car, in which the performers were transported. Having advertised a number of performances at different cities along the defendant’s line of railway, Chappell made a contract with the railroad company whereby the latter undertook to transport this private car upon a designated schedule. One of the provisions is that the [789]*789ear was to leave Tuskegee on September 9, at 6.50 a. m., and arrive at West Point at 1.30 p. m., and train number 2 was designated as the train which would carry the car. Train number 2 failed to pick up the car, and it was brought into West Point by another train, which arrived too late for the giving of the performance advertised there. The first cause of action stated in the petition is for the breach of the contract in -the respect named. It is alleged that if the performance could have been given, $300 net would reasonably have been earned.

In addition to the transportation of this private car, the railroad company also contracted to furnish a baggage car for the accommodation of the properties and paraphernalia belonging to the theatrical company. As a part of the equipment of this car, a certain kerosene lamp was furnished. It was alleged that this lamp “had become clogged and stopped up at the place where the air was admitted to the flame; the oil in the lamp had been mixed with water,1 causing the oil to become contaminated and more • likely inflammable; there was a crack in the bowl of said lamp, letting the oil escape as a gas into the air surrounding the lamp,” from which an explosion of the lamp occurred, which set fire to the properties in the car while it was detained at West Point on the night after its arrival there, so that the properties in the car, to the value of some $2,000, were destroyed. By reason of the destruction of these properties the company was detained at West Point for -14 days, until other properties could be obtained, and could not give its advertised performances during that period of time. Chappell had to pay the expenses of his performers and their salaries, according to the contract he had made with them, and also lost the proceeds that he would have derived from giving the performances. He set out these amounts and sued for them also. To the petition, demurrers were filed, both general and special. The court passed an order sustaining the .demurrers, bo& general and special. Plaintiff brings error. The rule of decision in cases where the trial judge has sustained both general and special demurrers is for this court first to see if a cause of action is set forth; and if it is found that the court erred in overruling the general demurrer, the judgment will be reversed, leaving the matters in respect to the special demurrers open for further action in the trial court. Of course, the primary effect of sustaining a special demurrer is not the dismissal [790]*790of the petition, but a requirement that the plaintiff should amend and make his allegations more specific, or should strike such matters' as are objectionable.

So far as the cause of action growing out of the failure of the railroad company to transport the private car from Tuskegee to West Point on time is concerned, it is conceded that this constituted a breach of contract, but it is insisted that no such damages as are alleged are recoverable; that the damages alleged are too remote and speculative in their character. The judge below doubtless placed his ruling largely upon the case of Georgia Railroad v. Hayden, 71 Ga. 518 (51 Am. E. 274). In that case the plaintiff, a theatrical manager, took passage for himself and troupe by way of the defendant’s train, at Madison, Ga., for Augusta, which point, according to schedule time, should have been reached in such time as to have enabled the plaintiff and his company to reach Columbia, S. 0., in time to keep their engagement for a performance there for which he liad sold tickets amounting to $288. The Georgia Eailroad train failed to make the connection, and the plaintiff sued to recover the $288. The court held in that case that as it did not appear that at the time the railroad company made the contract of carriage it knew of the nature of the plaintiff’s journey, or of this independent transaction at Columbia, S. C., from which the damages immediately flowed, the plaintiff could not recover. The gist of the decision is contained in the following language with which the second headnote concludes: “Damages resulting from the particular character of the business of the traveler, unknown to the railroad company contracting with him, are too remote to be recovered.” By a like distinction this case is also differenced from the Alkahest Lyceum Co. v. Curry, 6 Ga. App. 625 (65 S. E. 580). In this case, however, the railroad company knew' at the time it made the contract what the particular character of the traveler’s business was, and entered into the contract knowing that the plaintiff was making the contract with a view of fulfilling engagements to give performances from day to day. It is only to indulge the most natural inference to say that the company knew full well that if it did not transport the plaintiff’s car to the places of engagement without unreasonable delay, the plaintiff would lose such sums as he would have been able to earn by giving these respective performances; hence, taking the allegations of the petition [791]*791as true, the railroad company will not be held liable for any uncontemplated damage, if it is held liable on the cause of action here asserted, because of the breaching of the contract through the unreasonable delay. We see no real merit in the point that the damages are too speculative in character to admit of their submission to the jury for estimate and assessment. While a number of contingencies may enter into the absolute calculation of what the earnings of a theatrical troupe for any particular performance may be, still it is a matter which a jury can estimate with very fair accuracy from the data which can ordinarily be supplied. Juries are frequently called upon to estimate the value of the earning capacity of an individual. Somewhat similar contingencies enter into the calculation where the earning capacity of a company is concerned. We think that if the jury is informed as to what the receipts of this company in other towns of similar size were, what other companies of similar character have earned in the same town at similar performances, what the state of the weather was, what the other surrounding conditions were, they can estimate fairly what the earnings from this particular performance would have been. This falls within the realm of estimation and of reasonable calculation, rather than within the realm of speculation. Juries are frequently called upon to solve problems much more difficult and involving many more contingencies. • Of course, the measure of damage is not necessarily the gross receipts which -would have been taken in from the performance. The plaintiff might have been saved some expense by reason of the performance’s not being given. If so, the saving must be deducted from the loss, and the plaintiff should be allowed to recover only the net loss sustained.

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Bluebook (online)
70 S.E. 208, 8 Ga. App. 787, 1911 Ga. App. LEXIS 149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chappell-v-western-railway-gactapp-1911.