Crutcher v. Choctaw, Oklahoma & Gulf Railroad

85 S.W. 770, 74 Ark. 358, 1905 Ark. LEXIS 448

• Court: Supreme Court of Arkansas
• Decided: February 25, 1905
• Status: Published

Opinion

McCuuuoch, J.,

(after stating the facts.) It is settled by the decisions of this-court that ordinarily the measure of damages recoverable against a common carrier resulting from delay in transportation of property is the difference between the value at the time and place the delivery should have been made and the value when delivery was in fact made, with interest, after deducting freight charges. But if there be special circumstances, known to both parties to the contract of shipment, surrounding the intended use of the property, which would augment the damages resulting from delay, and which both parties reasonably contemplated from a knowledge of those circumstances; the carrier will be liable therefor. St. Louis, I. M. & S. Railway Company v. Phelps, 46 Ark. 485; St. Louis, I. M. & S. Railway v. Mudford, 48 Ark. 502; Choctaw & M. Railway Company v. Walker, 71 Ark. 571. The same rule prevails as to other corporations and individuals. W. U. Telegraph Company v. Short, 53 Ark. 443; Murrell v. Pacific Express Company, 54 Ark. 22; Hooks Smelting Company v. Planters Compress Company, 72 Ark. 275; 3 Suth. Dam. p. 218; Hadley v. Baxendale, 9 Exch. 341.

It is contended by appellant1 that notice given to the carrier, after the making of the contract and shipment of the property, of the special circumstances is sufficient to charge the carrier with the increased damages. This is not correct. The notice must be given at the time or before the making of the contract. In Hooks Smelting Company v. Planters Compress Company, 72 Ark. supra, p. 289, the court said: “Eor it is well settled that, in order to make a party to a contract liable for special damages, he must have notice of the special circumstances at or before the making of the contract. He must, at the time he receives notice of the facts showing that upon a breach he will be subjected to special damages, be free to insist on such additional compensation as he may choose to demand. But if the price for the work, or for the part in which he is most interested, has been fixed, so that he must go ahead with the contract, then notice of the circumstances will have no effect to enlarge his liability.”

Though all the reasoning upon which the court reached its conclusion in the case above quoted is not applicable to the contract of a carrier for transportation of property, the principle is the same, and controls the question of increased liability in this case. V. & M. Railway Company v. Ragsdale, 46 Miss. 480; Ligon v. Mo. Pac. Railway Company, 3 Tex. App. Civ. Cas. 17; Gee v. Liverpool, 3 L. T. N. S. 322; Globe Refining Company v. Landa Oil Company, 190 U. S. 545.

It follows that, there being no testimony tending to show notice, at the time of the shipment to the defendant, of any special use of the property, and no depreciation in value or price being shown, the jury should have been instructed to return a verdict in favor of defendant as to actual damages. But the undisputed testimony clearly established a breach of the contract by the defendant, and the plaintiff was entitled to a judgment for nominal damages and costs of suit, and the court erred in directing a verdict for defendant and in rendering judgment against the plaintiff for costs. De Yampert v. Johnson, 54 Ark. 165; Ringlehaupt v. Young, 55 Ark. 128.

The cause will not be remanded for a new trial on account of the failure of the court to render judgment for nominal damages; but the judgment will be reversed, and judgment entered here in favor of appellant for all costs of the action.