Illinois Cent. R. v. McSwain

66 So. 786, 108 Miss. 443

• Court: Mississippi Supreme Court
• Decided: October 15, 1914
• Status: Published

Opinions

Reed, J.,

delivered the opinion of the court.

Appellee, a photographer, shipped over the appellant’s railroad a photographic outfit, including a tent, from Sardis to Senatobia, so that he might have it to use at a fair to be held a few days later in the latter town. The articles were delayed, and did not reach appellee in time to be used in his trade during the fair. He brought suit against appellant, and claimed in his bill of particulars for loss of time by him and his assistant, for the expense of a trip to Memphis to buy a'new outfit, and for the purchase price of such outfit. On the trial appellee abandoned his claim to all items of damages, except the loss of time. In his account he also claimed twenty-five per cent, damages provided by section 4070 of the Code of 1906, and chapter 196 of the Acts of 1908, but the court gave a peremptory instruction against this claim. The court granted to appellee an instruction which authorized the jury to bring in a verdict for lost time, and refused an instruction asked for by appellant telling the jury that they could allow nothing on account of lost time.

The sole question presented in this case is whether the appellant had notice of the special circumstances attending the shipment of the goods from which special damages might arise from its failure to deliver. We quote from the evidence in the case showing what information was given to appellant’s agent at Sardis at the time of the shipment. The appellee testified as follows:

“Along about the 1st of October I wanted to move up to Senatohia to get there before the fair, and I knew the strike was on, and I had some kind of presentiment — I didn’t know whether the things would get there, and didn’t know whether to ship them or whether it would be best to haul them there by wagon. I came out and saw the agent, Mr. Coggins, and he told me it was perfectly safe to ship there, as there was no strike between Senatobia and Sardis; so I brought my stuff out and shipped it that way. ’ ’

Mr. Coggins, the agent at Sardis, testified as follows:

‘ ‘ Q. Mr. Coggins, at the time Mr. McSwain made this shipment originally from Sardis, do you remember the conversation he had with you in which he stated his reasons for wanting the shipment — asking you if there would be any trouble on account of the strike between here and Senatohia? A. "We had a conversation of that nature. Q. And you told him it would not affect it between the points of Sardis and Senatohia? A. I think I did; that’s my recollection.”

We do not see in this testimony any notice to appellant of the special circumstances; that is, that the shipment was a photographic outfit and the necessity of its reaching Senatobia in time for use in appellee’s photographic business during the fair. It cannot be said from the evidence that such special circumstances, which might entitle appellee to special damages, were known to appellant, the party sought to be made liable, at the time the contract of shipment was made, so as to charge appellant with the special damages claimed. Express Co. v. Jennings, 86 Miss. 329, 38 So. 374; Express Co. v. Burke & McGuire, 104 Miss. 275, 61 So. 312; R. R. Co. v. McKenna, 104 Miss. 843, 61 So. 823.

Beversed and remanded.