Silver v. Kent

60 Miss. 124

• Court: Mississippi Supreme Court
• Decided: October 15, 1882
• Status: Published

Opinion

Cooper, J.,

delivered the opinion of the court.

The declaration does not show that the defendants contracted to become responsible for any exceptional and special damages which the plaintiff would sustain by reason of the exceptional circumstances of his condition, nor that they knew of the existence of any facts which would increase the measure of his •damages beyond the ordinary standard. When damages of this character are claimed, it is necessary, at least, to set forth in the declaration the fact that the carrier had knowledge of the exceptional circumstances. Hadley v. Barendale, 9 Exch. 341; Vicksburg and Meridian R. Co. v. Ragsdale, 46 Miss. 460.

Mr. Mayne in his work on Damages, sects. 36-43, contends that mere knowledge of the facts by the carrier, is insufficient to enlarge*his liability, but that he must have assented to the contract on the terms that he should be thus bound, and cites in support of this view the following cases : British Columbia Saw Mill Co. v. Nettleship, L. R. 3 C. P. 499 ; Landsberger v. Telegraph Co., 32 Barb. 530; Herne v. Railway Co., L. R. 7 C. P. 583; L. R. 8. C. P. 136; Elbinger Action-Gesellschaft v. Armstrong, L. R. C. B. 473; Simpson v. North-Western R. Co., 1, Q. B. Div., 274. The plaintiff was not then authorized to introduce evidence of such special loss to enchance the amount of his recovery if the breach of duty of which he complained was not of a wilful, fraudulent, or oppressive character. The declaration, however, charges that the defendants “ wantonly and in gross neglect of their duties as common carriers, and in reckless disregard of the plaintiff’s rights, wilfully refused to deliver it,” and these allegations, if sustained by proof, authorized the plaintiff to ask a verdict not only for compensatory, but for exemplary, damages against the defendants.

Under this allegation a much broader field of investigation was opened to the jury. When actual or compensatory damages only are recoverable, the jury is limited to a consideration of any such as are proximate to the breach of duty. But when the injury is oppressively and wilfully inflicted, the party injured may recover for all actual, though remote, losses sustained. Bixby v. Dunlap, 56 N. H. 456 ; Emolien v. Meyers, 6 Hurl. & N. 54 ; Field on Dam., sect. 78.

The testimony for the plaintiff and that for the defendant is in direct conflict, but the jury were the judges of the credibility of the witnesses, and by their verdict have determined the facts-to be as testified by the witnesses for the plaintiff. From the statements of these witnesses it appears that the defendants made no effort to deliver the plaintiff’s freight as their boat went down the river ; that on the return trip of the boat the freight was landed at the plaintiff’s residence, but a demand was made for payment not only of the amount due for freight, but for the charges of the warehouseman at Warrenton, where the goods had been stored by the defendants after passing below plaintiff’s landing, on the down trip, and where they had remained until the return of the boat from New Orleans ; that the plaintiff refused to pay the charges for storing the goods, but tendered the amount due for freight, and remonstrated with the agent of the defendants, stating that he had been kept out of the use of his goods for eight days by their defaült ,- whereupon the agent replied that he would <£ keep him out of the use of the goods for eight days more,” and reloaded them on the boat and carried them away. These statements, if true (and they have been found to be true by the verdict of the jury), evidenced such a wilful disregard of the rights of the plaintiffs and an oppressive use of power by the defendants, as to subject them to the infliction of exemplary damages by the jury. Wherefore the judgment is affirmed.