Thompson v. American Railway Express Co.

103 S.E. 898, 180 N.C. 42, 1920 N.C. LEXIS 16

• Court: Supreme Court of North Carolina
• Decided: September 15, 1920
• Status: Published

Opinion

Hoke, J.

In this case the negligence of the defendant and consequent injury are admitted, or clearly established, and the single question presented is Avhether, on the record, there was sufficient evidence of knowledge or notice of “special circumstances” to permit that the jury should consider such circumstances in determining the amount of damages.

Speaking to the general principle applicable, in Furniture Co. v. Express Co., 148 N. C., at page 90, the Court said: “Where the goods shipped have a market value, and there is nothing to indicate the specific purpose for Avhich they were ordered, these damages are usually the difference in the market value of the goods at the time fixed for delivery and that when they were in fact delivered. We have so held in the ease of Davidson Development Co. v. R. R., 147 N. C., 503, and Lee v. R. R., 136 N. C., 533, is to the same effect. When, however, the goods are ordered for a special purpose, or for present use in a given way, and these facts are known to the carrier, he is responsible for the damages fairly attributable to the delay and in reference to the purpose or the use indicated. And it is not necessary always that those facts should bo mentioned in the negotiations, or in express terms made a part of the contract, but when they are known to the carrier under such circumstances, or they are of such character that the parties may be fairly supposed' to have them in contemplation in making the contract, such special facts become relevant in determining the question of damages. Moore on Carriers, p. 425; Hutchinson on Carriers, sec. 1367.”

Applying the principle in a former case of Neal v. Hardware Co., 122 N. C., 104, a recovery of special damages was sustained for negligent delay in the failure to supply and ship promptly flues for curing tobacco, ordered of a manufacturing company through a local agent, the Court holding, among other pertinent rulings, that the “Manufacturer who makes, and the agent who sells, flues for curing tobacco, in localities where tobacco is cultivated, must be presumed to know the proper season for cutting and curing tobacco, and if it is not cured in apt time, serious loss will result.”

These cases are in full support of his Honor’s charge, submitting the evidence of special circumstances and the notice thereof to the consideration of the jury, it appearing that these flues, used only for curing tobacco, were delivered to defendant company for shipment in a locality where tobacco was generally grown, and in the midst of the curing season, and, as said by Chief Justice Fair cloth in the Neal case: “In localities where tobacco is cultivated, it must be common knowledge that, if it is not cut and cured in apt time, serious loss is the necessary consequence.” And Rawls v. R. R., 173 N. C., 6; Peanut Co. v. R. R., 155 N. C., 148; Lumber Co. v. R. R., 151 N. C., 23; Tillinghast v. R. R., 143 N. C., 268, are all decisions in approval of the general principle.

We find no error in the record, and the judgment for plaintiff is affirmed.

No error.