American Express Co. v. Jennings

• Decision Date: 15 May 1905
• Court: Mississippi Supreme Court
• Parties: AMERICAN EXPRESS COMPANY v. RICHARD J. JENNINGS

38 So. 374

86 Miss. 329

AMERICAN EXPRESS COMPANY v. RICHARD J. JENNINGS

Supreme Court of Mississippi

May 15, 1905

FROM the circuit court of, second district, Coahoma county, HON SAMUEL C. COOK, Judge.

Jennings the appellee, was plaintiff, and the express company, the appellant, defendant in the court below. From a judgment in plaintiff's favor the defendant appealed to the supreme court. The facts are stated in the opinion of the court.

The instructions referred to in the opinion are as follows:

Instructions given for plaintiff:

"No 1. The court instructs the jury to find for the plaintiff the value of the property consigned to him that belonged to him and was never delivered."

"No 3. The court instructs the jury, for the plaintiff, that if at the time--to wit, the 16th day of December, 1903--the defendant received from the Southern Express Company certain machinery to be transported by it and delivered to plaintiff at Scobey, Miss., the defendant had notice that the plaintiff's gin and mill were shut down, and would remain idle until such goods were delivered to plaintiff, and that defendant's agent at Scobey agreed with plaintiff that the property was in Memphis, and that defendant would bring it down and deliver it that night or the next morning, and that thereafter defendant, through its agent at Scobey promised plaintiff that it would be there on the next train, and by successive promises kept plaintiff waiting for the machinery until the early part of January, 1904, and then notified plaintiff that they had lost the machinery, and would not deliver it at all, and plaintiff quickly ordered other machinery in its place, which was promptly sent and promptly received by plaintiff on the 7th day of January, 1904, and that the first machinery was lost by defendant and never delivered to plaintiff, then they will find for plaintiff, not only the value of the machinery lost that belonged to him, but all damages that have accrued to him on account of the delay and loss of the machinery; and, in estimating plaintiff's damages, they should be governed by the fair rental value of the machinery that was shut down, and, in determining the fair rental value, they may take into consideration the season of the year, that the machinery was located in a cotton country, and all the facts and circumstances surrounding the parties, and may also take into consideration any time lost by plaintiff in going to the depot or office of the defendant and making inquiry about the machinery lost."

Instruction No. 4 refused for defendant:

"No. 4. The court instructs the jury that plaintiff cannot recover for the reasonable value of his gin, or any other damages, unless they believe, from a preponderance of the evidence, that the defendant had notice of the importance of the shipment and of its prompt delivery at some time before the shipment had been lost or had been misplaced or miscarried."

Reversed and remanded.

D. A. Scott, for appellant.

It is conceded that at the time the contract of affreightment was entered into no notice or information of any character whatsoever was given as to the importance of the shipment in question or as to the importance of its prompt and punctual delivery.

It is well settled that where the carrier has no notice at the time the contract of affreightment is entered into of the importance of prompt and speedy delivery, no special damages can be recovered for the failure to promptly deliver. 3 Wood on R. R. (Minor's ed.), sec. 454; Pacific Express Co. v. Danrell, 62 Tex. 639; 2 Am. & Eng. Ency. Law (1st ed.), 909; Thomas C. Mfg. Co. v. Wabash, etc., R. R. Co., 62 Wis. 642.

The damages sought to be recovered in this suit were not within the contemplation of the parties at the time the contract of affreightment was entered into between the Southern Express Company and the Adams Machine Company, nor at any other time.

The rule above contended for is clearly announced in the case of Hadley v. Baxendale, 9 Excheq., 341, and has been universally followed by this court. Y. & M. V. Ry. Co. v. Foster, 23 So. 581; W. U. Tel. Co. v. Clifton, 8 So. 746; W. U. Tel. Co. v. Rogers, 9 So. 823; W. U. Tel. Co. v. Pierce, 82 Miss. 487 (s.c., 34 So. 153).

It cannot be seriously contended that the damages sought to be recovered by the appellee were, or could by any possibility have been, within the contemplation of the parties when this consignment of freight was delivered and contract made for its carriage.

In addition to all this, the damages sought and recovered by the appellee were remote, speculative, uncertain, and contingent, and were, therefore, not properly recoverable in this suit.

The carrier is never liable in damages for a breach of contract unless the same naturally and in the usual course of things flow from the breach. W. U. Tel. Co. v. Clifton, 68 Miss. 307; Hadley v. Baxendale, supra; R. R. Co. v. Ragsdale, 46 Miss. 458; Alexander v. W. U. Tel. Co., 66 Miss. 161; Paducah Lumber Co. v. Paducah Water S. Co., 25 Am. St. Rep., 536.

Mere notice of special circumstances or of the importance of the shipment in question would not have had the effect of rendering appellant liable for more than ordinary damages; on the contrary, in order to have any such effect, the notice not only must have been given, but it must have been given under such circumstances as to have made it a term of the contract, otherwise no liability for such damage arose when the contract was breached.

If the special circumstances as to the importance of the shipment and prompt delivery were unknown to the appellant, it can only be supposed or assumed to have had in contemplation the injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from a breach of the contract. 13 Cyc., 34, note 88.

A. J. McCormick, for appellee.

The gravamen of the declaration in the case at bar is that of neglect, or breach of duty, in the course of the general employment of appellant. In other words, the action is that of tort, and not for a breach of contract. "It is settled," says the court in the case of Waters v. Railroad Co., 74 Miss. 534, "that in this class of cases plaintiff may waive the contract and sue in tort." Heirn v. McCaughan, 32 Miss. 17; Railroad v. Hurst, 36 Miss. 660.

This was not an action on the contract, but an action on the case, for the further reason that there never was any contract between appellant and appellee. It appears that under the rule established by the English courts, the first carrier of a series of connecting carriers becomes liable for the entire transportation. With but few exceptions, the courts of this country have adopted the rule that the liability of the first carrier ends with their delivery to the succeeding carrier. This rule has been adopted by the courts of Indiana, Kansas, Kentucky, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, Texas, Vermont, Virginia, and in the federal courts. It is also the rule in Mississippi Ry. Co. v. Holmes, 75 Miss. 388; Crawford v. Southern, etc., 51 Miss. 222. By making an express provision in the contract with the first carrier, the benefit of all provisions in the contract may be made to inure to the benefit of subsequent carriers, but under the American rule just referred to, these provisions will not so inure unless specially stipulated. Kansas City Ry. Co. v. Sharp, 64 Ark. 115; Whitworth v. Erie Ry. Co., 87 N.Y. 4:13; Browning v. Goodrich, etc., 78 Wis. 391; Burroughs v. Grand Trunk Ry., 67 Mich. 351; McMillan v. Mich. Southern, 93 Am. Dec., 208; Robinson v. New York Steamship Co., 63 N.Y. 211; Martin v. American Express Co., 19 Wis. 336. It necessarily follows that, so far as this record is concerned, the contract between the Southern Express Company and the Adams Machine Company cannot affect the question of liability. As the record stands, the Southern Express Company could not be held liable; its contract is not in the record, and under the ruling of this court it is prima facie not liable itself after delivery. It is presumed that there is nothing in the contract with reference to subsequent carriers, and for a subsequent carrier to avail itself of the contract, or anything collateral thereto, the contract must be produced and the provision pointed out. The last four cases above cited, in addition to this reason, place it on the further ground that the subsequent carrier cannot avail itself of the provisions of the contract, for the reason that the succeeding carrier is not a party to the contract. It would be rather remarkable if appellant, who is at fault, could be permitted to shield itself behind the cloak of the Southern Express Company, who is not at fault.

If it be conceded that appellant is entitled to the benefit of lack of notice of the special damage which would accrue by reason of the failure to deliver the machinery, there being no notice to the Southern Express Company, it is admitted by counsel for appellee that the general rule is as stated in the brief of distinguished counsel for appellant--to wit that no special damage can be recovered for the failure to deliver where the carrier had no notice at the time the contract was entered into of the importance of prompt delivery. But the attention of the court is called to one very important and general exception to this rule. Where the carrier, after receipt of the goods to be shipped, becomes charged with notice of the importance of prompt delivery, then fails to deliver the shipment and fails to notify the consignee of the loss of the goods, then he becomes liable for all special damage which may accrue. And especially is this true in ...