Chapman v. Fargo

• Decision Date: 26 February 1918
• Citation: 223 N.Y. 32,119 N.E. 76
• Parties: CHAPMAN v. FARGO.
• Court: New York Court of Appeals Court of Appeals

223 N.Y. 32

119 N.E. 76

CHAPMAN

v.FARGO.

Court of Appeals of New York.

Feb. 26, 1918.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Louis H. Chapman against James C. Fargo. From a judgment (165 App. Div. 950,150 N. Y. Supp. 1080), affirming judgment of the Trial Term on verdict for plaintiff, defendant appeals. Reversed, and complaint dismissed.

See, also, 160 App. Div. 913,145 N. Y. Supp. 1117.

William Townsend, of Utica, for appellant.

William F. Dowling, of Utica, for respondent.

HISCOCK, C. J.

This action was brought to recover damages for unreasonable delay in the transportation of moving picture films which were delivered to the defendant express company in Troy for shipment to the plaintiff in Utica. There was evidence from which the jury could find as it did that there was unreasonable delay in the delivery of the films, and plaintiff has been allowed to recover as damages the receipts or profits which it is claimed he would have realized from the exhibition of said films, if they had been delivered with reasonable promptness, through the attendance at his theater at a certain rate of admission of many people who stayed away or paid a lower rate of admission because said pictures were not exhibited. Upon this appeal the important propositions urged upon our attention are: First, that plaintiff was not entitled to recover such loss of profits; and, second, that even if he was, no competent evidence was given of their amount. In view of our conclusions in respect of the first proposition, it will be unnecessary to discuss the second one. The first step in the discussion will be to state the circumstances under which the films were received by defendant and the contract thereby established between him and the plaintiff, as such circumstances could be found most favorable to the plaintiff.

It appears, and I think defendant must be charged with knowledge of the fact, that films are sent out for use by a central company, and that after having been exhibited in one place they are shipped on for use in another one. These particular films were originally sent out by a company in New York, and after they had been exhibited in Troy they were brought to the defendant's office in that city for shipment to plaintiff. They were inclosed in ‘a leather grip or handbag’ which was not the regulation package in which films were generally shipped. There were pasted on the handbag labels which contained respectively the word ‘Rush,’ the name of the company which originally shipped out the films, and the words ‘Motion Picture Films' or ‘Films.’ The messenger who brought the package to the express office told the agent ‘that the package contained films and should be rushed on account of showing; something to that effect; I won't say that those were the exact words.’ The package was directed to ‘L. H. Chapman, Toy Novelty Company,’ in Utica. In addition evidence was given by the plaintiff that the pictures shown by these films were of an unusually attractive character; that he had especially advertised their exhibition on Christmas day in a theater owned by him, and also tending to show, as claimed, that if the films had been delivered with reasonable promptness his theater would have been attended by a large number of persons paying each ten cents for admission, whereas, owing to the failure of delivery and inability to exhibit the pictures from these particular films, a large number of persons stayed away from his theater entirely, and a large number of others only paid an admission fee of five instead of ten cents. On this evidence, as already stated, plaintiff was permitted to recover for loss of profits in the operation of his theater.

When we analyze this evidence for the purposes of this case we see that at the time of shipment the defendant knew that the package contained films which were to be exhibited, and that in general terms he was notified that transportation was to be ‘rushed’ because they were to be exhibited. There was no notice, express or implied, that plaintiff was to be the exhibitor; that he owned a theater for which exhibition of said films on an important holiday like Christmas had been specially advertised; that said films possessed such particular attractiveness for the public that they could not be readily replaced; and that on failure by defendant to deliver them by a certain day it would be necessary to close the theater or supply their place with less attractive and less profitable ones. This notice was not enough to lay the basis for the present recovery.

Defendant, knowing that the package contained films which were passed around a circuit for exhibition and having been notified to ‘rush’ them on that account, is chargeable with such damages as would naturally result from unreasonable delay, and which, therefore, must be deemed to have been within the contemplation of the parties when the shipment was made. Sutherland on Damages (4th Ed.) vol. 3, §§ 903, 905, 913; Hutchinson on Carriers (3d Ed.) vol. 3, § 1369; Harvey v. Conn., etc., R. R. Co., 124 Mass. 421, 26 Am. Rep. 673;Pilcher v. Cent. of Ga. Ry. Co., 155 Ala. 316, 46 South. 765; L. & N. R. R. Co. v. Mink, 126 Ky. 337, 103 S. W. 294;St. Louis & S. F. R. R. Co. v. Farmers' Union Co., 34 Okl. 270, 125 Pac. 894.

In the case of property like films intended for use as distinguished from sale or some other purpose, the ordinary damages would be the loss of rental value caused by the delay and perhaps certain incidental expenses if incurred. Sutherland on Damages, vol. 4, § 905; Hutchinson on Carriers, vol. 3, § 1373.

But before defendant could be held to special damages, such as the present alleged loss of profits on account of delay or failure of delivery, it must have appeared that he had notice at the time of delivery to him of the particular circumstances attending the shipment, and which probably would lead to such special loss if he defaulted. Or, as the rule has been stated in another form, in order to impose on the defaulting party a further liability than for damages naturally and directly, i. e., the ordinary course of things, arising from a breach of contract, such unusual or extraordinary damages must have been brought within the contemplation of the parties as the probable result of a breach at the time of or prior to contracting. Generally, notice then of any special circumstances which will show that the damages to be anticipated from a breach would be enhanced has been held sufficient for this effect.

In this case it was not a sufficient basis for recovery for loss of special profits that the carrier should know of the general purposes for which the films were to be used. He should have been notified of the...