Chicago, R.I. & P. Ry. Co. v. Broe

• Decision Date: 06 September 1905
• Citation: 86 P. 441,16 Okla. 25,1905 OK 67
• Parties: CHICAGO, R.I. & P. RY. CO. v. BROE.
• Court: Oklahoma Supreme Court

86 P. 441

16 Okla. 25, 1905 OK 67

CHICAGO, R.I. & P. RY. CO. v. BROE.

Supreme Court of Oklahoma

September 6, 1905

Rehearing Denied June 12, 1906.

Syllabus by the Court.

Where a common carrier fails to deliver merchandise shipped over its line of road within a reasonable time, and there is no depreciation in the intrinsic value of such merchandise, the measure of damages will be deemed to be the depreciation in the market value of such merchandise between the date on which the delivery should have been made and the date on which it actually was made.

[Ed Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 451-461.]

By "market value," as used in the preceding paragraph (and as used in section 2746, Wilson's Rev. & Ann. St 1903), is meant the value at which the article shipped would sell in the open market in the quantities as carried; and where the articles shipped are merchandise, and shipped in large quantities, it is error to measure the damages sustained (if any) by the market value of such merchandise when sold at retail.

Where a railroad company fails and neglects to deliver a car load of freight within a reasonable time (taking into consideration all of the conditions surrounding the shipment), and such delay is due to the negligence of the company, in the absence of any evidence to the effect that the consignee has suffered actual damages, he can recover nominal damages only.

[Ed Note.-For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 451-461.]

Error from District Court, Comanche County; before Justice Frank E Gillette.

Action by George W. Broe against the Chicago, Rock Island & Pacific Railway Company. There was judgment for the plaintiff, and defendant brings error. Reversed.

M. A. Low, Blake, Blake & Low, and W. C. Stevens, for plaintiff in error.

James A. Morris, for defendant in error.

BURWELL J.

The appellee, George W. Broe, purchased a car load of wire and nails in St. Louis, and had them shipped to Lawton over the appellant's road. On October 3, 1901, the local agent notified Mr. Broe that the car had arrived, and he called the next day and paid the freight charges, and personally saw the car on the track. On October 5th men and teams were sent to unload the car, but it could not be found, and on the next day, October 6th, Mr. Broe called on the agent and informed him that the car was not in the yards. The car was finally found at Ft. Sill, the next station, some three weeks afterwards, and the wire and nails replevined by him. The plaintiff prayed damages for the detention of the same.

It is contended by the railroad company that it was excused from delivering the car sooner because of the overcrowded condition of the freight business at that time, at Lawton and that the company was compelled to run cars up the road almost daily and store them on other side tracks, as there was not sufficient trackage facilities at Lawton, and that it used reasonable diligence in delivering the car, in the light of all of the surrounding circumstances. There was sufficient evidence to justify the jury in finding that the company was guilty of negligence. Even after the depot agent was notified by the consignee that the car was at Ft. Sill, no effort was made by the company to return it to Lawton. It was returned in charge of the sheriff of the county, by his directions, after he had seized the property under the writ of replevin. But negligence in failing to deliver goods to a consignee within a reasonable time will not subject the carrier thereof to the payment of more than nominal damages, unless actual damages are proven by a preponderance of the evidence. We will therefore examine the evidence on this point. The plaintiff is the only witness who testified as to the measure of damages. We quote him from the testimony: "Q. You may state if you knew the market value of the wire here, such wire as is in controversy here, at the time you commenced this action. A. Yes, sir. Q. What was its value at that time? A. At the time I commenced? Q. At the time you commenced this action on the 28th of October, 1901? A. It was worth $4 a hundred. Q. You may state if you know what the nails were worth here at that time. A. The nails were worth $4 a hundred, a little fraction less, and a little fraction more, according to the size of the nails. Q. Now you may state what the value of this wire, the market value here at Lawton, was on the 5th day of October, 1901, if you know. A. From the 1st day of October until the 10th day of October we retailed wire at four cents a pound, black wire. Q. Such wire as this? A. Same identical wire; yes, sir. Q. Now, what was the same kind of wire worth on the 28th of October, when you commenced this action? A. Three and one-half cents. Q. Now, in regard to the nails, what were such nails as those in there [meaning in the car] worth at their market value on the 5th day of October, 1901? A. We were retailing nails then at 4 and 4 1/2 cents a pound. Q. What...