Cooper v. Young

• Decision Date: 31 March 1857
• Docket Number: No. 47.,47.
• Citation: 22 Ga. 269
• Parties: Mark A. Cooper, plaintiff in error. vs. George Young, Superintendent of the Western & Atlantic Railroad, defendant in error.
• Court: Georgia Supreme Court

22 Ga. 269

Mark A. Cooper, plaintiff in error. vs. George Young, Superintendent of the Western & Atlantic Railroad, defendant in error.

No. 47.

Supreme Court of the State of Georgia

MARCH TERM, 1857.

Case, from Fulton Superior Court. Tried before Judge Hammond, at October Term, 1856.

This was an action brought by Mark A. Cooper, against George Young, as superintendent of the Western and Atlantic railroad, to recover damages alleged to have been sustained by reason of the failure of defendant to transport by railroad and deliver a certain quantity of stone coal at the times and places, and in the quantities, which defendant undertook to do.

The plaintiff in his declaration averred that, in the summer of 1852, defendant undertook and promised to transport from Chattanooga, Tennessee, and to deliver to him at Etowah, Cass county, Georgia, for the use of his iron mills, one car load of stone coal per day. That during the month of December of that year, he failed to deliver said coal as per contract, whereby plaintiff's rolling mills ceased operations for the most part of said month, and that he sustained damage thereby to the amount of three thousand dollars.

The defendant pleaded: 1st. The general issue. 2d. Thatif such contract as that alleged was ever made, it was by some one having no authority to do so, and without consideration, the said plaintiff baring paid or tendered no part of the freight. 3d. That if any coal was ever received by said railroad, the same was duly transported and delivered at the place of destination, within a reasonable time after it was received; and if it was not, it was because said railroad and its officers had not the means of transporting the same.

Plaintiff, upon trial offered the depositions of two witnesses, who were employed and engaged in and about his iron manufactory, in December, 1852, who testified that the operations of the establishment were suspended for some time during that month, in consequence of the failure of the railroad to deliver coal; that the beating furnaces of the rolling mill was stopped for five days, and the puddling furnaces, the whole of the month; that the loss sustained by the stoppage of the rolling furnaces was about seventy dollars per day, and of the heating furnaces about one hundred and sixty dollars per day. This estimate of loss was based upon a calculation of the number of tons of iron each furnace would produce daily, if in operation, the value of said iron, and the net profits on each ton manufactured.

The Court, upon motion of defendant's counsel, ruled out and rejected all that part of the depositions relating to the loss of profits sustained by plaintiff in consequence of the stoppage of his mills, and the estimate based upon profits plaintiff would have made if his mills had been in full operation.

To which ruling and decision, counsel for plaintiff excepted, and thereupon tendered his bill of exceptions, &c.

Thos. L. Cooper, for plaintiff in error.

Overby & Bleckley, for defendant in error.

By the Court.—McDonald, J. delivering opinion.

This suit is instituted against the defendant, as a common carrier, for the non-delivery of stone coal, which he had undertaken to carry for the plaintiff from Chattanooga, in Tennessee, to Etowah, in Cass county, Georgia. The plaintiff is engaged extensively in the manufacture of iron, and relies for his supply of coal to carry on his operations, on that which is carried by railroad from Chattanooga to the neighborhood of his works. The coal belonged to plaintiff, the defendant was to transport it. It is alleged, that by reason of the failure of defendant to carry the coal according to contract, the plaintiff was obliged to suspend his work, and that, by reason of that suspension, lie failed to make a certain amount of per diem profit, and this loss of profit, he insists, is the measure of his damages. He offered proof of these profits, which was objected to by the defendant's counsel, and the decision of the Court sustaining the objection, is the only error complained of in the record. The soundness of the decision in law, depends on the rule by which damages are to be assessed against common carriers, for non-delivery of. articles committed to them, at the time and place stipulated for their delivery,

The general rule is, that if a common carrier fail to deliver goods according to contract, be is liable for the value of the goods at the time and place at which be is engaged to deliver them. The rule is an easy and simple one. It is just to the...