Fredenburgh v. Allied Van Lines, Inc.

• Decision Date: 08 November 1968
• Docket Number: No. 8490,8490
• Parties: Mary W. FREDENBURGH, Plaintiff-Appellee, v. ALLIED VAN LINES, INC., a corporation, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 868

446 P.2d 868

79 N.M. 593

Mary W. FREDENBURGH, Plaintiff-Appellee, v. ALLIED VAN LINES, INC., a corporation, Defendant-Appellant.

No. 8490.

Supreme Court of New Mexico.

Nov. 8, 1968.

Modrall, Seymour, Sperling, Roehl & Harris, Peter J. Adang, Albuquerque, for defendant-appellant

Rodey, Dickason, Sloan, Akin & Robb, Joseph J. Mullins, Mark K. Adams, Albuquerque, for plaintiff-appellee.

OPINION

CHAVEZ, Chief Justice.

Plaintiff-appellee Mary W. Fredenburgh brought suit against defendant-appellant Allied Van Lines, Inc., alleging breach of a contract to carry her household goods and other personal effects from Summit, New Jersey, to Albuquerque, New Mexico. The trial court gave judgment for appellee, awarding her $4,695.24 as compensatory damages to her property, $1,000 for the inconvenience flowing from the damage to her property, and $2,000 as punitive damages, plus interest and costs.

On September 14, 1965, appellant loaded appellee's goods onto a truck at her house in New Jersey, at which time appellant also executed a bill of lading acknowledging receipt of appellee's goods and agreeing to deliver them to appellee in Albuquerque. At the same time, appellee signed a document entitled 'Household Goods Descriptive Inventory.' On this document were listed appellee's goods and, by means of a letter-code, the condition of the goods was, supposedly, noted. Appellee's belongings then began their ill-fated trip toward New Mexico. In New York City, the truck carrying the goods broke down and was delayed two days for repairs. The truck then proceeded to Harrisburg, Pennsylvania, where it broke down again and a new engine was installed. On September 26, 1965, the truck arrived in Chicago and was parked in a parking lot. While so parked, an oil stove in the parking lot attendant's hut exploded, causing a fire which spread to the truck, resulting in fire and smoke damage to appellee's belongings and damage by water used to extinguish the fire. The goods may have been further damaged by their transfer to another truck because of the fire. Appellee's goods were delivered to her at her new home in Albuquerque on October 11, 1965. Appellee expended approximately $3,000 for the repair, cleaning and replacement of her property. Further facts appear below.

Appellant's first point on this appeal is:

'WHERE THERE IS AN AGREEMENT FOR THE SHIPMENT OF GOODS BETWEEN A CARRIER AND A SHIPPER, THE BILL OF LADING CONSTITUTES THE ENTIRE CONTRACT BETWEEN THE PARTIES.'

Appellant argues that the bill of lading was the written contract of carriage between the parties and that this court must look only to the written terms of the contract to determine the rights of the parties on this appeal. However, if this were true, then we would have to consider the applicability of certain provisions for limitations of liability which are in the bill of lading. As appellee points out, this would necessitate our considering matters of affirmative defense which were neither pleaded nor otherwise properly raised in the trial court. Under Rule of Civil Procedure 8(c) (§ 21--1--1(8)(c), N.M.S.A., 1953 Comp.), matters constituting an affirmative defense must be pleaded. If an affirmative defense is not pleaded or otherwise properly raised, it is waived. See 2A Moore's Federal Practice, Para. 8.27(3) at 1853 (2d Ed.1967). A provision in a contract for the carriage of goods which limits the carrier's liability is a matter of affirmative defense. See St. Louis, I. M. & S.R. Co. v. Cumbie, 101 Ark. 172, 141 S.W. 939 (1911); Clark v. Nipper, 315 S.W.2d 439, (Tex.Civ.App.1958); American Ry. Express Co. v. Thompson, 2 S.W.2d 493, (Tex.Civ.App.1927), as it 'raises matter outside the scope of plaintiff's prima case.' 2A Moore's Federal Practice, Para. 8.27(3) at 1851 (2d Ed.1967). There is no question that the matter of limitation of liability was not pleaded; thus, the question here is that of whether or not the matter was otherwise properly raised in the trial court.

Appellant asserts, citing 2A Moore's Federal Practice, Para. 8.27(3) at 1853 (2d Ed.1967), that failure to plead matter which constitutes an affirmative defense does not preclude a party from taking advantage of the opposing party's proof, if the proof establishes the defense. Although this proposition may be correct, Illinois Cent. R. Co. v. J. R. Kilgore & Son, 12 Ala.App. 358, 67 So. 707 (1914); cert. denied, J. R. Kilgore & Son, Ex Parte,191 Ala. 671, 67 So. 1002 (1915); Hudson v. Wabash W. Ry. Co., 101 Mo. 13, 14 S.W. 15 (1890); see Davis v. Zimmern, 211 Ala. 63, 99 So. 307 (1924); Ward v. Curry, 341 S.W.2d 830 (Mo.1960), we do not believe that appellant should be allowed to take advantage of appellee's proof for the first time on appeal. See Supreme Court Rule 20(1) and (2) (§ 21--2--1(20)(1) and (2), N.M.S.A., 1953 Comp.); Soens v. Riggle, 64 N.M. 121, 325 P.2d 709 (1958); Mutz v. Le Sage, 61 N.M. 219, 297 P.2d 876 (1956); compare Consoer, Townsend & Associates v. Addis, 37 Ill.App.2d 105, 185 N.E.2d 97 (1962). Appellant did not point out to the trial court that he wished to take advantage of the provisions in the bill of lading limiting liability. We do not believe the trial court had the duty of perusing the contract in order to find matters of affirmative defense which were not pleaded and thereby frame the issues in the case for counsel. The reasoning stated in an analogous case, Maloney v. Brandt, 123 F.2d 779 (7th Cir. 1941), is equally applicable here:

'* * * It would manifestly be unfair to hold that the trial court had erred in a matter it had not considered. Litigants are not entitled to hide a point in an obscure pleading and present it for the first time on review, but should fully and fairly acquaint the trial court with all matters relied upon. * * *'

Appellant did request a finding of fact which set out a part of the bill of lading as follows:

"SECTION 1. The carrier shall be liable for physical loss of or damage to any articles from external cause while being carried. * * *' (Emphasis added.)'

We do not decide whether this provision would, by itself, limit appellant's liability. Even if it would, the requested finding was, so far as the record discloses, the first intimation regarding this defense. This was too late to raise the issue. See Denver Union Stock Yard Co. v. United States, 304 U.S. 470, 58 S.Ct. 990, 82 L.Ed. 1469 (1938); Dodd v. Mills, 219 Ark. 91, 240 S.W.2d 25 (1951); compare Consoer, Townsend and Associates v. Addis, supra. To allow the issue to be thus raised would defeat the purpose of Rule 8(c), supra, which is:

'* * * (T)o require the defendant to announce in his pleadings what his defense will be, if it includes any of the matters referred to in the Rule, and to give plaintiff the opportunity of knowing what character of proof he may need to meet the defenses pleaded. * * *'

Reid v. Associated Employers Lloyds, 164 S.W.2d 584 (Tex.Civ.App.1942).

Appellant's second point reads:

'THE DISTRICT COURT ERRED IN AWARDING THE PLAINTIFF ANY DAMAGES IN EXCESS OF THE LIMITATIONS OF LIABILITY CONTAINED IN THE CONTRACT OF CARRIAGE BETWEEN THE PLAINTIFF AND THE DEFENDANT.'

In view of our disposition of appellant's first point, it is not necessary for us to consider the application of the limitations of liability in the bill of lading.

Appellant's third point is that:

'THE DISTRICT COURT ERRED IN BASING THE PLAINTIFF'S COMPENSATORY DAMAGES ON THE DIFFERENCE IN VALUE OF THE PLAINTIFF'S GOODS BEFORE DAMAGE AND AFTER DAMAGE, BUT BEFORE REPAIR.'

Appellant's contention is that the measure of damages which should have been applied, with the exception of damages regarding two pianos, is simply that of the cost of repairing the items damaged. With regard to the pianos, appellant contends that the cost of repairs plus the amount of depreciation in value after repairs is the proper measure of damages. Appellant asserts that the two pianos are the only items which were not entirely restored by the repair work done.

The measure of damages should be that which fully and fairly compensates for the injuries received. See Illinois Cent. R. Co. v. Crail,281 U.S. 57, 50 S.Ct. 180, 74 L.Ed. 699, 67 A.L.R. 1423 (1930); Great Atlantic & Pacific Tea Co. v. Atchison, T. & S.F. Ry. Co., 333 F.2d 705 (7th Cir. 1964), cert. denied, 379 U.S. 967, 85 S.Ct. 661, 13 L.Ed.2d 560 (1965); United States v. Northern Pac. Ry. Co., 116 F.Supp. 277 (D.Minn.1953); Rutherford v. James, 33 N.M. 440, 270 P. 794, 63 A.L.R. 237 (1928), overruled on another point in Reed v. Styron, 69 N.M. 262, 365 P.2d 912. See Trujillo v. Clark, 71 N.M. 288, 377 P.2d 958. Generally, where property has been damaged in shipment, the rule for determining the amount of the damages is either the difference between the market value it would have had if it had been transported without damage and its market value in its damaged condition, or the cost of repairs plus any loss in value shown by the difference between the value of the goods after repair and before being damaged. Kirkhof Electric Company v. Wolverine Express, Inc., 175 F.Supp. 43 (W.D.Mich.1958), aff'd 269 F.2d 147 (6th Cir. 1959); Conditioned Air Corp. v. Rock Island Motor Transit Co., 253 Iowa 961, 114 N.W.2d 304, 3 A.L.R.3d 679 (1962), cert. denied, 371 U.S. 825, 83 S.Ct. 46, 9 L.Ed.2d 64 (1962). If the amount of damages arrived at by using the former measure exceeds the amount of damages arrived at by using the latter measure, then the former measure should not be used because it reflects more than the actual loss. On the other hand, where the former measure yields an amount less than the latter measure, the former measure will more accurately reflect the actual loss and should, therefore, be used. See United States v. Northern Pac. Ry. Co., supra. A measure of damages based upon the cost of repairs alone may be used in cases where the damaged goods can be entirely repaired, bringing the value up to its pre-damage level, Kirkhof Electric...