Kates Transfer & Warehouse Co. v. Klassen

• Citation: 59 So. 355,6 Ala.App. 301
• Parties: KATES TRANSFER & WAREHOUSE CO. ET AL. v. KLASSEN.
• Decision Date: 28 May 1912
• Court: Alabama Court of Appeals

59 So. 355

6 Ala.App. 301

KATES TRANSFER & WAREHOUSE CO. ET AL. v. KLASSEN.

Court of Appeals of Alabama

May 28, 1912

Appeal from City Court of Birmingham; J. T. Stokely, Judge.

Action by Mrs. M. T. Klassen against the Kates Transfer & Warehouse Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

John T. Glover, of Birmingham, for appellants.

Hugh H. Ellis, of Birmingham, for appellee

PELHAM, J.

In support of the motion to establish the bill of exceptions, it is shown that the case was tried in the city court of Birmingham on the 5th day of April, 1911, and judgment rendered against the defendant, who made a motion for a new trial, which motion was heard and denied on the 8th day of April, 1911. Thereafter, on the same day, to wit, April 8 1911, the Honorable J. T. Stokely, the judge who presided on the trial of said case and heard and passed upon the motion for a new trial, resigned from office. The next call of the division in this court at which an application to establish a bill of exceptions could be made was on April 17, 1911, or nine days after the motion was overruled and the judge resigned. Under the ruling made by this court in the case of Flake v. State, 2 Ala. App. 134, 56 So. 47, the application to establish the bill of exceptions was seasonably made, and, the bill presented being admitted to be correct, the motion to establish will be granted.

Suit was brought in the trial court by the appellee to recover damages for the injury or destruction of two trunks and contents delivered to the appellant, who was engaged in a general transfer business in the city of Birmingham, to be carried, for a reward, from the residence of the plaintiff's sister, where plaintiff was visiting, to the terminal station in the city of Birmingham.

The record shows certain rulings on the pleadings, but no assignment of error is based on any ruling of the court on the pleadings; issue being joined on the second, third, and fourth counts of the complaint and the first, second, and third pleas. The first count of the complaint was for failure to deliver, the second count was for injury or damage done to the goods, and the third count alleged a failure to deliver and claimed special damages for inconvenience, trouble, and expense incurred "in having to lay over in Birmingham for, to wit, one day and night, having previously bought her ticket for Atlanta, Ga., and was prevented from departing at her arranged time by reason of her failure to receive said trunks and contents." The defendant's pleas Nos. 1, 2, and 3 were general denials and amounted only to the general issue.

The plaintiff's evidence was to the effect that the trunks were delivered to the defendant transfer company's agent at the home of the plaintiff's sister, a drayman, who was instructed to deliver them at the terminal station in time for the 4:10 p. m. train for Atlanta, as the plaintiff intended to take that train. Before the delivery to the drayman, the plaintiff had telephoned to the defendant's office to secure its services in having the trunks carried to the station. It was shown that the trunks were not taken to the station, that they were damaged, one of them being broken open and some of its contents scattered on the ground, on account of the wagon in which they were carried having been struck by a train on the tracks of the Louisville & Nashville Railroad Company. The collision was shown to have been due to the fault or negligence of the defendant's agent or driver in charge of the wagon. On account of not getting her trunks, due to the defendant's breach of duty, the plaintiff did not go on the contemplated train to Atlanta but remained in Birmingham to look after and regain her baggage. She found the trunks in a damaged and broken condition at the defendant's warehouse in a different part of the city from the station, and the contents piled upon the floor, and upon plaintiff demanding her property it was refused to her unless she would sign "a paper," which she refused to do. The next day the plaintiff purchased two new trunks, sent them to the defendant's warehouse and packed the remainder of her articles that had not been lost into these trunks and had them sent to the station, and the plaintiff left for Atlanta that afternoon with her baggage.

The appellant contends that the court was in error in allowing the plaintiff to testify to the cost of certain of the articles for which damages were claimed for loss or injury, and that there was a failure upon the part of the plaintiff to prove the value or amount of damage, or furnish any data from which the jury could with reasonable accuracy ascertain or compute the amount of damage and render an intelligent verdict therefor. The bill of exceptions shows in several different instances that when the plaintiff was being examined as a witness in her own behalf, and her counsel asked her what the different articles that had been lost or damaged were worth, no objection was offered to these questions, but that each time when the witness answered the question as to the worth of the article by saying that it cost a certain amount, the defendant moved to exclude the answer on various grounds, but in no instance on the ground that the answer was not responsive to the question. In some of the instances the plaintiff gave data from which a reasonable estimate of the then present value of the article could be fairly arrived at; as when she testified about the watch that was lost and said, "It cost $15 ten years ago, it was goldplated, double-faced, Elgin movement watch, and was in good running order at the time of its loss." In testifying about the trunks, she said: "One of the trunks cost $6, and the other one cost $10. One of the trunks was in good condition, but the $6 trunk was not in as good order as the other, but was substantial." In testifying about the lost photographs, she gave data from which the worth to her could be estimated. In that connection she testified: "Of the six photographs that were lost, two of them were pictures of my dead sisters and the only pictures that I had of them, and I cannot replace them. The other photographs were pictures of friends and cannot be replaced."

The action of the court in...