Percy v. Chicago, Rock Island & Pacific Ry. Co.
| Decision Date | 05 March 1929 |
| Docket Number | 39035 |
| Parties | ALLEN T. PERCY, Receiver, Appellant, v. CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellee |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--FRANK S. SHANKLAND, Judge.
Action to recover damages for delay in the shipment of a carload of cans. The trial court directed a verdict for the defendant and the plaintiff appeals.
Affirmed.
Charles Hutchinson and Earl Lansrud, for appellant.
J. G Gamble and F. W. Miller, for appellee.
The appellant is the receiver of a canning company located at Dexter. We shall refer to said company as the appellant. Appellant was engaged in the business of canning corn. For the purpose of carrying on its business, appellant purchased cans in carload lots of the Continental Can Company of Chicago. Appellant seeks to recover special damages for injury to corn that appellant was unable to pack because of the delay in transporting certain carloads of cans which were shipped over appellee's railroad from Chicago to Dexter. Motion for directed verdict was based upon several grounds. It was sustained generally.
I. It is contended that the appellee was negligent in failing to transport certain of the cars in question and deliver them to the appellant within the ordinary and usual time required for transportation. The appellee seeks to excuse the delay in shipment by reason of the necessity to make certain repairs upon said cars. A fact question was here involved, for the determination of the jury, as to whether or not the appellee was negligent in the shipment of said cars. If there were no other question in the case, it would have been one for the consideration of the jury. However, in view of our conclusion upon the question of special damages, which we shall discuss hereafter, the question as to whether or not the appellee was negligent becomes immaterial in the final determination of the case.
II. At the outset, it is to be noticed that the action is not to recover damages for any injury to the shipment itself. The cans arrived in good condition, so far as shown by the record. Neither is the case of the class where, although the property shipped did not depreciate in quality, there was a loss of a favorable market by reason of the delay in shipment. The claim is solely for special damages for injury to corn which was in condition for packing, and which appellant claims could not be packed because of the failure to transport and deliver the cans in question promptly. The right, under proper circumstances, to recover for special damages caused by reason of delay in the transportation or delivery of a shipment is well recognized. The leading case on the subject is Hadley v. Baxendale, 9 Exch. 341, decided in 1854. This case has been cited by text-writers generally, and by many courts, both in England and in this country.
The general rule is that, in order that there may be recovery for special damages of the character herein considered, notice to the carrier of the purpose for which the shipment is intended and the necessity of prompt shipment and delivery must be given before or at the time the shipment is accepted by the carrier. In Elzy v. Adams Exp. Co., 141 Iowa 407, 119 N.W. 705, we thus announced the rule:
See, also, 3 Hutchinson on Carriers (3d Ed.), Sections 1367, 1368, 1369, and cases cited.
The record fails to show that any notice was given to the appellee, at or before the time of the shipment, of the use to which said cans were to be put, or the possibility of resulting damages by reason of delay in the shipment. The cans were consigned by the Continental Can Company to itself, as consignee. The purpose for which the cans were to be used was not disclosed to the appellee, at or before the time the shipment was made. It is argued that the appellee was charged with notice that the cans were intended to be used by the appellant in its business of canning corn, and that it knew that the canning season was short, and that the cans would be needed by the appellant promptly, and that delay would necessarily result in injury to the corn that was to be canned. The difficulty with this contention of the appellant's is obvious. There was nothing shown of record to apprise the appellee of the purpose for which the cans were to be used. Appellee merely accepted a shipment of cans from the Continental Can Company, as consignor, to the Continental Can Company, as consignee. The delay complained of was a delay of two or, at most, three days. Whether the cans which were being shipped by the Continental Can Company to itself, as consignee, were being shipped for resale or for storage or for inspection or for some other purpose, was in no way disclosed or made known to the appellee. Under the circumstances shown of record, the appellee cannot be charged with notice at or before the time of the shipment that the cans were to be delivered to the appellant for the purpose of canning corn that was then ready for the pack. There is not a syllable of evidence in the record to disclose any knowledge or information imparted to appellee at the time of shipment, with regard to the use that was to be made of the cans. Even if it is to be inferred that the appellee was chargeable with notice that the cans were to be used for the purpose of canning corn, there is nothing in the record to show that the appellee was notified or informed in any way, at or before the shipment, that the appellant did not have an ample and sufficient supply of cans on hand to meet all contingencies. There is likewise an utter want of any evidence to show that the appellee was informed at that time of the amount of corn that the appellant intended to pack, or the condition of the corn, or any other facts or circumstances charging it with notice of peculiar conditions under which the cars were accepted for shipment. The case is clearly distinguishable from the line of authorities where the carrier is charged with notice of peculiar facts and circumstances under which a shipment is accepted, and which render a carrier liable to special damages for delay in shipment. The case of Illinois Cent. R. Co. v. Hopkinsville Can. Co., 132 Ky. 578 (116 S.W. 758), is illustrative at this point. In that case, suit was brought to recover special damages for delay in the shipment of a carload of cans to a canning company, which cans were to be used for the purpose of packing tomatoes. The car of cans was delayed in shipment, and special damages were sought to be recovered, including the value of the tomatoes that were spoiled by reason of the delay. The court, after reviewing the cases, said:
"* * * there can be no recovery here of the special damages...
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