St.Louis & S. F. R. Co. v. Farmers' Union Gin Co.

• Decision Date: 18 July 1912
• Docket Number: Case Number: 1425
• Citation: 34 Okla. 270,1912 OK 505,125 P. 894
• Parties: ST.LOUIS & S. F. R. CO. v. FARMERS' UNION GIN CO.
• Court: Oklahoma Supreme Court

1912 OK 505

125 P. 894

34 Okla. 270

ST.LOUIS & S. F. R. CO. v. FARMERS' UNION GIN CO.

Case Number: 1425

Supreme Court of Oklahoma

Decided: July 18, 1912

Syllabus

¶0 1. DAMAGES--Breach of Contract to Lay Switch Track--Elements of Damage. Where a railroad company has induced a cotton gin company to locate a gin plant on the railroad's right of way, and, for an agreed price paid in advance, contracts to lay a track to the gin plant, the object being to have same ready before the arrival of the heavy machinery and material for the gin, and the putting in of such track is delayed an unreasonable time, in the absence of some plausible excuse for the delay, the road will be held liable for the damage thereby caused; and in an action for the delay, extra expense incurred in moving the machinery and material to the gin site are proper elements of damage.

2. CARRIERS -- Carriage of Goods--Delay--Damages. Where gin stands and machinery for a cotton gin are shipped over a common carrier to a gin company whose plant is located and being built on the carrier's right of way, the carrier is charged with notice of the purpose and use of such machinery, and the period of the year in which it is used, and, in case of unreasonable and negligent delay in shipment, will be held liable for the damages which are the direct result of such delay, although no express mention of the purpose of such machinery and the period in which it is desired for use is made in the shipping contract.

3. SAME. In an action against a carrier for unreasonable and negligent delay in transporting machinery, the detriment caused by the delay is the loss of the use of such machinery during the time; and, where the purpose of the machinery and the period of its use are known to the carrier, the expense incurred in obtaining other machinery, the expense of maintaining idle hands, the rental value of the machinery, if ascertainable with reasonable accuracy, or the interest on money invested in idle machinery, are proper elements of damage; but remote and conjectural matters, such as interest on money borrowed for speculative purposes, or damage done to cotton purchased with such borrowed money--matters not approximately growing out of the delay--are not proper elements of damage. Neither are loss of profits a proper element unless expressly mentioned and made a condition of the contract at the time of its execution, and then only when, such profits can be estimated with reasonable certainty.

4. TRIAL--General Verdict--Separate Causes of Action. Where two causes of action are submitted together, a general verdict for plaintiff should not be returned, but there should be separate findings on each cause.

W. F. Evans, R. A. Kleinschmidt, and J. H. Grant, for plaintiff in error.

Louis S. Wilson and Victor O. Johnson, for defendant in error.

HARRISON, C.

¶1 There are two distinct causes of action alleged. The court instructed the jury on each. The jury returned a general verdict for $ 1,000. No objection is urged against the form of the verdict; hence the defective features are deemed to have been waived. While not saying whether a judgment based upon such a verdict would be reversed if properly presented, yet we would suggest that a better practice in suits of this character would be to return separate findings as to each separate cause of action. "In general, where two causes of action are submitted to the jury at the same time, a general verdict for the plaintiff should not be returned." (22 Pl. & Pr. 849.) It is a settled rule in Missouri that this form of verdict is reversible error. In Seibert et al. v. Allen, 61 Mo. 482, Justice Hough, in delivering the opinion of the court on this question, says:

"There were two counts, each containing a separate and distinct cause of action, and a single verdict would have been improper. In Mooney v. Kennett, 19 Mo. 551, Judge Scott said: 'A general finding for the defendant on a petition containing several causes of action may be sustained; but, where the finding is for the plaintiff, every consideration of propriety requires that there should be a verdict in each cause of action, and these will all be blended in one judgment.' Clark v. Railroad, 36 Mo. 202; Pitts v. Fugate, 41 Mo. 405; Collins v. Dulle, 45 Mo. 269; Bigelow v. Railroad, 48 Mo. 510; Owens v. Railroad, 58 Mo. 386."

¶2 Had there been separate findings in each cause of action in the case at bar, the judgment could have been so modified as to obviate another trial; but in its present form it is impossible to ascertain upon what particular facts the verdict is based. We cannot say what issues were found, or whether the verdict is responsive to all the issues involved, and inasmuch as the jury was instructed to take into consideration improper elements of damage in reaching its verdict, and inasmuch as evidence tending to establish improper elements was admitted, we are constrained to reverse the judgment rather than establish an unsafe precedent. As to the damages alleged to have been sustained by defendant's failure to put in the switch, in the first cause of action, we think each item alleged was a proper element of damage, and that the evidence fairly supports the allegations. It is contended by counsel for plaintiff in error that there was no evidence tending to support the averment that the switch was to be put in within 30 days. Without passing upon this contention, we will say that, under the circumstances in this case, it does not matter whether the defendant company made a definite promise to complete the switch in 30 days or not. The railroad company had induced the gin company to locate its plant on the railroad company's right of way rather than have it located on the right of way of a competing road. Having acceded to defendant's wishes in this regard, the gin company requested that a switch be laid to the gin site, so as to facilitate the handling of the gin machinery and material, and the shipping of cotton and seed from the gin. The railroad company agreed for a stipulated price to lay the switch. The price was agreed upon and money paid to the company on the day the contract was made. The contract was made July 11th and the track was not completed until November 1st. This, in the absence of some plausible excuse, was an unreasonable delay. Under the agreement the gin company was to do the grading necessary for the switch. This was done within ten days after the contract, and in a manner satisfactory to the railroad, and was accepted by the road. The laying of the switch required but one day's time, after a delay of over three months from the time the grading was completed. And, after the track was laid, there was another delay of about three weeks in putting in a frog by which the tracks were connected, the putting in of which required only about one hour's time. This delay, in our judgment, is closely akin to willfulness, and the only excuse offered is that the road had been unable to get the rails my sooner, and that after the rails were laid it required three weeks more to get a frog. This excuse, in the absence of any showing as to what efforts had been made to get them, is not sufficient to justify the delay. The fulfillment of this contract within a reasonable time is implied by law, whether a definite time was fixed by the contract or not. The railroad had full knowledge of the object and purpose of this switch. It had induced the plaintiff to locate its gin at this point in order to procure the shipping of plaintiff's machinery and material and the products of the gin. It should not be heard to deny knowledge of the purpose of the gin, nor to deny knowledge of the importance of completing the switch within a reasonable time so that the gin could be put in operation by the beginning of the ginning season. The agent of the railroad company who contracted to put in the switch was definitely informed of the importance of having it ready before the arrival of the gin machinery. It was about 40 days after the contract was made before the machined arrived, and had to be hauled to the gin site by wagons. Inasmuch as it required but one day to put in the switch when the work was finally begun, in the absence of some showing for the delay, we think the defendant was guilty of negligence and should respond for the damages resulting therefrom. In the second cause of action, wherein the wrong measure of damages was applied, the elements of which being the expense of maintaining idle hands, expense of a trip to Dallas, amount paid as attorney's fee, damages done to cotton piled on the ground, and interest on borrowed money, it is contended by plaintiff in error that the loss alleged to have been sustained by piling the cotton on the ground, and the interest paid on the borrowed money with which such cotton was purchased, are not elements of...