St. Louis Southwestern Railway Company v. Tucker
| Decision Date | 19 November 1923 |
| Docket Number | 259 |
| Citation | 255 S.W. 553,161 Ark. 140 |
| Parties | ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. TUCKER |
| Court | Arkansas Supreme Court |
Appeal from Clay Circuit Court, Eastern District; W. W. Bandy Judge; affirmed.
Judgment affirmed.
Lamb & Frierson, for appellant.
The court erred in directing a verdict for the plaintiff. There was no legal measure of damages pleaded, and the court erred in allowing plaintiff to prove the amount required to repair the show-cases. 88 Ark. 594; 76 Ark. 542; 89 Ark. 518; 110 Ark. 49; 111 Ark. 521; 101 Ark. 172.
Hunter & Hunter, for appellee.
The measure of damages was correct. 120 Ark. 264; 134 Ark. 430; 120 Ark. 119. Objections not raised in the lower court cannot be considered here for the first time. 130 Ark. 291; 133 Ark 196; 154 Ark. 440.
The plaintiff in this case alleged that he shipped eight show-cases over the defendant railroad, and that "said show-cases were so badly damaged and broken when delivered that it cost plaintiff, on account of such damage and breaking, to repair the same, in actual cash the sum of $ 273.35, to his damage in that amount," wherefore he prayed judgment in that amount.
The show-cases were second-hand, and plaintiff testified that he bought them at a bargain, and that he paid $ 442 for them and $ 100 freight, and that he "figured their value at $ 750," and in answer to a question from his attorney he stated the market value of the cases to be $ 750.
After describing the manner in which the cases were broken, the witness proceeded to relate how he had repaired them, and that the cost thereof had been $ 273.35, whereupon counsel for the railroad objected to this answer, because "(1), there was no legal damage alleged in the complaint, and (2), because that would not be the measure of damage under the law, the true damage being the difference between the market value of the property at Center, Missouri (the point of shipment), and its value when tendered him."
The witness was then asked the market value of the show-cases in the condition in which they were received. He answered that the cases, in their crates, looked like a car of junk, and looked so bad he didn't want to receive the shipment at all, but he did receive it because he realized he could get more out of it than any one else. He then answered that the value was $ 200.
Under the direction of the court the jury returned a verdict for the plaintiff for $ 273.35, and the railroad company has appealed.
It is obvious that the plaintiff stated his cause of action and the measure of his damages defectively; but there was neither demurrer to the complaint nor motion to make it more definite, and his testimony made a case which entitled him to recover damages.
The plaintiff was right in assuming that it was his duty to receive the cases, notwithstanding their injured condition, and it was his duty to minimize the damage, if this could be done at a reasonable cost, and the sum expended for that purpose does not appear to have been unreasonable, in comparison with the value of the property in the restored condition.
In the case of St. L. I. M. & S. Ry. Co. v. Laser Grain Co., 120 Ark. 119, 179 S.W. 189, we said:
The undisputed testimony in this case is to the effect that the plaintiff had paid $ 542 for the cases, including the freight, and he stated the market value, at the time and place of delivery, to be $ 200, the difference of $ 342 being greater than the cost of restoration, for which amount the jury's verdict was returned.
In some cases the cost of restoration is itself the proper measure of damages. This would be true in a case where the article...
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Manhattan Construction Company v. Atkisson
... ... complaint more specific. St. L. S.W. Ry ... Co. v. Tucker, 161 Ark. 140, 255 S.W. 553; ... Wright Motor Co. v. Shaw, 171 Ark. 935, ... ...
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Gibson v. Lee Wilson & Company
... ... Lumber Co. v. Scott, 167 ... Ark. 84, 267 S.W. 780, and St. Louis S.W. Ry. v ... Tucker, 161 Ark. 140, 255 S.W. 553. In 15 Am. Jur ... ...
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Gibson v. Lee Wilson & Co.
...to minimize his damages. See Wisconsin & Arkansas Lumber Co. v. Scott, 167 Ark. 84, 267 S.W. 780, and St. Louis Southwestern R. Co. v. Tucker, 161 Ark. 140, 255 S.W. 553. In 15 Am.Jur. 426, the rule is "One deprived of the fruits of a contract must use the efforts of a reasonably prudent ma......
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Manhattan Const. Co. v. Atkisson, 4-4061.
...his damages were defectively stated, in the absence of demurrer or motion to make his complaint more specific. St. Louis Southwestern R. Co. v. Tucker, 161 Ark. 140, 255 S.W. 553; Wright Motor Co. v. Shaw, 171 Ark. 935, 287 S.W. 177. Moreover, the evidence was introduced in this case withou......