Yazoo & M. V. R. Co. v. Consumers' Ice & Power Co.

• Decision Date: 15 March 1915
• Docket Number: 16342
• Parties: YAZOO & M.V.R. Co. v. CONSUMERS' ICE & POWER CO
• Court: Mississippi Supreme Court

67 So. 657

109 Miss. 43

YAZOO & M.V.R. Co. v. CONSUMERS' ICE & POWER CO

No. 16342

Supreme Court of Mississippi

March 15, 1915

APPEAL from the circuit court of Coahoma county. HON. SAM C. COOK Judge.

Suit by the Consumers' Ice & Power Company against the Yazoo &amp Mississippi Valley Railroad Company. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Mayes &amp Mayes and Chas. N. Burch, for appellant.

Cutter & Johnston, for appellee.

OPINION

REED, J. COOK, J.

This is an action brought by appellee to recover from appellant damages which it was alleged appellee sustained when appellant spiked down and closed for use a spur track that served appellee in its business of shipping ice. The case was tried before the circuit judge, jury being waived. He rendered judgment in favor of appellee in the sum of $ 700, and appellant appealed.

The proof is sufficient to sustain the finding of the trial judge as to liability.

The track was closed for six days in the latter part of September, 1907. In its declaration appellees claimed damages from: (1) Loss of gains and profits, seven hundred and fifty dollars; (2) loss of services of its president, one hundred dollars; and (3) amounts paid for services of attorney and for traveling, hotel, telegraph, and other expenses of its attorney and president, three hundred and fifty dollars.

Now as to the proof of damage. We find in the correspondence between the parties that appellee promptly made claim for payment of loss sustained. A few days after the occurrence, in a letter dated September 30, 1907, appellee sent appellant a statement of account, of which the following is a copy:

For loss on account of cutting out siding and failure to place cars for shipment of ice, Sept. 22 to Sept. 27, inclusive:

Six days' loss at factory, at $ 30 per day

$ 180 00

Six days' time of W. A. Crawley, at $ 15 per

day

90 00

R. R. fare, hotel, telegraph and other

incidentals

50 00

Attorney's fees, including hotel, traveling,

telegraph, and other incidental expenses paid

J. W. Cutrer

150 00

$ 470 00

Mr Crawley, president and manager of appellee company, testified that his company was put out of business as far as freight shipments were concerned, and that it would be difficult to arrive at exact figures as to amount of loss. He said the plant sustained a loss of one hundred dollars per day. When asked what expenses were incurred in his effort to have the obstruction removed, he answered:

"Well, I gave it six days of my time; attended to nothing else absolutely; my time I estimate, was worth at least fifteen dollars a day--ninety dollars. I paid out for railroad fare, hotel, telegraph, and other incidentals fifty dollars; then there is an attorney's fee, including hotel, travel, and stenographer and other incidental expenses; paid J. W. Cutrer one hundred and fifty dollars; those three items make two hundred and ninety dollars expenses."

It seems from the evidence that the loss claimed was from the inability to ship bulk ice in cars which were brought to the factory over the spur track. No effort was made to take the ice to the railroad depot and there ship it. Nothing was done towards shipping except to ask that cars be placed on the track at the factory.

Mr. Crawley said that he arrived at the amount of loss of one hundred dollars per day by a mental calculation. He said this is what the company ought to have earned on its shipments. This estimate included his expenses. He did not know that the company's books would show a clear profit of one hundred dollars per day on any six days in September, 1907. Some ice was manufactured during the time. He could not say the amount. The books would show. The company's books covering the term were not introduced; they could not be found. He could not mention any particular order that he had, about that time, to be filled, but says the factory was selling its capacity during September. When asked if business was not lighter because the weather was getting cooler in the last of September, he answered, "No sir; September we regard as one of our best ice months; everybody is having chills and fever, and then it is hot."

Mr. Steve Castleman testified for plaintiff. He said that he could not swear positively what the actual loss to the business from the closing of the spur track was, but that he had had several years' experience with the business, and from his knowledge of it it would be anywhere from one hundred dollars to one hundred and fifty dollars a day.

Mr. Bradley, a witness for appellant, and railroad agent at Belzoni where the ice factory was located, testified that appellee's shipments of bulk ice would not average a small car a day, such car containing about six thousand pounds. There was no other evidence as to this.

Mr. Crawley testified that the prices for ice during September, 1907, varied from five dollars to eight dollars per ton. He could not tell what sales he had on which the factory could not fill during the six days the track was closed.

It is evident that only compensatory damages were awarded in this case. In truth, the proof does not present a case for punitive damages.

The rule regarding the recovery of gains and profits lost through breach of contract was announced in the case of Railroad Company v. Ragsdale, 46 Miss. 458, and reannounced in the recent case of Crystal Ice Co. v. Holliday, 106 Miss. 714, 64 So. 658, and is:

"Losses of profits in a business cannot...