Yazoo & M. V. R. Co. v. Delta Grocery & Cotton Co

• Decision Date: 04 February 1924
• Docket Number: 23774
• Citation: 134 Miss. 846,98 So. 777
• Parties: YAZOO & M. V. R. Co. v. DELTA GROCERY & COTTON CO
• Court: Mississippi Supreme Court

98 So. 777

134 Miss. 846

YAZOO & M. V. R. Co. v. DELTA GROCERY & COTTON CO

No. 23774

Supreme Court of Mississippi

February 4, 1924

Division A

APPEAL from circuit court of Coahoma county, Second District, HON W. A. ALCORN, JR., Judge.

Suit by the Delta Grocery & Cotton Company against the Yazoo &amp Mississippi Valley Railroad Company. Judgment for plaintiff and defendant appeals. Affirmed.

Judgment affirmed.

Burch, Minor & McKay, and F. H. Montgomery, for appellant.

The point in controversy is whether plaintiff, a wholesale grocer, is, on the facts of this case, entitled to recover the replacement value of the damaged flour, i. e., the invoice or cost price, plus the freight, if paid by plaintiff, or the resale value, i. e., the price at which plaintiff could have sold the flour to its customers in less than carload lots. The trial judge peremptorily instructed the jury to find for the plaintiff on the basis of the price at which the plaintiff could have resold the commodity to its customers at Clarksdale in less than carload lots, plus interest.

The shipment being interstate, the question as to the correct measure of damages is a Federal question. Adams Express Co. v. Croninger, 226 U.S. 491, 57 Law Ed. 314; Southern Express Co. v. Byers, 240 U.S. 612, 60 Law Ed. 825; Railroad v. Davis, 112 Miss. 119; Railroad v. Rogers, 116 Miss. 99; Telegraph Company v. Eubanks, 121 Miss. 530. Under Federal Statute and decisions, the measure of damages is compensation for plaintiff's "full actual loss." Cummins Amendment to Act to Regulate Commerce, ch. 176, Act March 4, 1915, 38 Stat. at L. 1196, Comp. Stat., sec. 8604a, 4 Fed. Stat. Anno. (2 Ed.), p. 506; McCaull-Dinsmore Co. v. Chicago, etc., R. Co., 253 U.S. 97, 64 L.Ed. 801.

The measure of damages for failure of a common carrier to deliver at destination a part of a carload shipment of merchandise, consigned to a wholesale merchant, is the reasonable market value of such merchandise in carload lots at the time and place of delivery. 10 C. J. 395, sec. 606; Mobile, etc., R. Co. v. Jurey, 111 U.S. 584, 28 L.Ed. 527; New York, etc., R. Co. v. Estill, 147 U.S. 591, 37 L.Ed. 292; Canadian Pac. R. Co. v. Wieland, 226 F. (C. C. A.) 670; Railroad v. Ragsdale, 46 Miss. 458-479; Jamison v. Moon, 43 Miss. 598-600; Railroad v. Millsaps, 76 Miss. 855; Railroad v. Cotton Co., 94 Miss. 351.

In the case of merchandise which may be readily replaced, or secured in unlimited quantities at the point of origin, such market value is the cost of replacement, i. e., the invoice price, plus freight, is paid with interest. Brown Coal Co. v. I. C. R. Co., 192 N.W. 920; 3 Sutherland on Damages, 1098; 1 Michie on Carriers, 597, sec. 891; 2 Moore on Carriers, 582-3, sec. 1; 3 Hutchinson on Carriers, 1610, sec. 1360; Baltimore, etc., R. Co. v. Becker Milling Mach. Co., 272 F. (C. C. A.) 933-35; Lawrence v. Porter, 63 F. (C. C. A.) 62-64; M. & M. Transp. Co. v. Branch, 282 F. (C. C. A.) 494; Quanah, etc., R. Co. v. Novit, 199 S.W. 496; Texas, etc., R. Co. v. Payne, 38 S.W. 366; State ex rel. v. Parsons, 84 S.W. 1019; Cincinnati, etc., R. Co. v. Hansford, 100 S.W. 281; Turtle-Chapman Coal Co. v. Coaldale Fuel Co., 136 Iowa 382; Waters, et al. v. Becker, et al., 186 N.W. 167; Barry v. Los Angeles, etc., R. Co., 189 P. 70; Payne v. White House Lbr. Co., 231 S.W. 417; Kilpatrick v. Whitmer, 103 N.Y. 75; Chicago, etc., R. Co. v. Broe, 86 P. 44; State, to use, etc., v. Smith, 31 Mo. 566; Smith v. New York, etc., R. Co., 196 N.Y.S. 521; American Ry. Exp. Co. v. Parisian Hat Co., 240 S.W. 947; Wallace v. Vigus, 4 Blackford's Rep. 260.

The resale value at destination in same quantities is not the proper measure of recovery for failure to deliver a part of a carload shipment of merchandise to a wholesale dealer, since such resale value includes elements for which the carrier is not liable.

Curtrer & Smith, and W. T. Covington, Jr., for appellee.

The measure of damages is to be determined by the laws of the United States, and the decisions of the courts thereon. The most recent regulation of the measure of damages in cases of this character, is the Cummins Amendment to the Act to Regulate Commerce, chapter 176, Act of March, 4, 1915, 38 Stat. at L. 1196, U. S. Compiled Stat., sec. 8604a, 4 Fed. Stat. Anno. (2 ed.) 506.

The construction to be placed upon the words "full actual loss, damage or injury," will determine the measure of damages in this case. Since the enactment of the Cummins Amendment, the supreme court of the United States has had occasion to pass upon this question, and has specifically held in accordance with appellee's contention. McCaull-Dinsmore Co. v. Chicago, etc., R. Co., 253 U.S. 97, 64 L.Ed. 801.

In order to arrive at the "full actual loss, damage or injury," the rule of the common law must be applied, disassociated and disconnected from any decision existing prior to the Cummins Amendment, which was not strictly based upon the common law.

It is, therefore, elemental, under the facts in the case now before the court, that had the carrier performed its contract, appellee would have had five and five-eighths barrels of flour, worth sixty-three dollars and fifty-six cents, on February 9, 1921. This would be in conformity with the announcement of the supreme court, in the Dinsmore case, supra; "That the actual loss caused by breach of a contract, is the loss of what the contractee would have had if the contract had been performed," The carriers' common-law liability is the value of the goods at the point of destination, at the time they should have been delivered. McCaull-Dinsmore Co. v. Chicago, Milwaukee & St. Paul Railway Company, 252 F. 664; 260 F. 835; 253 U.S. 97 (64 L.Ed. 801); 10 C. J., secs. 606, 395.

Appellant, however, does not contend that this is not the law, but contends that the resale or retail value, more than compensates a consignee, who is a wholesale dealer, for his actual loss sustained by reason of failure to deliver all or part of a carload shipment.

In the case at bar, the facts must control. The actual loss, sustained by appellee, must be determined by the wholesale price of flour in Clarksdale. The cases cited by appellant deal with a situation where either the market value was not testified to or unable to be determined, or else, where the retail value was proven.

The circuit court of appeals for the Fourth Circuit, in the case of Norfolk & W. Ry. Co. v. Ft. Dearborn Coal & Export Co., 280 F. 264, held that the measure of damages for the confiscation of coal by the carrier, was the market value of the coal at the time and place of confiscation and not the cost of coal to the shipper.

The McCaull-Dinsmore case was again cited and discussed, in the case of Wabash Ry. Co. v. Holt, 263 F. 72, and there again the court held that the market value, at the time and place of delivery, is the test. See, also, Canadian Pac. Ry. Co. v. Wieland, 226 F. 670, 678, citing Hutchinson on Carriers, sec. 1360.

OPINION

HOLDEN, J.

This suit was brought by the Delta Grocery & Cotton Company to recover sixty-three dollars and fifty-six cents against the Yazoo & Mississippi Valley Railroad Company as damages for the loss of five and five-eighths barrels of flour shipped from Ft. Collins, Colo., to the Grocery Company at Clarksdale, Miss. From a peremptory judgment in favor of the plaintiff for that amount, the railroad company appeals.

The sole question presented is as to the proper measure of damages for the loss sustained. The exact point in controversy is whether the appellee, a wholesale grocer, is entitled to recover the replacement value of the damaged flour (that is, the invoice or cost price, plus the freight) or the resale value (that is, the price at which the flour could have been sold, or, we will say, the reasonable cash market value), at the point of destination, Clarksdale, Miss. If the measure of recovery is to be the value of the flour at Clarksdale, then the judgment for sixty-three dollars and fifty-six cents is correct; but, if the recovery is to be based upon the cost price or value at the point of shipment, or the...