Yazoo & M.V.R. Co. v. Christmas

• Decision Date: 12 November 1906
• Citation: 42 So. 169,89 Miss. 686
• Parties: YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. EDWARD CHRISTMAS
• Court: Mississippi Supreme Court

42 So. 169

89 Miss. 686

YAZOO & MISSISSIPPI VALLEY RAILROAD COMPANY v. EDWARD CHRISTMAS

Supreme Court of Mississippi

November 12, 1906

FROM the circuit court of Warren county, HON. JOHN N. BUSH, Judge.

Christmas the appellee, was the plaintiff, in the court below, and the railroad company, the appellant, was defendant there. From a judgment in favor of plaintiff the railroad company appealed to the supreme court.

Plaintiff's suit was for recovery of damages resulting from delay in the transportation of certain machinery, accepted by the defendant under its bill of lading at Mound Bayou, Miss. for shipment to Delta Point, Louisiana. The declaration alleged that the delay was caused by the wilful negligence of the defendant's freight agent at the point of shipment, in consigning the machinery to a wrong destination, as a result of which sixty days elapsed from the acceptance of the machinery by defendant before it was delivered to plaintiff. The opinion further states the facts of the case.

Reversed and remanded.

Mayes &amp Longstreet, and C. N. Burch, for appellant.

It will be apparent to the court that the delay in this case was caused by a mistake on the part of the agent of the defendant company at Mound Bayou. The destination of the shipment was in another state and on another line of railroad. Defendant's agent at Mound Bayou, through mistake, wrote in the bill of lading the name of "Delhi," instead of "Delta Point," Delhi being a station on the line of the Vicksburg, Shreveport & Pacific Railway, some distance from Delta Point. When the shipment was delivered to the Vicksburg, Shreveport & Pacific Railway under a bill of lading calling for transportation to Delhi, that carrier very properly transported the shipment to the point named in the bill of lading. For such mistake the appellant is, of course responsible. But the Vicksburg, Shreveport & Pacific Railway certainly had a right to make charge against some one for the transportation of the shipment to Delhi and back again to appellant's line of railroad. The ultimate liability would be upon appellant, and the appellee, Christmas, if compelled to pay out anything to the Vicksburg, Shreveport &amp Pacific Railway Company, had the right to recover the same from appellant. The measure of damages under such circumstances should be the amount of any excess charges he might have had to pay, if these charges could not have been reduced, plus his special damages, if any, as a direct consequence of the delay. No such special, peculiar or exceptional damages as those claimed by appellee, and by the court below allowed to be shown in evidence, can be recovered in the absence of notice of such exceptional consequences to the carrier at the time of the delivery of the shipment to it, or at the time the contract of affreightment was made. "Where the proximate result of the delay is the loss of the use of the goods, as, for instance, where the goods consisted of machinery, the measure of damages is the value of the use during the time of detention; that is in general the rental value." 6 Ency. of Law and Procedure, 449; Priestly v. Railroad Co., 79 Am. Dec., 369; Texas Railroad Co. v. Hassell, 58 S.W. 654; Railroad Co. v. Gilbert, 22 S.W. 760.

Our own courts uphold the proposition above set forth. Railroad Co. v. Ragsdale, 46 Miss. 458; Illinois, etc., Railroad Co. v. Brookhaven Machine Co., 71 Miss. 663 (S.C., 16 So. 252); Silver v. Kent, 60 Miss. 129; American Express Co. v. Jennings, 86 Miss. 329 (S.C., 38 So. 347).

If the appellant in this case is to be charged with all the delay which might be termed "unreasonable" the period would not exceed, approximately, twenty days, and these days would cover a period when, had the appellee been in charge of the machinery, he would have put it to little use. Appellee delivered this machinery to appellant August 18; he testified that five days would have been ample time for it to have reached Delta Point from Delhi. It reached its correct destination September 21; on the next day, or second day, he received notice thereof, and went down and found the machinery awaiting him. As a rule, ginning does not begin until the last of August or first of September; consequently, if the shipment had been transported with due diligence, it is improbable, under the evidence, whether appellee could have had the machinery in operation before the middle of September.

Even if the delay amounted to twenty, or even thirty, days, then, according to appellee's own testimony, the recovery in this case should not have been one- half of the amount allowed by the jury. For appellee testified that at the season of the year when the delay occurred the "usable" value of his gin, completed and in operation, was about $ 10 a day. If there had been a delay of thirty days caused by the mistake his recovery should not have exceeded, in any event, $ 300. It thus appears, since the verdict was for $ 600, that, in so far as compensatory damages go, the judgment exceeded what should have been due by 100 per centum.

All through the proof offered for appellee runs the grave error of testimony seeking to establish against appellant liability for items which have been more than once expressly disallowed by this court; as, for example, items of expense incurred by the appellee in going to Mound Bayou on a trip of investigation, the value of his time, expense of trips to Delta Point to ascertain if the machinery had arrived and whether the excess demanded by him on account of the wrongful transportation to and from Delhi had been credited; the expense of his board, use of horses and teams, and value of his time and of the time of men whom he had carried with him on the above-mentioned trips. American Express Co. v. Jennings, 86 Miss. 330 (S.C., 38 So. 347), and cases there cited.

It was the duty of the appellee, Christmas, to have paid to the Vicksburg, Shreveport & Pacific Railway Co. the charges required by that company, amounting to $ 17.50 on account of the shipment of the machinery from Delta Point to Delhi and return. Appellee has never declared that he was unable to do so. Such action would have reduced his damages. And for the amount so advanced by him he could and would easily have recovered from appellant. Yet, while the above proposition is unquestionably sound under the law, the court below refused to instruct the jury that he should have paid these charges. On the contrary, the court, in the instructions granted to the plaintiff, expressly charged the jury that Christmas was not bound to pay the overcharge in freight demanded of him for the reshipment of his freight from Delhi to Delta Point. What was the consequence of such refusal to pay this overcharge on the part of appellee? He allowed the machinery to remain at Delta Point after it had been returned from Delhi, from September 21 until October 15, on the flimsy pretext that he would not take it until the Vicksburg, Shreveport and Pacific Railway Company had wholly released the claim for overcharge. The delay from September 21 until October 15 was attributable to plaintiff's refusal to perform his duties under the law and to pay the trifling sum of $ 17.50. As the value of his machinery to him, according to his testimony, would have been $ 10 a day, his action in undergoing a delay from September 21 to October 15, to save $ 17.50, was in law unwise, and must result to his own loss.

It was error in the court below to give the second, third and fifth instructions for the appellee. The second instruction was to the effect that if the jury believed from the evidence that the machinery was delayed in transportation from Mound Bayou to Delta Point, "and that because of the negligence of the defendant railroad company the said shipment was unreasonably delayed in its transportation and delivery, the jury shall find for the plaintiff and assess damages." This instruction imperatively directed the jury to "assess damages," if the jury should determine that the shipment was unreasonably delayed. It contained no limitation as to the character and extent of the damages to be allowed; nor any statement that the jury should allow damages only if the delay injured the plaintiff. There was no statement in the instruction that only nominal damages should be allowed if the unreasonable delay caused no actual damage. Nothing is said therein to the effect that the jury should assess only such damages as may have been warranted by the evidence, nor that the jury should confine any award to compensatory damages. The instruction was almost a peremptory charge to assess damages, without any proper limitation on the award.

The third instruction told the jury that Christmas was not bound to pay the overcharge in freight demanded of him, but that he had the right to demand and receive his property at Delta Point upon the payment of the proper freight rate from Mound Bayou to Delta Point. As herein above stated, it was obligatory on the appellee to reduce his damages, and to such end he should have paid the overcharge in freight.

The fifth instruction told the jury that they were warranted in assessing punitive damages. There is absolutely no testimony in this case to warrant such an instruction. The whole trouble grew out of the mistake of the agent in writing the name of one station for another of almost similar name. There was no wrong or oppression. It is true that the appellee in his declaration made the necessary averment for recovery of punitive damages; but the facts in evidence do not sustain the declaration. The rule warranting the imposition of damages in cases similar to the case at bar is clearly stated in Silver v. Kent, 60 Miss. supra, 124, approved in Express Co. v. Jennings, 86 Miss. supra. Under the facts in evidence this...