Baltimore & Ohio Railroad v. Pumphrey , 59 Md. 390 ( 1883 )

Stone, J.,

delivered the opinion of the Court.

This action was brought by the plaintiff against the defendant, a common carrier, for the breach of a contract. The declaration states that the defendant undertook to carry-, for hire, certain goods of the plaintiff from the city-of St. Louis, and deliver the same to him in the city o Baltimore, and alleges as the breach of the contract, that the defendant wantonly, negligently and maliciously refused to deliver to him the same, and that thereby the plaintiff was not only deprived of said goods, but that his business was by such refusal seriously injured. The foundation of the action was a contract made between the plaintiff and defendant, and the breach of that contract on the part of defendant. The suit was brought for a wrong, dependent upon a contract, and the first question we have to decide is, what is the true measure of damages in such a case. It makes no difference whether the form of the action is ex delicto or ex contractu, the real and substantial gravamen of the complaint is the alleged breach of the contract, and in such a case the same law is applicable to both classes of action. In actions like the present, against common carriers, the suit may be framed, either ex contractu, upon the breach of the engagement, or ex delicto, upon the violation of the public duty; but whether the action be assumpsit on the contract, or case for the violation of duty, the measure of damages is equally a question of law, and as much under the control of the Court as if the right rested in agreement merely.

There are many actions nominally in tort, which, in respect to the measure of relief, are treated as virtually ex contractu, and in these cases a fixed rule of damages is adhered to. 2 Addison on Torts, (7th Ed.,) 355 and 454.

The true measure of damages in a case like the present, has been settled by this Court in more than one case. In the case of U. S. Telegraph Co. vs. Gildersleve, 29 Md., 232, the Court says: “Lastly, as to the measure of damages, if there be a breach of the contract. This is a subject about which there has been a considerable diversity of opinion, and great want of precision in the attempt to define rules of general application. But by the latest and best considered cases upon the subject, the rule seems to be now pretty well established, that a party can only be held responsible for such consequences as may be reasonably supposed to have been in the contemplation of both parties at the time of making the contract, and that no consequence, which is not the necessary or ordinary result of a breach, can be supposed to be contemplated, unless full information be'imparted to the party sought to be held liable at the time of entering into the engagement.” The Court in the same opinion, quote and adopt the opinion in Hadly vs. Boxendale, 9 Exch., 341, in which the Court said: “We think, the proper rule in such a case as the present is this—where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect to such breach of contract should be, either such as may be fairly and substantially considered as arising naturally, i. e. according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it.” This latter case is also adopted by this Court in the case of The Camden Consolidated Oil Co., vs. Schlens & Co., supra page 31. It is equally well settled that as a general rule the measure of the damages in such cases is the value of the goods at the place of their destination, with compensation for the actual loss which is the natural and proximate consequence of the act, and excluding remote or indirect losses. 2 Sedgwick, 356.

The cases of Brown & Otto vs. Werner, 40 Md., 15, and Shaffer vs. Wilson, 44 Md., 268, are not in conflict with the cases before cited. These latter cases were for torts entirely, independent of contract, and the damages allowed were the immediate and direct consequences of the defendants’ wrongful act. The interruption and injury to the trade and business of the plaintiff was the necessary and immediate consequence of the wrongful act of the defendants by their damage done to the house in which the business was carried on.

In those cases there was no contract and consequently no breach of contract whatever. In the present case the rule is different, and the true measure of damages was the value of the goods in Baltimore on the 21st of Aug., 1880, with interest thereon, with a reasonable compensation for any expense, (if any,) which was the natural and proximate consequences of the act, excluding remote or indirect losses.

The loss sustained by the plaintiff in his general business, does not come under this rule. To be responsible for any such consequences was no part of the contract in this case, and was not for a moment contemplated by the defendants when they undertook to transport the goods from St. Louis to Baltimore.

These special circumstances now set up and relied on by the plaintiff, were wholly unknown to the defendants at the time of the contract, and it would be unjust now to hold them responsible for consequences never contemplated by them. Had the special circumstances been disclosed, the parties might 'have expressly provided for the breach of contract by special terms as to the damages in that case, and of this advantage it would be very unjust to deprive the defendants.

It follows from what we have said that the Court below was in error, in admitting the evidence excepted to, in defendants’ bill of exceptions, and also in granting the second prayer of the plaintiff.

The other question arising in this case, was the right of the defendants to refuse to deliver the goods on the 21st of August, 1880.

Common carriers deliver property at their peril, for if delivery be to a wrong person they will be responsible to the rightful owner.

It is their duty, therefore, in all cases to be diligent in their efforts to secure a delivery to the person entitled, and they will be protected in refusing delivery, until reasonable evidence is furnished them that the party claiming, is the party entitled, so long as they act in good faith, and solely with a view to a proper delivery; but it is their duty in all cases to be diligent in their efforts to secure a delivery to the person entitled. McEntee vs. N. J. Steamboat Co., 45 N. Y., 34.

In this case the mark upon the goods differing from the way-bill, justified the defendants in exercising caution, and it was a proper question to have been submitted to the jury, whether the refusal was qualified as alleged by the defendants; and if so, whether the delay in the delivery was reasonable, and caused solely by the difficulty in identifying the goods. These two facts, good faith and due diligence were questions for the jury. We think these questions were substantially submitted to the jury by the tenth prayer of the defendants, which was granted by the Court.

(Decided 14th February, 1883.)

The defendants gave testimony tending to prove that as soon as the telegram was received from St. Louis, on 23rd of August, they notified the plaintiff, that he could get the goods, and that the goods were then in good order.

The plaintiff on the other hand, offered evidence tending to prove that he did not receive notice that he could get the goods until 26th or 27th of August, and that the goods were not then in a good condition.

In this state of the proof the jury, as they had the undoubted right to do, found a verdict ior the plaintiff. This verdict we are not disposed to disturb, notwithstanding the erroneous instruction given to tbe jury by the granting of the second prayer of the plaintiff, as it is apparent from the record, that the defendants wére not thereby injured. It is very apparent from tbe verdict itself that the jury did not take into consideration, in assessing the damages, any injury to the business of the plaintiff, but only gave what they considered the actual value of the goods, in Baltimore, with expenses and interest. They had before them the cost of the goods in St. Louis And adding thereto, freight, interest, and a small sum foyche difference in the price of the goods between St. Louis and Baltimore, will make the amount of their verdict.

Judgment affirmed.