Yazoo & Mississippi Valley Railroad v. Fisher Bros. , 102 Miss. 702 ( 1912 )

Reed, J.,

delivered the opinion of the court.

Appellees brought suit against appellant for damages sustained by reason of the'failure of appellant to furnish railroad cars after being duly requested. The first count was for the delayage charge of one dollar per day provided in rule 9 of the Mississippi Railroad Commission, fixed on June 8, 1904; the second count was for actual damages by reason of the delay in furnishing the cars. The fourth plea filed by appellant presented the defense that the railroad commission, in fixing the delay-age charge of one dollar per day on" each car not furnished, provided an exclusive remedy, and that no other compensation could be claimed in such cases. The court sustained a demurrer to this plea.

After appellees had rested their case, appellant moved the court to compel appellees to elect whether they would claim under the delayage rule or for actual damages. Appellees refused to elect, and the court would not compel them to do so at that time. Appellant renewed the motion to compel appellees to elect when appellant had introduced all of its testimony. The court, when the instructions had been presented for approval, and the first two instructions given for appellees, refused to give appellees’ instruction touching the right to recover the delayage, and thereby required appellees to elect, which appellees had practically done in presenting their first two instructions, relative to their right to recover actual or special damages sustained in the case. Appellant complains of the trial court for refusing to require appellees to make an election of one of the two claims for damages presented in the declaration at an earlier stage of the trial of the case.

A careful review of the proceedings in this case presented by the record does not convince us that appellant was in any way injured, or that a fair trial of - its case was interfered with, by reason of the delay by the court in requiring the election in this case. Only one issue was presented to the jury when the case was given to them. The testimony introduced was such as might be properly considered upon the trial of an issue made up from either count of the declaration. It is true that the railroad commission has provided an amount which should be paid as delayage charges to the shipper, when the railroad company fails to comply with the requirements relative to the furnishing of cars. We do not discuss this rule, because it has been fully approved by this court in former decisions, and it is decided to' be neither unreasonable nor in any way violative of the Constitution of the state.

The fixing of the delayage charges in this rule, however, will not deprive the shipper of his right to damages-under the common law, which he has sustained by reason of the railroad company’s failure to comply with the-reasonable requirements of this rule, and also its duty as a common carrier in furnishing cars upon request-We note the contention in the brief for appellant that-the rule afforded by the railroad commission is the sole- and reasonable compensation in such cases, and the quotations in the brief from the opinion in the case of Keystone Lumber Co. v. Yazoo & M. V. R. R. Co., 97 Miss. 433, 53 South. 8. We do not understand that that case limits-the shipper to the recovery of only the amount fixed by the railroad commission in the rule, nor should the conclusion be drawn from that case that the shipper is deprived of his right to recover such actual damages as he may sustain by reason of the failure of the railroad com pany to furnish cars.

Under the subject of liability of a common carrier for delay in transportation, it is said in Sutherland on Damages, p. 2711, that “the plaintiff is entitled to recover for damages naturally following under circumstances known to both parties when the contract was made. If the special circumstances under which it was actually made were communicated by the plaintiff to the defendant, and thus known to both, the damages resulting from the breach are those ‘which they might reasonably contemplate would be the amount of injury which would ordinarily follow therefrom under the circumstances so known and communicated.” It is also said by the same writer that “whenever either the object of the sender is specially brought to the notice of the carrier, or circumstances are known to him from which the object 'Ought in reason to be inferred, so that it may be taken to have been within the contemplation of both parties, damages may be recovered for the natural consequences of the failure of that object.-” There can be no question ns to appellees’ right to recover proper damages as -claimed in the second count of the declaration. It seems that this was really conceded by appellant when it asked that appellees be required to elect.

It is contended by appellant that the damages were special, and that the special circumstances under which the damages resulted were not communicated to its agent, and that he had no notice or knowledge thereof, citing the case of Express Co. v. Jennings, 86 Miss. 329, 38 South. 374. We think that appellant’s agent had full knowledge, special and general, of the entire matter. Besides, we find this point fully presented in the instructions, and it was a question of fact which was determined by the jury. Appellant, as a common carrier, is liable to appellees for such actual damages as were sustained by reason of any failure or default on its part to deliver the cars as requested. We do not find the rules relative to damages, so clearly stated in the case of Vicksburg & M. R. R. Co. v. Ragsdale, 46 Miss. 459, have been changed. It is announced in that case that ‘ ‘ the cardinal principle in reference to damages is that the party in default shall make full and complete satisfaction.” The damages claimed in this case are such as may fairly and reasonably be considered as resulting from - the appellant’s failure to furnish the cars.

Affirmed.