Parish & Co. v. Yazoo & Mississippi Valley Railroad

1. Evidence. Market value. Carriers. Delay of freight. Measure of damages. Statute of fraud. Failure to furnish cars. Excuse. The “market value” of a commodity, in its last analysis means the price which it will bring in cash from the buyer who is willing to pay its value, and the fact that staple cotton is not quoted upon cotton exchanges does not prevent it from having a market value, which can be shown in an action for damages. 2. Carriers. Delay of shipment. Measure of damages. Where a carrier by negligently delaying the shipment of cotton caused the loss of the sale of the cotton, the actual loss to the consignor is the measure of damages in a suit by him against the carrier. 3. Same. In such case the fact that there was no written contract between the seller and the buyer of the cotton, cannot be availed of by the carrier to avoid liability for its negligence as the .pleading of the statute of frauds was a privilege personal to the purchaser. 4. CarkiebsI Failure to furnish cars. Delay. Excuse. A delay of six days by a carrier to furnish cars for the shipment of goods is not excused by the fact that the city had dug a ditch three or four feet wide and six to eight feet deep under its spur track, it not being shown that the railroad could not have easily braced its tracks.

Appeal from the circuit'court of Tallahatchie county. Hon. N. A. Taylor, Judge. . Suit by S. B. P. Parish under name of Parish Company against the Yazoo & Mississippi Valley Railroad Company. Prom a judgment for nominal damages for plaintiff, he appeals. The facts are fully stated in the opinion of the court. Under the facts of this case, appellant was entitled to recover the loss of the profits caused by the breach of his contract of sale.. A common carrier is bound to provide sufficient facilities for the reasonably prompt transportation of goods tendered for carriage, and is liable for a failure to transport promptly, whether the failure is due to a want of facilities or to a captious refusal to carry. Y. & M. V. R. R. Co. v. Blum Co., 88 Miss. 180, 40 So. 748; 89 Miss. 242, 42 So. 282. The damages for which a carrier is liable for refusal to receive property for transportation includes reasonable profits that could have been earned in the shipper’s business, of which he has been deprived by inability to' secure transportation; also loss of the benefits of a contract which the shipper wasmndertaking to perform by shipment of the goods in question. 6 Cye. 375. The damages for failure to furnish cars to ship property in fulfillment of a contract; are the profits which the shipper would have made on the contract if the cars had been furnished; and a carrier’s knowledge of the shipper’s contract is not necessary in order to make it liable for failure to furnish cars when demanded in order to make shipments to fill the contract. “Insofar as there is no difference in respect to damages between cases of contract and tort, the measure for a breach of a contract is the more restricted, ” quoting 43 L R. A. 232, from the opinion of the court. Railway Co. v. Campbell, 91 Tex. 551, 43 L. R. A. 225. We think the proof shows that this cotton is what is known as “staple cotton” — cotton of a quality that has no definite, market value, and therefore the measure of appellant’s damages would not be governed by the ordinary rule as to the differences between market values. We believe that under the facts as shown by the record in this case, appellant was entitled to recover not on the difference between the price paid by him for the cotton and the price he would have realized under his contract of sale had the contract not failed, but also the difference between the price he paid for the cotton and the price at which he was forced to sell after the failure of his said contract. We submit that the record shows that appellee was guilty of willful and gross negligence in permitting its tracks to be rendered impassable and useless, and to remain so from the 3rd day until the 10th day of January, a week, during all of which time appellant was importuning its duly authorized agents to have the breach in the track closed and the cars which had been promised appellant by the appellee’s agent, Smith, on January 3rd furnished for the transportation of this cotton; on the faith of which promise, appellant purchased the cotton, expecting to resell it at a profit. We think appellee’s conduct shows a willful, wanton and reckless disregard of not only appellant’s rights, but of the rights of the general public engaged in the shipping of cotton from the town of Charleston. We believe it to be a fair deduction from the testimony in this case that appellee, by the exercise of ordinary care and effort, could, even after the ditch had been dug under the right of way, have made its track safe for the passage of ears and for the transportation of all freight that might have been tendered it for carriage at the farmers warehouse. Res ipsa loquitur. If this ditch had been dug under appellee’s right of way at any point on its main line between Clarksdale and Jackson, how long would its track have been permitted to remain in such condition as to obstruct the passage of trains? May a railroad company, a common carrier, sit quiescent and impassive and see its track undermined, its approach to a public warehouse, where it holds itself out for the receipt of freight, cut off, and for a week, over the urgent protest of a shipper entitled to the service of its road, ears and trains, do nothing to restore the several lines of commerce? May it thus act, and hope to be acquitted of the charge of willful and gross negligence and recklessness? • The declaration in this case expressly charges willful and gross negligence and recklessness, and we think the charge is amply sustained by the evidence. . Where a common carrier wantonly and in gross neglect of its duties as a common carrier, and in reckless disregard of a shipper’s rights, willfully refuses to accept and transport freight tendered it for carriage, it is liable not only for compensatory, but for exemplary damages; and in such case, a plaintiff may recover for actual, though remote, losses sustained. Silver v. Kent, 60 Miss. 124., We submit that under the facts as disclosed by the evidence in this case, appellant, plaintiff in the court. below, was entitled to have his ease submitted to the jury under proper instructions; and that in cutting off such right by giving the defendant an instruction directing the jury that they could find no damages for plaintiff except nominal damages, and in refusing plaintiff’s motion for a new trial, the learned judge committed reversible error. Counsel for appellant cite the case of Y. & M. V. R. R. Co. v. Blum,,'88 Miss. 180 and 89 Miss. 224, as supporting their contention, but we utterly fail to see the application, of these authorities. The above eases simply announce universal law controlling railroads, and hold that railroad companies are liable for the failure to provide ordinary equipment for transportation under normal conditions. No question involved in this case is akin to the question involved in the above cases. Counsel for appellant again cite 6 Cyc. 375 to the effect that when a carrier refuses to receive property for transportation, the shipper may recover as damages reasonable profits. And the loss of the benefits of the contract which a shipper was undertaking to carry out. This statement of Cyc. in the text seems to be unsupported by any authority, except one Kentucky case; but let us concede, for the sake of argument, that the text of Cyc. is correct, then what have we? There was no refusal on the part of appellee to receive for transportation the cotton in question. The city had made it impossible to use the switch leading to the warehouse, where the cotton was stored, for shipment. But let us go further. It is not shown that there would have been any profits in this transaction. This is left entirely to speculation. If the cotton had reached Charleston and Ellio had delivered it to the proposed buyer, and if this proposed buyer had stuck to his proposition, there might have .been profits of a small nature; but all this is a matter of the purest speculation, and on such basis, no law allows a right to damages to be built up. There was no contract in this case that could be breached and no suit to be maintained on that account. The only possible predicate of this suit lay in the fact that it could be claimed that appellee did not perform its duty as a common carrier. If this be conceded, and we deny that it is so, there was no willfulness attached to the failure, and, therefore, no element of punitive damages. Mr. Parish knew when he demanded the placing of the cars at the warehouse that it could not be done; he knew that the condition of the track would prevent its being done; and he knew that it made no difference how often, or how violently lie made the demand, the railroad company could not comply. This condition appertained before he thought of buying and selling any cotton, and he knew it, or he would not have been so active as he was. The railroad was constructed for that kind of business, and would have complied, if it could. The profits which he claims he could have made were not predicated of any legal rights he had, but were based on his faith in the promise of the party to take the cotton at Greenwood. We all know how often human promises fail us. We are confident that this court will find that it will have to affirm the judgment of the court below.