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state the broad rules which govern in the more frequent actions against the carrier of goods. These are actions for the carrier's refusal to accept and transport the goods, actions for loss of, or injury to, the goods, and actions for delay in transporting the goods. In this connection it should be noted that in actions on contract the law is stricter in limiting the recovery to the natural, direct, and proximate damages resulting from the carrier's breach of duty. In general, too, the carrier of goods is liable only for compensatory, and not for punitive, damages. In other words, the general theory governing the award of damages is merely to compensate the plaintiff for the injury he has suffered, and not to go beyond this and give damages for the purpose of punishing the carrier or making such an example of him that he and other carriers will be less likely to sin again in that respect. Though punitive or exemplary damages are more usual in the case of passenger carriers, there are rare instances in which the courts feel justified in awarding such damages against the common carrier of goods.5 In general, though, the law contents itself in granting only such damages as are necessary to place the plaintiff in a position as advantageous as the one that he would have occupied, had the carrier completely performed his duty in the transportation of the goods.

SAME-ACTIONS FOR CARRIER'S REFUSAL TO ACCEPT AND TRANSPORT THE GOODS

159. The ordinary measure of damages, in an action against the carrier for his wrongful refusal to accept and transport the goods, is the difference between what would have been the value of the goods at the place where and the time when they should have been delivered and their value at the time and place of refusal, less the transportation charges.

53 This is borne out by the cases cited in the sections that follow. 54 Mills v. Southern Ry. Co., 90 S. C. 366, 73 S. E. 772. For discussion of the compensatory and punitive damages recoverable against the carrier by a husband for injuries to the dead body of his wife, see Wilson v. St. Louis & S. F. R. Co., 160 Mo. App. 649, 142 S. W. 775. Where, in an action for the loss of freight, reckless or willful disregard of consignee's rights or even indifference to them does not appear, but all the testimony tends to show a loss by theft from the carrier or some mistake, which after diligent effort it cannot account for, the carrier is not liable for punitive damages. MATHESON v. SOUTHERN RY. CO., 79 S. C. 155, 60 S. E. 437, Dobie Cas. Bailments and Carriers, 290. To entitle a shipper to punitive damages for delay in transportation, gross negligence, or willful or wanton disregard of its duty, on the part of the carrier, must be shown. American Exp. Co. v. Burke & McGuire (Miss.) 61 South. 312.

If another reasonable mode of conveying the goods can readily be procured after such refusal, then the measure of damages would be the increased cost of transportation by such other mode.

The primary object of transportation is to have the use of the goods or an opportunity to sell them at the place of destination. The damages for a wrongful refusal to transport goods is, therefore, the value to the shipper of his right of having them at the point of destination. For this right the shipper must be ready, of course, to pay the carrier's lawful charges. Ordinarily, then, the measure of damages for the carrier's wrongful refusal would be the difference between the value of the goods at the time and place of refusal and their value at the place of destination at the time they should have been delivered there, less the charges of transportation.55 Thus, suppose a carrier at Albany wrongfully refuses to accept and transport goods to Boston, the value of the goods at Albany at the time of refusal being $100, their value at Boston when they should have been delivered being $125, and the lawful charges for such a shipment being $5. Then it is clear that $20 will exactly cover the loss caused to the shipper by the carrier's unjustifiable refusal. The general duty, however, rests on a plaintiff to minimize the damages, at least in so far as this can be done without undue effort or trouble on his part. Hence he cannot recover damages for consequences that might clearly have been avoided by the exercise of reasonable diligence on his part. Therefore, if other suitable means of transportation may readily be had, and the circumstances are such that a reasonably prudent man would forward the goods by those means, then the damages recoverable would not exceed what he would suffer who does make use of such available means. In such cases, the damages would be the excess of the cost of such transportation over the lawful charges of the carrier wrongfully refusing to accept the goods, together with the damages resulting from the delay in securing such transportation. If the cost of transporting the goods by these other suitable means which the plaintiff either has adopted, or should have adopted, does not ex

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55 Pennsylvania R. Co. v. Titusville & P. P. R. Co., 71 Pa. 350; Galena & C. U. R. Co. v. Rae, 18 Ill. 488, 68 Am. Dec. 574; Harvey v. Connecticut & P. R. R. Co., 124 Mass. 421, 26 Am. Rep. 673; Bridgman v. The Emily, 18 Iowa, 509; Ward's Cent. & P. Lake Co. v. Elkins, 34 Mich. 439, 22 Am. Rep. 544; O'Conner v. Forster, 10 Watts (Pa.) 418; Inman v. St. Louis S. W. Ry. Co., 14 Tex. Civ. App. 39, 37 S. W. 37.

56 O'Conner v. Forster, 10 Watts (Pa.) 418; Ogden v. Marshall, 8 N. Y. 340, 59 Am. Dec. 497; Grund v. Pendergast, 58 Barb. (N. Y.) 216; Higginson v. Weld, 14 Gray (Mass.) 165; Crouch v. Railway Co., 11 Exch. (Eng.) 742.

ceed the charges which the carrier refusing might have exacted, then only nominal damages can be recovered, unless the plaintiff suffered damage due to the delay in securing such other means, when such delay is not attributable to his fault.

SAME-ACTIONS FOR TOTAL LOSS OR NONDELIVERY OF THE GOODS

160. The measure of damages in actions for total loss or nondelivery of the goods is the value of the goods at the time when and at the place where they should have been delivered, less any unpaid transportation charges.

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Obviously, the natural and probable consequences of a failure to deliver the goods at their destination is a loss to the owner, amounting to the value of the goods at that point, at the time when they should have been delivered, and such value is therefore the measure of damages. The plaintiff, though, can secure the transportation, or the beneficial damages worked out on the basis of the loss to him because the goods have not been so transported, only on the payment of the carrier's charges; hence any unpaid charges of the carrier must to that extent reduce the plaintiff's recovery. Ordinarily the value of the goods means their market value unless that is unduly and irregularly inflated or depressed. If the goods have no market price, then their value is usually held to be the value of the goods to the owner, taking into account such practical considerations as its cost and the expense of replacing it, but disregarding any pretium affectionis or fanciful and sentimental valuations.

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57 Mobile & M. Ry. Co. v. Jurey, 111 U. S. 584, 4 Sup. Ct. 566, 28 L. Ed. 527; Louisville & N. R. Co. v. Kelsey, 89 Ala. 287, 7 South. 648; Plaff v. Pacific Exp. Co., 251 Ill. 243, 95 N. E. 1089; Marshall Medicine Co. v. Chicago & A. R. Co., 126 Mo. App. 455, 104 S. W. 478; Brown v. North Western R. R., 75 S. C. 20, 54 S. E. 829; O'Hanlan v. Ry. Co., 6 Best & S. (Eng.) 484; Rodocanachi v. Milburn, 18 Q. B. Div. (Eng.) 67. Cf. Magnin v. Dinsmore, 56 N. Y. 168; Id., 62 N. Y. 35, 20 Am. Rep. 442; Id., 70 N. Y. 410, 26 Am. Rep. 608. See, also, Faulkner v. Hart, 82 N. Y. 413, 37 Am. Rep. 574; Spring v. Haskell, 4 Allen (Mass.) 112; Sangamon & M. R. Co. v. Henry, 14 Ill. 156. 58 See cases cited in preceding note; Wilson v. St. Louis & S. F. R. Co., 129 Mo. App. 347, 108 S. W. 612; Chesapeake & O. R. Co. v. F. W. Stock & Sons, 104 Va. 97, 51 S. E. 161.

59 See cases cited in note 57; Plaff v. Pacific Exp. Co., 251 Ill. 243, 95 N. E. 1089; MOBILE, J. & K. C. R. CO. v. ROBBINS COTTON CO., 94 Miss. 351, 48 South. 231, Dobie Cas. Bailments and Carriers, 286.

60 Lloyd v. Haugh & Keenan Storage & Transfer Co., 223 Pa. 148, 72 Atl 516, 21 L. R. A. (N. S.) 188; Pennsylvania R. Co. v. John Arda Co., 131 Ill.

SAME-ACTIONS FOR INJURY TO THE GOODS

161. The measure of damages for injury to goods in transit is the difference between the value of the goods at the time and place of delivery in their damaged condition and what their value would have been had they been duly delivered in good order, less any unpaid transportation charges.

When there is a total failure to deliver the goods, as we have just seen, the owner's loss is their real value when and where they should have been delivered. It is obvious that if the goods are delivered to the consignee, but in a damaged condition, the damage that would have been suffered from a total loss is diminished by an amount equal to the value of the damaged goods received, and the difference between this value and what the value would have been had the goods been delivered uninjured is the measure of damages, after the payment of any unpaid charges for the transportation.1

App. 426; International & G. N. Ry. Co. v. Nicholson, 61 Tex. 550; Mitchell v. Weir, 19 App. Div. 183, 45 N. Y. Supp. 1085; Cooney v. Pullman PalaceCar Co., 121 Ala. 368, 25 South. 712, 53 L. R. A. 690.

61 St. Louis Southwestern R. Co. v. Phoenix Cotton Oil Co., 88 Ark. 594, 115 S. W. 393; Reason v. Detroit, G. H. & M. Ry. Co., 150 Mich. 50, 113 N. W. 596; Ruddell v. Baltimore & O. R. Co., 152 Ill. App. 218; R. E. FUNSTEN DRIED FRUIT & NUT CO. v. TOLEDO, ST. L. & W. R. CO., 163 Mo. App. 426, 143 S. E. 839, Dobie Cas. Bailments and Carriers, 196; Notara v. Henderson, L. R. 7 Q. B. (Eng.) 225; Chicago, B. & Q. R. Co. v. Hale, 83 Ill. 360, 25 Am. Rep. 403; Brown v. Cunard S. S. Co., 147 Mass. 58, 16 N. E. 717; Louisville & N. R. Co. v. Mason, 11 Lea (Tenn.) 116; Magdeburg General Ins. Co. v. Paulson (D. C.) 29 Fed. 530; The Mangalore (D. C.) 23 Fed. 463. See Morrison v. I. & V. Florio S. S. Co. (D. C.) 36 Fed. 569, 571; The Compta, 5 Sawy. 137, Fed. Cas. No. 3,070. Where property is injured in transportation through the negligence of the carrier, but is not entirely worthless, the owner cannot refuse to accept it and sue for its market value, but may recover only for the injury. Missouri, K. & T. Ry. Co. of Texas v. Moore, 47 Tex. Civ. App. 531, 105 S. W. 532; McGRATH BROS. v. CHARLESTON & W. C. RY. CO., 91 S. C. 552, 75 S. E. 44, 42 L. R. A. (N. S.) 782, Ann. Cas. 1914A, 64, Dobie Cas. Bailments and Carriers, 288. The rule that, on injury to goods in transportation, the value at the destination is the basis for determining the damages, the measure being the difference between the value of the goods at destination as injured and their value if delivered in good order, also applies where goods are taken for transportation to a point beyond the initial carrier's line. Southern Exp. Co. v. Jacobs, 109 Va. 27, 63 S. E. 17. Where, in an action against a carrier for injuries to a shipment of potatoes, it appeared that the shipper had sold the potatoes for delivery at a distant point, that the buyer at the point of delivery, because of the damaged condition of the shipment, refused to accept the potatoes, but there was

Thus, butterine shipped to New Orleans was damaged in transit, through the carrier's negligence. On its arrival its market value in its damaged condition was 712 cents per pound, at which price. it was sold. Had it been in good order, its market value at New Orleans would have been 15 or 16 cents a pound. It was held that plaintiff was entitled to the difference between these prices. 62

SAME-ACTIONS FOR DELAY IN TRANSPORTATION OR DELIVERY OF THE GOODS

162. The measure of damages for delay in the transportation or delivery of the goods is the difference between the value of the goods at the time when and the place where they should have been delivered and their value at the time and place of actual delivery, less any unpaid transportation charges.

When, however, the value of the goods is not diminished by such delay, the measure of damages, after unpaid transportation charges are deducted, is the value of the use of the goods during the period of delay.

These rules indicate the normal measure of damages when the goods are delivered safely, but when, owing to the negligence of the carrier, the goods are not delivered at the proper time. Since the usual reason for shipping goods is to realize their value (after the payment of the carrier's charges) at the destination when they should have been delivered, the usual loss caused to the shipper by the delay is their value then less their value when they are ac

no evidence to show what the sound potatoes were sold for at the place of delivery, or that diligence had been used to secure their market price, the shipper's measure of damages was the difference between the total amount of the contract price of the whole shipment agreed to be paid by the buyer, less the freight charges paid by the shipper and the amount for which the sound potatoes, in the exercise of ordinary care to obtain on their delivery at the point of delivery the market price, were sold. Texarkana & Ft. S. R. Co. v. Shivel & Stewart (Tex. Civ. App.) 114 S. W. 196. In an action against a carrier for damages to peaches consigned to Boston or Springfield, evidence of the price paid for the peaches in the orchard or point of shipment one or two weeks before they were sold at destination, was properly excluded as too remote. Henry J. Perkins Co. v. American Exp. Co., 199 Mass. 561, 85 N. E. 895.

62 Western Mfg. Co. v. The Guiding Star (C. C.) 37 Fed. 641.

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