
    Wyler Ackerland & Company v. The Louisville & Nashville Railroad Company.
    
      Breach by a common carrier of obligation — To deliver merchandise in reasonable time — Shipper may recover as general damages— Decline in value of goods.
    
    In case of the breach by a common carrier of its obligation to deliver merchandise within a reasonable time, the shipper may recover as general damages, the decline in its market value between the times when it should have been and when it was delivered.
    (No. 12379
    Decided February 14, 1911.)
    Error to the Circuit Court of Hamilton county.
    Plaintiffs brought suit in the superior court of Cincinnati to recover damages resulting from the failure of the defendant to perform a contract for the carriage of merchandise delivered by the plaintiffs to it for shipment. Their petition alleged with much detail that on the third of March, 1906, they delivered to the defendant for transportation from Cincinnati, Ohio, to West Bend, Alabama, a case of clothing and advertising matter consigned to E. L. Long & Company, West Bend, the same being as the defendant well knew transported for the purpose of sale in market; that the defendant accepted the goods and undertook to carry them within a reasonable time to Mobile, Alabama, and there to deliver to the next connecting carrier, by which they should be transported to West Bend; that the defendant did not perform said contract but failed to deliver the goods at Mobile until the 18th of May, 1906; that if it had carried the goods without unreasonable delay they would have arrived at Mobile not later than the 25th of March, 1906; that owing to the unreasonable delay the consignee refused to receive the goods, whereupon they were returned by the carrier to the plaintiffs; that the decline in the value of the goods .between the dates when they should have been delivered and were delivered was $312, for which sum with interest from April 1, 1906, the plaintiffs ask judgment. To this petition the defendant filed a general demurrer. In the superior court the demurrer was sustained and a final judgment rendered dismissing the petition. That judgment was affirmed by the circuit court.
    
      Messrs. Moulinier, Bettman & Hunt, for plaintiffs in error.
    The petition states all facts necessary to constitute a cause of action against a common carrier for unreasonable and negligent delay in transportation. 6 Cyc., 515; Railway Co. v. Mudford, 44 Ark., 439; Raphael v. Pickford, 2 Dowl. Pr. C., N. S., 916.
    It is apparent that where the railroad company itself treats the consignor as the owner by returning the goods to him, and he accepts this treatment by crediting the carrier with the return of the g'oods, he has such an interest in the goods and cause of action as satisfies even those authorities that do not permit the consignor, qua consignor only, to sue. Railway Co. v. Guano Co., 103 Ga., 590.
    
      As regards the allegations of the delivery of the goods to the carrier, and the acceptance of them for transportation by,the carrier as a common carrier for hire, the petition is full and clear and can not cause and has not caused any contention. Railroad. Co. v. O’Donnell, 49 Ohio St., 489.
    Where, as in the case at bar, the negligent delay occurred on the line of the initial carrier, and the initial carrier, is sued, the damages are calculated by taking the difference between the two market values at destination, though the destination is on the line of the connecting carrier. Railway Co. v. Truskett, 104 Fed. Rep., 728; Railroad Co., v. Curtis, 80 Ill., 324; Ruppel v. Railway Co., 167 Pa. St., 166.
    The defendant contends that the petition shows on its face that the damage claimed is the result of a loss of market value due to the fact that the goods were designated to reach destination at a time of favorable market season; that such damage is not a direct and ordinary and general damage, but is in the nature of special damages, for which the carrier cannot be held liable unless it be given notice of such special circumstances.
    The defendant fails to distinguish between this general damages, always due to a change in market conditions, and the various forms of special damages due to circumstances special to each case. The distinction is clearly brought out in the recent case of Railroad Co. v. Canning Co., 116 S. W. Rep., 758.
    For further authority to the effect that depreciation in value due to loss of market is the regular general element of damage, independent of notice or knowledge: Cutting v. Railway Co., 13 Allen, 381; Railroad Co. v. Ragsdale, 46 Miss., 458; Railroad Co. v. Diffendal, 72 Atl. Rep., 193.
    
      Mr. Ellis G. Kinkead and Mr. H. K. Rogers, for defendant in error.
    The rule under which this case falls is the old one established by the leading case of Hadley v. Baxendale, 9 Exch., 341, frequently followed and affirmed in this state. It is, that when a contract is made under special circumstances, if those circumstances are communicated, the amount of the special injury which would ordinarily follow a breach of contract may be recovered as special damages that may reasonably be expected to result from such breach.
    In the case at bar there is no allegation of any damages other than those suffered from the fact that the goods' were of a special character such that they could be sold in a special market, neither the fact of the special character of the goods nor their destination for a particular market being communicated to the carrier. As a matter of fact, it is evident that for general purposes and for sale in general market it is not alleged that the goods deteriorated in any element of value because of the delay .alleged in the petition.
    It is difficult to see how in the absence of knowledge of the special circumstances alleged in the petition, the carrier could be presumed to know intuitively those special circumstances and to have rendered the kind of transportation service proper under the special circumstances not communicated to it. Ice Mfg. Co. v. Iron Works Co., 68 Ohio St., 229; Goodin & Goodin v. Railway Co., 125 Ga., 630; Devereux v. Buckley, 34 Ohio St., 16; Railway Co. v. Pettit & Kilgore, 3 Tex. Civ. App., 588.
    The case at bar is strongly analogous to those in which railroad companies were given scenery and goods of theatrical companies. Railroad Co. v. Byrne, 205 Ill., 22; Brown v. Weir, 88 N. Y. Supp., 479; Weston v. Railroad Co., 190 Mass., 298.
   Shauck, J.

The petition distinctly alleges that at the date named the plaintiff delivered merchandise to the defendant for carriage by it to Mobile; its acceptance for that purpose by the carrier; its undertaking to deliver the merchandise at Mobile within a reasonable time and the circumstances from which the law would infer that undertaking, a breach of its obligation by the carrier and the general damages resulting from such breach, being the decline in the market value of the merchandise between the date when the contract required it to be delivered and that of its actual delivery.

We are not favored with the opinion of either of the courts below, and we assume that the brief of counsel for the defendant presents the view which conducted them to the conclusion that the petition does not state a cause of action. That view is an elaboration, partly correct and partly erroneous, of the doctrine of Hadley v. Baxendale, 9 Exch., 341. That case is of admitted authority in this state, as frdm the clearness and force of its reasoning it deserves to be. It was there decided that the profits o£ a business, whose prosecution was suspended by the failure of the carrier to deliver a shaft within a reasonable time, could not be recovered because it could not be reasonably supposed that they were in contemplation of the parties at the time of making' the contract of carriage as the probable result of the breach of it. It was not decided, as it has been by the courts below in the present case, that general damages may not be recovered for such breach. That the loss incurred by the plaintiff, according to the allegations of the petition may be recovered as general damages, is held in Railroad Co. v. O’Donnell, 49 Ohio St., 489. To say that it may not be is to deny the legal character of the carrier’s obligation.

Judgments reversed.

Spear, C. J., Davis, Price, Johnson and Donai-iue, JJ., concur.  