{ "id": 1388521, "name": "St. Louis Southwestern Railway Company v. Tucker", "name_abbreviation": "St. Louis Southwestern Railway Co. v. Tucker", "decision_date": "1923-11-19", "docket_number": "", "first_page": "140", "last_page": "144", "citations": [ { "type": "official", "cite": "161 Ark. 140" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "154 Ark. 440", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1361211 ], "opinion_index": -1, "case_paths": [ "/ark/154/0440-01" ] }, { "cite": "133 Ark. 196", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1575118 ], "opinion_index": -1, "case_paths": [ "/ark/133/0196-01" ] }, { "cite": "130 Ark. 291", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719766 ], "opinion_index": -1, "case_paths": [ "/ark/130/0291-01" ] }, { "cite": "120 Ark. 119", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1561029 ], "opinion_index": -1, "case_paths": [ "/ark/120/0119-01" ] }, { "cite": "134 Ark. 430", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1573292 ], "opinion_index": -1, "case_paths": [ "/ark/134/0430-01" ] }, { "cite": "120 Ark. 264", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1561108 ], "opinion_index": -1, "case_paths": [ "/ark/120/0264-01" ] }, { "cite": "101 Ark. 172", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1311109 ], "opinion_index": -1, "case_paths": [ "/ark/101/0172-01" ] }, { "cite": "111 Ark. 521", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1540394 ], "opinion_index": -1, "case_paths": [ "/ark/111/0521-01" ] }, { "cite": "110 Ark. 49", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1337114 ], "opinion_index": -1, "case_paths": [ "/ark/110/0049-01" ] }, { "cite": "89 Ark. 518", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1515277 ], "opinion_index": -1, "case_paths": [ "/ark/89/0518-01" ] }, { "cite": "76 Ark. 542", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1501112 ], "opinion_index": -1, "case_paths": [ "/ark/76/0542-01" ] }, { "cite": "88 Ark. 594", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1517163 ], "opinion_index": -1, "case_paths": [ "/ark/88/0594-01" ] }, { "cite": "146 Ala. 412", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 3548427 ], "opinion_index": 0, "case_paths": [ "/ala/146/0412-01" ] }, { "cite": "118 Ark. 277", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1562521 ], "opinion_index": 0, "case_paths": [ "/ark/118/0277-01" ] }, { "cite": "174 S. W. 1167", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "117 Ark. 163", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1564946 ], "opinion_index": 0, "case_paths": [ "/ark/117/0163-01" ] }, { "cite": "120 Ark. 119", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1561029 ], "opinion_index": 0, "case_paths": [ "/ark/120/0119-01" ] } ], "analysis": { "cardinality": 427, "char_count": 7901, "ocr_confidence": 0.483, "pagerank": { "raw": 9.66217029417753e-08, "percentile": 0.5286240626384009 }, "sha256": "b42028742f44df7d8da2fb21b76c0d7cd33357b2cfa99e1375d2a5d4356472bb", "simhash": "1:0b3e4cf30847d215", "word_count": 1402 }, "last_updated": "2023-07-14T20:04:40.179276+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "St. Louis Southwestern Railway Company v. Tucker." ], "opinions": [ { "text": "Smith, J.\nThe plaintiff in this case alleged that he shipped eight show-cases over the defendant railroad, and that \u201csaid show-cases were so badly damaged and broken when delivered that it cost plaintiff, on account of such damage and breaking, to repair the same, in actual cash the sum of $273.35, to his damage in that amount,\u201d wherefore he prayed judgment in that amount.\nThe show-cases were second-hand, and plaintiff testified that he bought them at a bargain, and that he paid $442 for them and $100 freight,' and that he \u201cfigured their value at $750,\u201d and in answer to a question from his attorney he stated the market value of the cases to be $750.\nAfter describing the manner in which the cases were broken, the witness proceeded to relate how he had repaired them, and that the cost thereof had been $273.35, whereupon counsel for the railroad objected to this answer, because \u201c (1), there was no legal damage alleged in the complaint, and (2), because that would not be the measure of damage under the law, the true damage being the difference between the market value of the property at Center, Missouri (the point of shipment), and its value when tendered him. \u2019 \u2019\nThe witness was then asked the market' value of the show-cases in the condition in which they were received. He answered that the cases, in their crates, looked like a car of junk, and looked so bad he didn\u2019t want to receive the shipment at all, but he did receive it because he realized he could get more out of it than any one else. He then .answered that the value was $200.\nUnder the direction of the court the jury returned a verdict for the plaintiff for $273.35, and the railroad company has appealed.\nIt is obvious that the plaintiff stated his cause of action and the measure of his damages defectively; but there was neither demurrer to the complaint nor motion to make it more definite, and his testimony made a case which entitled him to recover damages.\nThe plaintiff was right in assuming that it was his duty to receive the cases, notwithstanding their injured condition, and it was his duty to minimize the damage, if this could be done at a reasonable cost, and the sum expended for that purpose does not appear to have been unreasonable, in comparison with the value of the property in the restored condition.\nIn the case of St. L. I. M. & S. Ry. Co. v. Laser Grain Co., 120 Ark. 119, we said: \u201cThe rule for computation of damages for delay arid injury in transportation of goods is the difference between the market price of the goods at the time and place when and where they should \u25a0 have been delivered and their value when and in the condition in which they were delivered. St. L. I. M. & So. Ry. Co. v. Tilby, 117 Ark. 163, 174 S. W. 1167.\u201d\nThe -undisputed testimony in this case i^ to the effect that the plaintiff had paid $542 for the cases, including the freight, and- he stated the market value, at the time and place of delivery, to be $200, the difference of $342 being greater than the cost of restoration, for which amount the jury\u2019s verdict was returned.\nIn some eases the cost of restoration is itself the proper measure of damages. This would be true in a case where the article damaged had actual value but no market value. In the case of St. L. I. M. & So. Ry, Co. v. Dague, 118 Ark. 277, the carrier lost a machine valuable to the owner, but without market value. We there quoted with approval from the case of Southern Express Co. v. Owens, 146 Ala. 412, 9 Am. & Eng. Ann. Cas. 1143, the following statement of the law: \u201cIn an action to recover for the loss of an article which had no market value, the measure of damages should be the value of the article to the plaintiff, and, in ascertaining this value, inquiry may be made into the constituent elements and the cost to the plaintiff of producing the article.\u201d We further quoted from that opinion .as follows: \u2018 \u2018 Ordinarily, where property has a market value that can be shown, such value is the criterion by which actual damages for its destruction or loss may be fixed. But it may be that property destroyed or lost has no market value. In such state of the case, while it may be true that no rule which will be absolutely certain to do justice between the parties 'can be laid down, it does not follow from this, nor is it the law, that the plaintiff must be turned out of court with nominal damages merely. Where the article or .thing is so unusual in its character that market value cannot be predicated of it, its value, or plaintiff\u2019s damages, must be ascertained in some other rational way, and from such elements as are obtainable.\u201d\nIn volume 2, Moore on Carriers (2 ed.), \u00a7 4 of the chapter (XV) on Damages deals with the measure of damages against carriers where the shipment is only injured, and, after stating the ordinary measure of damages, it is there said: \u201cReasonable costs and expenses incurred in repairing damage and compensation for the loss of the use of the goods during such time * * * have been held to be recoverable, in addition to the actual loss, where the injury to the goods was lessened by the action of the plaintiff. The law, for wise reasons, imposes upon a party subject t\u00f3 injury from a breach of contract the active duty of making reasonable exertions to render the injury as light as possible.\u201d\nWe conclude therefore that there was no error in directing the jury to return a verdict in favor of the plaintiff for the cost of the repairs, because the sum thus expended was less than the depreciation in market value was shown to have been. The plaintiff made no objection to the court fixing the cost of repair as the measure of damages, and1, in the absence of objection on the plaintiff\u2019s part, his attitude is that of acquiescing in the assumption that the repair of the cases restored them to their former value, and no prejudice resulted to the railroad in doing this.\nNo error appearing, the judgment is affirmed.", "type": "majority", "author": "Smith, J." } ], "attorneys": [ "Lamb Frierson, for appellant.", "Hunter $ Hunter, for appellee." ], "corrections": "", "head_matter": "St. Louis Southwestern Railway Company v. Tucker.\nOpinion delivered November 19, 1923.\n1. Pleading \u2014 defective statement. \u2014 Where plaintiff\u2019s testimony made out a case for damages, a judgment in his favor will not he set aside because his cause of action and the measure of his damages were defectively stated, in the absence of a demurrer or motion to make his complaint more specific.\n2. Carriers \u2014 duty of owner to receive damaged shipment. \u2014 It is the duty' of the owner to receive freight from a carrier, though damaged in transit, and to minimize the damages, if it can be done at a reasonable cost.\n3. Carriers \u2014 damaged freight \u2014 repairs.\u2014Where the sum expended for repairs. to an article damaged in transit was less than the difference between the market value of the article in its damaged and its restored condition, the sum thus expended is reasonable.\n4. Damages \u2014 cost of restoration. \u2014 Where an article damaged by a carrier has actual value, but no market value, the cost of restoration is the proper measure of damages.\n5. Carriers \u2014 repairs to damaged freight \u2014 acquiescence.\u2014Where plaintiff made no objection to the court fixing the cost of repairs as the measure of damages to an article injured in transit, he will be deemed to have acquiesced in the assumption that repairs restored the article to its former value.\nAppeal from Clay Circuit Court, Eastern District; W. W. Bandy, Judge;\naffirmed.\nLamb Frierson, for appellant.\nThe court erred in directing a verdict for the plaintiff. There was no legal measure of damages pleaded, and the court erred in allowing plaintiff to prove the amount required to repair the show-cases. 88 Ark. 594; 76 Ark. 542; 89 Ark. 518; 110 Ark. 49; 111 Ark. 521; 101 Ark. 172.\nHunter $ Hunter, for appellee.\nThe measure of damages was correct. 120 Ark. 264 ; 134 Ark. 430; 120 Ark. 119. Objections not raised in the lower court cannot be considered here for the first time. 130 Ark. 291; 133 Ark. 196; 154 Ark. 440." }, "file_name": "0140-01", "first_page_order": 168, "last_page_order": 172 }