#### CAUBLE v. SOUTHERN EXPRESS COMPANY and WALKER D. HINES, Director General of AMERICAN RAILWAYS EXPRESS COMPANY.

(Filed 9 November, 1921.)

1. Appeal and Error — Harmless Error — New Trials.

A new trial will not be granted on appeal for mere technical error committed on tbe trial, which will not subserve the real ends of substantial justice in correcting some ruling that so tends to the prejudice of the appellant that a new trial may rectify it.

2. Same— Government— Express Companies— Railroads— Negligence— Measure of Damages.

Where in an action against a common carrier to recover damages for its negligence in rendering practically valueless the goods delivered to it for transportation, the measure of plaintiff’s damages is the difference between the market value of the goods just preceding the injury and their value immediately thereafter; and though, in this case, the court erroneously charged the jury that the damage to the goods would be the difference between their market value immediately preceding the injury and such value at the time of the trial, a year or more thereafter, it was harmless, it appearing that such value was the same in both instances.

3. Appeal and Error1 — Motions— Pleadings— Process— Amendments— Parties — Express Companies — Railroads—Director General — Government.

In an action to recover damages for the destruction of goods by express, when express companies, as a war measure, were under the management and control of the Director General of Railroads, the plaintiff’s motion in the Supreme Court, on appeal, to amend process and complaint, to show the injury was not caused by the express company, but by the Director General, was allowed, which had the effect of eliminating defendant’s contention that only the express company had been sued.

*4494. Parties — Express Companies — Director General — Government—Pleadings — Process—Appeal and Error — Record.

It appearing of record on appeal in this case that the name of the Director General of Railroads, having charge of express companies, was named in the summons, accordingly served on the local agent, and that his name as well as that of the express company was set out in the pleadings alleging negligence, etc., and that the jury considered the evidence upon the separate issues accordingly: Held as untenable, the exception that only the express company and not the Director General was a party to the action, and that a verdict as to the latter was invalid, both the Director General and the express company being substantially parties.

5. Express Companies — Director General — Government ■— Railroads — Measure of Damages — Evidence—Diminution of Damages.

In an action against the Director General of Railroads while in control of express companies, as a war measure, for the complete destruction, by negligence, of a shipment by express, the defendant may show, if he can, that there remained value in the damaged shipment, in diminution of the amount of recovery, but not having attempted tó do so in this case, he must be satisfied with the damaged shipment, which is left with him for whatever benefit he may derive therefrom.

Appeal by defendant from Finley, J., at tbe February Term, 1921, Of GuiLEOKD.

Tbis action was brought to recover damages for tbe injury to or destruction of a easb register, sold by tbe plaintiff (wbo lived and carried on bis business at Higb Point, N. C.) to tbe Bank of Hickory Grove, at a town by tbat name in tbe State of South Carolina, tbe machine having been shipped via tbe American Eailway Express Company to tbe consignee at tbat place. It is alleged tbat when shipped it was in perfect condition, but when it arrived at its destination it was found to be in a very ruinous state, and tbe manufacturer could not repair it, even at great cost, because its number bad been lost, so it was left in tbe possession of tbe American Eailways Express Company. Tbe jury assessed tbe damages at $300, and defendant appealed from tbe judgment on tbe verdict.

Wilson & Frazier for plaintiff.

John A. Barringer for defendant.

Walker, J.,

after stating tbe case: (1) Tbe defendant’s first exception and assignment of error set forth in tbe case on appeal is to tbe charge of tbe court as to tbe rule of damages by which tbe jury was to be guided in assessing tbe amount which tbe plaintiff was entitled to recover. It appears the judge charged tbe jury tbat tbe rule of damages was tbe difference between tbe market value of tbe cash register before tbe injury complained of and tbe market value of tbe cash register at *450tbe time of tbe trial wbicb was more tban a year afterwards. Tbe defendant contends tbat tbis is not tbe correct rule, wbicb is tbe difference between tbe market value of tbe property just before tbe injury and- tbe said value immediately after tbe injury, and not tbe value of tbe property a year or more after tbe negligence complained of.

Allen, J., lays down tbe rule in tbe following language in tbe case of Farrall v. Garage Co., 179 N. C., 393: “Tbe correct and safe rule is tbe difference between tbe value of the machine before and after its injury.” But plaintiff, in making tbis objection to tbe measure of damages, overlooks, or rather leaves out, tbe fact tbat although tbe charge measured tbe damages by tbe difference in tbe value of tbe cash register before tbe injury to it, and one year after tbe injury, it appears tbat tbe injury to tbe machine was tbe same just after it was done as it was one year afterwards, and there was no decrease in its value between the two dates, so tbat there was practically, and even theoretically, no barm done. When tbe aid of tbis Court is invoked to grant a new trial, tbe motion for tbe same will be carefully weighed by us, and will be denied unless the merits are made clearly to appear. Courts do not lightly grant reversals, or set aside verdicts, upon grounds wbicb show tbe alleged error to be harmless or where the appellant could have sustained no injury from it. There should' be, at least, something like a practical treatment of tbe motion to reverse, and it should not be granted except to subserve tbe real ends of substantial justice. Tbe motion should be meritorious and not based upon merely trivial errors committed, manifestly without prejudice. Reasons for attaching great importance to small and innocuous deviations from correct principles have long ceased to have that effect and have become obsolete. Tbe law will not now do a vain and useless thing. The foundation of the application for a new trial is the allegation of injustice, and the motion is for relief. Unless, therefore, some wrong has been suffered there is nothing to be relieved against. The injury must be positive and tangible, not theoretical merely. For instance, tbe simple fact of defeat is in one sense injurious, for it wounds the feelings. But this alone is not sufficient ground for a new trial. It does not necessarily involve loss of any kind, and without loss or tbe probability of loss there can be no new trial. The complaining party asks for redress, for tbe restoration of rights which have first been infringed and then taken away. There must be, then, a probability of repairing tbe injury, otherwise tbe interference of tbe Court would be but nugatory. There must be a reasonable prospect of placing tbe party who asks for a new trial in a better position tban tbe one wbicb be occupies by the verdict. If be obtains a new trial be must incur additional expense, and if there is no corresponding benefit he is still tbe sufferer. Besides, courts are instituted to enforce *451right and restrain and pnnisb wrong. Their time is too valuable for them to interpose their remedial power idly and to no purpose. They will only interfere, therefore, where there is a prospect of ultimate benefit. Brewer v. Ring and, Valk, 177 N. C., 476, at pp. 484-485, citing many authorities, and among them, Hilliard on New Trials (2 ed.), secs. 1 to 7; S. v. Smith, 164 N. C., 476; Schas v. Assurance Society, 170 N. C., 420, 424; 3 Graham and Waterman on New Trials, 1235; Hulse v. Brantley, 110 N. C., 134; Alexander v. Savings Bank, 155 N. C., 124; McKeel v. Holloman, 163 N. C., 132. See, also, Grice v. Ricks, 14 N. C., 62; Gray v. R. R., 167 N. C., 433; Blalock v. Clark, 133 N. C., 309; Reynolds v. R. R., 136 N. C., 345; Pell’s Eevisal, vol. 1, p. 237, sec. 507.

Surely when this rule, which is both sensible and just, is applied to the facts in hand, there is nothing to be gained by granting a new trial for the reason stated by the defendant, and it would, practically considered, be unwise to do so, as the motion, so far as it relates to this ground upon which it is based, is without any genuine merit. If defendant (Director General) had shown that the debris of this machine was of any real value, he would have been entitled to a deduction from the recovery, to the amount of it, as found by the jury, but he did not do so. But it will appear hereafter that this is really immaterial, as we will direct that the machine be kept by the defendant, who can dispose of it in his discretion and in that way get the benefit of its value, if it has any. This was defendant’s principal exception on the merits.

Plaintiff moved in this Court to amend process and complaint so as to show more clearly that the injury to the cash register was not caused by the Southern Express Company, but by the defendant Director General of Eailroads, having charge of the American Eailways Express Company during the period of Federal control as a war measure, and we allowed the amendment. This disposes of the defendant’s contention that the Southern Express Company was the only one sued in this action, and that the Director General (in charge of the American Eailways Express Company) was not sued, nor was the last named express company. While we have sufficiently answered the last contention by reference to the amendment of process and pleadings, or complaint, we are of the opinion the amendment was not necessary, but was, perhaps, resorted to as a cautionary measure. The record plainly shows that the summons was addressed to “Walker D. Hines, Director General of the American Eailways Express Company,” and was served, according to the sheriff’s return thereon, “On J. E. Parks, agent of Walker D. Hines, Director General of American Eailways Express Company,” and also on the agent of the Southern Express Company on 9 January, 1920. The bond for costs was made payable to the American Eailways Express *452Company. Tbe case was entitled on tbe record below, “Cauble v. Walker D. Hines, Director General,” and sometimes as “Cauble v. American Railways Express Company,” and was, in all of these names, submitted to tbe jury. Tbis would seem to be most ample to sbow, and sbow conclusively, tbat tbe Director General and botb express companies were served witb process, and tbe complaint is drawn accordingly, expressly naming botb express companies and tbe Director General.

Tbe other exceptions are either merely formal or entirely without merit.

Tbe trial of tbis case was errorless, and it is remanded witb instructions to dismiss tbe action, witb costs to be taxed, as to tbe Southern Express Company, which it appears bad no connection witb tbe transaction (McAlister v. Express Co., 179 N. C., 556), and, as to tbe Director General of tbe American Railways Express Company we affirm tbe judgment.

The cash register, as above indicated by us, will remain in tbe possession of tbe defendant Director General having charge of tbe American Railways Express Company as bis property, so tbat be may get tbe benefit of its value, if it has any.

Judgment affirmed as modified.