This action was instituted by the plaintiff against the defendant in a magistrate's Court and was heard without a jury at Barnwell, S.C. for damages. The complaint was in writing, and the eighth paragraph alleges:
"That due to defendant's negligence the defendant. South-eastern Express Company, after receiving the film at the time above specified, failed and refused to transport and deliver the said film to the plaintiff in a reasonable length of time, namely, February 2, 1922, and did not attempt to deliver the said film to the plaintiff until some time during *Page 456 February 3, 1922, which was too late to be shown by the plaintiff in his theater on the day advertised, and was therefore refused."
The answer of the defendant was: (1) A general denial; (2) that the shipment in question was interstate commerce; (3) failure to comply with the terms of the express receipt, and especially section 7 thereof, in that the plaintiff failed to file a claim in writing with the company within the four months' period after reasonable time for delivery had elapsed.
The defendant objected to the testimony offered by the plaintiff as to the alleged damages, on the ground that the damages were speculative and special and the defendant had no notice thereof. This objection was overruled and the testimony allowed.
The testimony tends to show: That on the 1st day of February, 1922, and for some time prior thereto, the plaintiff was conducting a moving picture business in the town of Barnwell, in the State of South Carolina, and the defendant was an express company operating its business between Atlanta, Ga., and Barnwell, S.C. and beyond; and that the particular film was delivered to the defendant at Atlanta, Ga., at 6:10 p. m., on the 1st day of February, 1922, and the first departing train moving the defendant's express was at 12 o'clock that night, known as Southern Train No. 36, arriving at Spartanburg, S.C. at 7:35 a. m. February 2, 1922; said film left Spartanburg on train No. 2 at 10:45 a. m., arriving at Columbia the same day at 2:30 p.m., leaving Columbia on train No. 13 at 4:05 p. m. that day, and arriving at Barnwell at 6:45 p. m. the same day; but the film was carried to Allendale on the last-mentioned train and returned to Barnwell the next morning, February 3d, at 8:06 a. m.
The defendant had an office and an agent at the time at Barnwell, aforesaid, and deliveries of picture films had been made by the defendant to the plaintiff from the said train *Page 457 due at Barnwell at 6:45 p.m., and also on trains arriving at Barnwell at 8 a. m., 11 a. m., and 12:45 p. m. Picture films had theretofore been delivered to the plaintiff by the defendant from Southern Enterprises, Inc., of Atlanta, Ga., on the 6:45 p. m. train.
The answer of the defendant put the plaintiff on the proof of his case, and the defendant's testimony tended to show that deliveries of picture films had not been made by defendant to the plaintiff on the said 6:45 p. m. train; hence, the defendant's general denial and its testimony raised issues of fact to be decided by the magistrate. The magistrate found the facts in favor of the plaintiff and his findings were concurred in by the Circuit Judge; and as there was some evidence for the basis of the findings, this Court cannot review them.
In Saunders v. So. Ry., 90 S.C. 79; 72 S.E., 637, this Court held, "Where a finding by the Circuit Court on appeal from magistrate is supported by any evidence, it is final"; and in Flowers v. A.C.L.R. R., 93 S.C. 80;76 S.E., 32, this Court held, "On appeal from Circuit order affirming magistrate judgment, findings of fact on Circuit are not reviewable here."
A higher rate is paid for the transportation by express than by railway; and an express company is required and expected to make quick delivery, so facts and circumstances which may show negligence against an express carrier may not be sufficient to show negligence against a carrier in a different class.
In this case I cannot conclude that only one inference can be drawn from the evidence, hence exception 2 is overruled. I will consider the exceptions in the order of the points arising rather than in the order of the exceptions. While none of the exceptions raise the issue that the testimony was insufficient to show actionable negligence, as the action sounds in tort, I have construed exception 2 as intending to make that point. Exception 1 alleges error in the magistrate *Page 458 in not excluding certain testimony objected to by the defendant, upon the ground that the damages were speculative and special, and no evidence of notice to the defendant of the same at the time the contract was made.
As the defendant was charged with the violation of a duty required of it by law as a common carrier, the action in tort was proper. In Reaves et al. v. Western U. Tel. Co., 110 S.C. 238;96 S.E., 297, this Court held:
"But the rule is well settled that for dereliction in the performance of a duty owing to the public by a common carrier he is liable in tort to the person injured thereby, notwithstanding the tort originated in breach of contract, and, in such actions, actual and punitive damages, one or both, may be awarded, as the circumstances may warrant."
The principle is announced in 8 R.C.L. at page 508:
"Generally it may be said that the rule as to their allowance (damages) is more liberal in actions purely of tort than in actions for breach of contract."
Punitive damages are not demanded and could not be allowed in this case under the testimony.
Are the damages awarded speculative or special? There is quite a difference between speculative and special damages. Under our decisions the contention of the defendant that the damages are speculative cannot be sustained. The syllabus of our own case of Lester v. Fox Film Corporation,114 S.C. 533; 104 S.E., 178, reads as follows:
"In an action for breach of contract to supply defendants' motion picture films to plaintiff for exhibition, where it was shown that defendants' films were popular, and that the income from their exhibition was reasonably ascertainable, plaintiff is entitled to more than nominal damages, though his witness could not state the rental value of the pictures; rental value meaning only such damages as are recoverable in a particular case, and in this case would mean the revenue which the exhibition of the picture would bring." *Page 459
In the case of Strange v. Ry. Co., 77 S.C. 182;57 S.E., 724, this Court laid down the rule that the measure of damages for breach of contract by delay in delivering trunks, known to be essential to the salesman's business, was his fair average daily earnings; and see cases cited in StandardSupply Co. v. Carter Harris, 81 S.C. 185;62 S.E., 150; 19 L.R.A. (N.S.), 155.
In the case of Board of Commissioners v. Richardson etal., 122 S.C. 60; 114 S.E., 633, Associate Justice Cothran rendering the opinion of the Court says:
"In the case of growing unmatured crops destroyed, at any period of their existence, at any stage of development, the criterion is to ascertain: (1) What would reasonably have been produced but for the act of the condemnor; (2) what would it have been worth on the market at the time of such destruction; (3) deduct therefrom the estimated expenses of producing, cultivating, harvesting and marketing."
This case is a departure from the rental value principle laid down in Horres v. Berkeley Chemical Co., 57 S.C. 189;35 S.E., 500; 52 L.R.A., 36.
McCown-Clark Co. v. Muldrow, 116 S.C. 54;106 S.E., 771, holds:
"When a buyer of fertilizer could not procure other fertilizer on the seller's failure to deliver, evidence as to the difference between the crop on which the fertilizer was to be used and fertilized crops on adjoining land of similar quality worked in the same way was admissible."
In Martin v. S.A.L. Ry., 70 S.C. 13; 48 S.E., 617, our Supreme Court held:
"The rule that damages which are uncertain or contingent cannot be recovered, does not embrace an uncertainty as to the value of the benefit or gain to be derived from the performance of the contract, but an uncertainty or contingency as to whether such gain or benefit would be derived at all. It only applies to such damages as are not the certain result of the breach, and not to such as are the certain result, but uncertain in amount." *Page 460
The foregoing authorities, I think, are conclusive on the point that the damages were not speculative. While the allegations of the complaint might have been more specific as to special damages, it was sufficient to put the defendant on notice of the damages to the plaintiff; besides, the pleadings in a magistrate's court need not be formal. In Millerv. Southern Express Co., 99 S.C. 333; 83 S.E., 449, the question of special damages was submitted to the jury.
In that case the plaintiff's children had been bitten by a dog supposed to have rabies, and the fact that the express company knew that the dog's head was delivered to it to be transported for examination for rabies, and the dog had bitten the children of the plaintiff, it was held that the Court properly refused to instruct that defendant was not liable for special damages.
In Givens v. Electric Co., 91 S.C. 421; 74 S.E., 1069, it was held that whether special damages "were in the contemplation of both parties to the contract, and whether they contracted with reference thereto," is "ordinarily a question of fact for the jury, unless the evidence is susceptible of only one reasonable inference, and then it is for the Court. The rule as to the recovery of special damages for breach of contract is stated in the leading case of Hadley v. Baxendale, 9 Exch., 353: `Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.'"
See cases cited in Standard Supply Co. v. Carter, supra; also, Simpkins v. W.U. Tel. Co., 97 S.C. 413;81 S.E., 657.
Exception 3, in my opinion, cannot be sustained for the reason the conclusion has been reached that the findings of *Page 461 the magistrate concurred in by the Circuit Judge had some basis in the evidence as to negligence, and in such case, under the Interstate Commerce Law, the plaintiff is not precluded from a recovery. In my opinion, the judgment in this case should be affirmed, and I concur in the opinion of Associate Justice Watts.