A re-examination of this case on motion for rehearing leads to the conclusion that the judgment heretofore rendered by this court affirming the judgment of the court below should be set aside and the judgment of the lower court reversed and the cause remanded.
The gist of the plaintiff's action against the appellant was for damages in the nature of rents or the value of the use of certain gin machinery that was delayed en route in shipment by the appellant and its alleged partnership carrier.
The measure of damages submitted to the jury by the charge of the court was the reasonable rental value of the machine during the time of the delay in its delivery occurring after the time when it should have been delivered.
It is urged that this charge is erroneous for the reason that it is not the measure of damages made by the pleadings and the evidence.
The amended petition, upon which the case went to trial, asks for a recovery of the value of the use or rental value of the machine during the time of the delay, but states no facts showing that the appellee is entitled to such damages.
It appears from the facts alleged, as well as those proven, that the machine was purchased and shipped by Hurlbut Semple, merchants, who were dealing in such machinery, and that the carrier received the machine for shipment, consigned to them at Brownwood, Texas.
In shipments of this character to merchants of the class of goods in which they deal, the ordinary measure of damages resulting from delay in the shipment or delivery of the article shipped is the difference between the value of the property at the time it did arrive and the time when it should have arrived. Any sum sought to be recovered beyond this amount is necessarily special damages, and the pleadings must allege the facts that entitle the plaintiff to so recover such damages, and these allegations must be proven in order to warrant a recovery by the plaintiff.
It appears from the evidence that the machinery was purchased by Hurlbut Semple for the appellee, Gilbert, to be used by him in ginning cotton; and the rental value of such machinery during the period of the delay is also shown. But do the pleadings aver and does the evidence show that the appellant or its alleged copartnership carrier, at the time that the contract of shipment was entered into, knew of the purposes for which said machine was to be used, or had knowledge of facts sufficient to put them upon contemplation of the intended uses and purposes to which the machine was to be devoted? *Page 370
There is no allegation to this effect beyond that asking a recovery for rents. But if the facts in this respect had been fully alleged, the evidence upon this issue falls far short of making a case showing that such damages or rents or such intended use of the machine was within the contemplation of the carrier and the shipper at the time the contract of shipment was entered into. The only evidence bearing upon this question is that Hurlbut, one of the consignees, several days after the contract of shipment was entered into, and presumably after the goods were en route, notified the appellant of the purpose for which said machine was intended, and requested it to expedite the shipment. There is no pretense that the carrier knew of such purpose at the time of making the contract of shipment. The special damages for the value of the use or rent of the machine sought to be recovered in this case can only be allowed when they ensue as a result of the breach of the contract entered into at the time of the shipment. These damages are either recoverable only as the result of an express contract with the carrier that it should be so bound or from an implied liability resting upon the carrier by reason of the facts and circumstances surrounding the parties at the time the contract of shipment was made. There is no pretense in this case that the carrier is liable for the value of rent of the machine by reason of an express contract to that effect. If the facts and circumstances put the carrier upon notice or convey to it knowledge of the purpose and intended use of the machine, then it would become liable for the damages that may result to the shipper as a consequence of the delay. This being upon the theory that the special circumstances and purpose of the shipment being known to the carrier, it must use such reasonable diligence in the performance of its contract of carriage as would place the shipper in a position to reap the profits or enjoy the use that the parties contemplated and considered at the time of shipment would result to him if the goods had been delivered within a reasonable time.
In order to make the carrier liable for the damages that result by reason of the special circumstances known to it, those circumstances and the knowledge resulting therefrom must be made known to the carrier at the time that the contract of shipment is entered into. This upon the principle that the carrier, by reason of the additional risk and the increased liability, may enter into suitable stipulations looking to its protection. It is not enough to give notice to the carrier after the contract is made and the shipment has started in its transportation, because the liability of the carrier can not be increased by the subsequent knowledge of facts that did not exist in the contemplation of the parties at the time the engagement was entered into.
It then became an effort upon the part of one of the contracting parties to inject a stipulation into the contract after it was entered into that increases the liability of the other that was not mutually considered when *Page 371 the engagement was made. The information of the intended purpose of the shipment conveyed by Hurlbut subsequent to the engagement was not sufficient to increase the liability of the appellant to the loss of the use or the value of the rent of the machine.
The judgment of the court below is reversed and the cause remanded.
Reversed and remanded.
Motion for rehearing refused.