Opinion
Application No. 21,862.
Decided April 1, 1936.
Carriers — Damages — Negligence.
A plaintiff, in order to recover special damages against a carrier for breaching a contract, must show that at the date of the contract the defendant had notice of the special condition rendering such damage the natural and probable result of the breach, and a carrier who at the time of making a new agreement had knowledge that special damages would result from a breach thereof would be liable for its negligence in carrying out such agreement.
Error to the Court of Civil Appeals for the Eighth District, in an appeal from El Paso County.
Suit by Alfred Butler against the Atchison, Topeka Santa Fe Railway Company to recover for the sum of $452.27 which he claimed was the amount lost to him as the result of the negligent failure of defendant in delivering to him at his mine near Bumble Bee, Arizona, certain casting for his mill within a reasonable time. Judgment of the County Court at Law, of El Paso County, for plaintiff was affirmed by the Court of Civil Appeals ( 89 S.W.2d 791) and the railway company has brought error to the Supreme Court.
Application was submitted to the Supreme Court sitting with the Commission of Appeals and opinion written by Judge Taylor of the Commission was adopted as the opinion of the Supreme Court.
Application dismissed for want of jurisdiction.
Turney, Burges, Culwell Pollard and J. F. Hulse, all of El Paso, for plaintiff in error.
Wilchar Wilchar, of El Paso, for defendant in error.
The disposition made of this case by the Court of Civil Appeals ( 89 S.W.2d 791) is correct. We are not in accord, however, with the statement in the opinion to the effect that in Missouri K. T. Ry Co. v. Belcher, 89 Tex. 428, 35 S.W. 6, the rule, that in order to recover special damages for breach of contract it is incumbent upon plaintiff to show that at the date of the contract the defendant had notice of the special conditions rendering such damages the natural and probable result of the breach, was abrogated by this Court in Conn et al. v. Texas N. O. Ry. Co., 14 S.W.2d 1004. The rule announced in the Belcher Case is still the law. In the Conn Case, as in this, the carrier made a new agreement and at the time had knowledge of the special damages that would result from the negligent breach of the new agreement.
Application for the writ is therefore dismissed for want of jurisdiction. Article 1728, R. S., 1925, as amended by Acts 1927, 40th Leg., p. 214, ch. 144.
Opinion adopted by the Supreme Court April 1, 1936.