any cause, there can be no recovery by the purchaser upon its loss of the amount paid by him therefor, or of damages for failure of the carrier to transport him without the payment of fare.13

§ 1945. Breach of contract as to staterooms.-Where a husband and his invalid wife are assigned to separate staterooms in violation of the contract of carriage giving them the exclusive use of a stateroom, the disappointment and irritation of the husband and the wife's discomfort and suffering are elements to be considered in estimating the damages." And where a husband and wife have contracted for the exclusive use of a stateroom, it has been decided that for the act of a carrier in forcing them to receive another male passenger therein, punitive damages are recoverable.15

§ 1946. Overcrowding of vessel.-Where tickets are sold by a steamship company to steerage passengers and such passengers are actually received largely in excess of the number for which the company has accommodations, and in consequence the passengers are delayed and injured, there is a breach by the company of its contract of carriage for which it is responsible in damages, and it is no defense to an action therefor that permission of the inspector was obtained to so crowd the vessel.16

§ 1947. Contract to furnish cars for excursion.-For the breach of a contract by a carrier to furnish a certain number of passenger cars for an excursion, it has been decided that the measure of damages will be the amount of money lost as a consequence of the breach, in determining which there should be considered the amount which plaintiff had received for tickets and which he was obliged to refund, together with such sum as would have been received from the sale of other tickets had the train gone as contemplated and also the amount expended for advertising and other necessary expenses, de

18 Southern Ry. Co. v. De Saussure, 116 Ga. 53; 42 S. E. 479.

14 Morrison v. The John L. Stephens, Fed. Cas. No. 9,847.

15 Morrison v. The John L. Stephens, Fed. Cas. No. 9,847.

16 The Valencia, 110 Fed. 221.

ducting therefrom such sum as was to have been paid for the cars.17

§ 1948. Compelling white woman to ride in negro coach -Mental pain, etc.-Where a carrier violates its contract by compelling a white woman to ride in a coach used for the transportation only of negroes, it has been decided that though no physical injury is sustained there may be a recovery for mental pain and humiliation which the plaintiff has suffered as a direct result of such breach.18 It was said by the court in this case: "Again it is contended that the judgment is not supported by the evidence because it is not shown that appellee's wife sustained any damages by reason of having to ride in the negro car. The proposition advanced to support this contention is that damages are not recoverable for mental distress. or humiliation unaccompanied with physical pain or suffering. In not seating appellee's wife and children in a coach provided for white people and compelling them, on that account to ride in the negro car, appellant violated its contract, and failed to discharge its duty as a common carrier and for the breach of contract and neglect of duty is liable for such damages as it ought to have reasonably anticipated would flow therefrom. That damages for mental pain, anxiety, distress or humiliation suffered if the direct result of appellant's failure or neglect to perform its duty may be recovered, though unaccompanied with physical injury, pain, or suffering is now too well settled in this state to admit of question.19 To withhold from a white lady the right to ride in a coach such as the law provides to be required for her race, and to compel her and her children to ride in one occupied by negroes, for whom, under the law, it was provided exclusively, constitutes such a violation of law and breach of duty as render a common carrier of passengers liable in damages for such discomfort and humiliation as are proximately caused from such breach of duty." 20

17 Illinois Cent. R. Co. v. Demars, 44 Ill. 292.

18 Missouri, K. & T. Ry. Co. v. Ball, (Tex. Civ. App. 1901), 61 S. W. 327. In this case a recovery of $1,000 for so riding a distance of sixty miles was held excessive.

19 Citing Railway Co. v. Armstrong, 93 Tex. 31; 51 S. W. 835; Railway Co. v. Perkins (Tex. Civ. App.), 52 S. W. 124.

20 Per Neill, J.

§ 1949. Loss of or injury to baggage.-The measure of damages in an action against a carrier for loss of a passenger's baggage is the value of the property lost with interest. And this is generally to be determined not on the market value of the baggage lost or what it could be sold for but its value to the passenger. So in one case in which this question arose it was said by the court: "The lost articles seemed to be of such character . . . that they could not be said to have to him a value at one place different from what they possessed at another. He could hardly have supplied himself in the market with goods in the same condition and so exactly suited to his purpose as were those of which he had been deprived. As compensation for the actual loss is the fundamental principle upon which this measure of damages rests, it would seem that the value of such goods to their owner would furnish the proper rule upon which he should recover,-not any fanciful price that he might for special reasons place upon them, nor on the other hand, the amount for which he could sell them to others, but the actual loss in money he would sustain by being deprived of articles so specially adapted to the use of himself and his family." So for this purpose testimony of the owner of the baggage is admissible and is declared to be sufficient proof of value. If, however, the articles lost have a market

23

22 Parmelee v. Raymond, 43 Ill. App. 609; Simpson v. New York, N. H. & H. R. Co., 16 Misc. R. (N. Y.) 613; 73 N. Y. St. R. 812; 38 N. Y. Supp. 341; Lake Shore & M. S. R. Co. v. Warren, 3 Wyo. 134; 6 Pac. 724. Examine Spooner v. Hannibal & St. J. R. Co., 23 Mo. App. 403.

21 Wiegand v. Central R. Co., 75 | Pac. R. Co., Montreal L. Rep. 5 Fed. 370; 5 Am. & Eng. R. Cas. N. Super. Ct. 9. S. 61; Merrill v. Pac. Transp. Co., 131 Cal. 582; 63 Pac. 915; Parmelee v. Raymond, 43 Ill. App. 609; Voss v. Wagner Pal. Car Co., 16 Ind. App. 271; 44 N. E. 1010; Mote v. Chic. & N. W. Ry. Co., 27 Iowa, 22; 1 Am. Rep. 212; The Majors v. Mason, 5 Kan. 670; Spooner v. Hannibal & St. J. R. Co., 23 Mo. App. 403; Simpson v. New York, N. H. & H. R. Co., 16 Misc. R. (N. Y.) 613; 73 N. Y. St. R. 812; Houston, E. & W. T. Ry. Co. v. Seale (Tex. Civ. App. 1902), 67 S. W. 437; Lake Shore & M. S. R. Co. v. Warren, 3 Wyo. 134; 6 Pac. 724; Provencher v. Canadian

23 Railway Co. v. Nicholson, 61 Tex. 550, cited and quoted in Cooney v. Pullman Pal. Car Co., 121 Ala. 368; 25 So. 712; 6 Am. Neg. Rep. 1.

24 Cooney v. Pullman Pal. Car Co., 121 Ala. 368; 25 So. 712; 6 Am. Neg. Rep. 1. See 4 Elliott on Railroads, sec. 1660.

value, this is declared to be the standard of value which should control in assessing the damages.

§ 1950. Baggage for which carrier is liable in damages. -Damages in an action for loss of baggage may properly be assessed for such articles of necessity and convenience as are usually carried by passengers for personal use and comfort, instruction and amusement or protection, having regard to the object and length of the journey. Generally the articles allowed as baggage to accompany the passenger and which the carrier is bound to transmit as an insurer are the personal apparel of the passenger, but may include a number of other articles which may not unreasonably be designed for his pleasure, business, and convenience upon the journey which he is prosecuting." In a general sense it may be said to include such articles as it is usual for persons traveling to take with them for their pleasure, convenience and comfort according to the habits and wants of the class to which they belong. And in an action against a sleeping car company for money lost while occupying a berth in a sleeping car, it is properly a question for the jury to determine what portion of such money is reasonably necessary for the passenger to complete his journey. And as to the damages recoverable and extent of the carrier's liability for loss of money of a passenger, the following words from the court in this last case are pertinent: "We think that the liability of the defendant for the negligent loss of the plaintiff's money should be limited to that imposed on a common carrier for the 25 Cooney v. Pullman Pal. Car Co., | Pal. Car Co. v. Gaylord, 23 Am. L. 121 Ala. 368; 25 So. 712; 6 Am. Neg. Reg. N. S. 788. See 4 Elliott on Rep. 1; Spooner v. Hannibal & St. Railroads, secs. 1647-1649. J. R. Co., 23 Mo. App. 403.

26 Werner v. Evans, 94 Ill. App. 328; Parmelee v. Fischer, 22 Ill. 212; 74 Am. Dec. 138; Sherlock v. Chic. R. I. & P. Ry. Co., 85 Mo. App. 46; Frankfort v. New York Cent. & H. R. Co., 73 N. Y. 167; Williams v. Webb, 27 Misc. R. (N. Y.) 508; 58 N. Y. Supp. 300, citing Barrott v. Pullman Pal. Car Co., 51 Fed. 796; Hillis v. Chicago, R. I. & P. R. Co., 72 Iowa, 228; Pullman

28

27 Illinois Cent. R. Co. v. Matthews, 24 Ky. L. Rep. 1766; 72 S. W. 302, per the court.

28 Oakes v. Northern Pac. R. Co., 20 Or. 392; 26 Pac. 230; 12 L. R. A. 318; 23 Am. St. R. 126, per the court, cited in Illinois Cent. R. Co. v. Matthews, 24 Ky. L. Rep. 1766; 72 S. W. 302.

29 Williams v. Webb, 27 Misc. R. (N. Y.) 508; 55 N. Y. Supp. 300; 6 Am. Neg. R. 129.

30

loss of a traveler's baggage. While the ground of a common carrier's liability arises primarily out of the fact of its custody of the baggage. And while the sleeping car company's liability is predicated on negligence, yet in both cases the same rule as to the extent of the liability should govern. The reasons underlying the limitation of a common carrier's liability to money necessary for the payment of the journey undertaken are first that no additional compensation is made for the transportation of money in excess of such sum or for the increased risk incurred, and second, the justice of protecting the carrier against fraudulent and collusive claims that might be foisted upon him by dishonest and unscrupulous travelers In our opinion, the reasonable and just rule is where money is lost by the occupant of a berth in a sleeping car through the negligence of the company without any contributory fault on his part, the amount of the recovery is limited to such sum as under the particular circumstances of each case, is reasonably necessary to defray the expenses of his trip, taking into consideration his station in life, the length, duration and purpose of his journey as well as the probable emergencies that may be expected to arise en route."

§ 1951. Goods of which passenger is not the owner.Where goods of which a passenger is not the owner are checked by him as baggage, he may, for the purposes of an action against the carrier to recover damages for an injury to such goods, be treated as the owner where he is in fact liable to the actual owner thereof for any loss or damage to them.33 "While it is true that a carrier cannot be made liable for the goods of another than the passenger or a member of his family traveling with him, which may be included in the passenger's baggage, yet the facts in this case tend to show that although the goods belonged to the wholesale merchants, by an agreement

80 Citing Merrill v. Grinnell, 30 N. Y. 594.

32 Per Leventritt, J. See 4 Elliott on Railroads, sec. 1647.

33 Illinois Cent. R. Co. v. Matthews, 24 Ky. Law Rep. 1766; 72 S. W.

81 Citing Shearman & Redfield on Neg. (5th ed.) sec. 526; Hampton v. Pullman Pal. Car Co., 42 Mo. App. 302. 134; Blum v. Pullman Pal. Car. Co., 1 Flip. 500.