between them and the appellee, he had such an interest in them, by reason of his being responsible to them for their loss or damage, and required to replace them in such event, that they may fairly be treated as his for the purposes of this action. The damage fell upon him; they were being carried for him; he was the passenger." It has generally been decided, however, that there can be no recovery from a carrier for loss or injury to goods of a third person, of which the passenger is not the owner and which are carried in his trunk without the knowledge of the carrier.

35

§ 1952. Loss of or injury to baggage—Remote damages, etc.—Evidence.-Special damage for the loss of profits and earnings which might have been made by the plaintiff in an action by a passenger on a steamboat against the carrier for the loss of a set of dentist's instruments cannot be recovered, it being declared that in such an action only such damages as were contemplated or might reasonably be supposed to have entered into the contemplation of the parties are recoverable.36 Nor can there be a recovery by a passenger on a railway train of the value of costly merchandise carried in his trunk and intended for sale or for samples to effect sales; nor should there be an allowance of damages for inconvenience due to the fact of the passenger having her entire wardrobe in the trunk which was carried as baggage and lost; nor for worry and sickness of the passenger in consequence of the loss; 30 nor for mental distress. And testimony should not be admitted as to expenditures by the plaintiff in acquiring similar property in place of that lost." And it has been decided that there can be no recovery for expenses incurred by the plaintiff

34 Per O'Rear, J.

40

35 4 Elliott on Railroads, sec. 1660. 36 Brock v. Gale, 14 Fla. 523; 14

Am. Rep. 356, and note, 362.

37 Simpson v. New York, N. H. & H. R. Co., 16 Misc. R. (N. Y.) 613; 38 N. Y. Supp. 341.

38 Wiegand v. Central R. Co., 75 Fed. 370; 5 Am. & Eng. R. Cas. N. S. 61; Houston, E. & W. T. Ry. Co.

38

37

v. Seale (Tex. Civ. App. 1902), 67 S. W. 437.

39 Wiegand v. Central R. Co., 75 Fed. 370; 5 Am. & Eng. R. Cas. N. S. 61. 40 Houston, E. & W. T. Ry. Co. v. Seale (Tex. Civ. App. 1902), 67 S. W. 437. 41 Wiegand v. Central R. Co., 75 Fed. 370; 5 Am. & Eng. R. Cas. N. S. 61; Merrill v. Pacific Transfer Co., 131 Cal. 582; 63 Pac. 915.

in looking after baggage which has been lost." Again, where a passenger seeks to recover damages for loss of baggage, the burden of proof is on him to show a delivery of such baggage to the carrier.43

45

§ 1953. Delay in delivery of baggage.—The measure of damages for delay in the delivery of baggage is the value of its use to the passenger during the period of such delay." And it has been decided that perishable articles, such as fruit, are not baggage when placed by a passenger in his trunk and that damages are not recoverable for injuries to clothing in such trunk caused by the rotting of the fruit, owing to delay by the carrier in the delivery of the trunk. And a carrier cannot by stipulation relieve itself from liability for loss of a passenger's effects or baggage which is due to its own negligence." It has, however, been declared that in order to bind a passenger by such a stipulation in his ticket, his attention must have been called thereto," or the ticket must have been received by him under such circumstances as to show that when he purchased the same he assented to the condition or restriction. 48 Such a stipulation must also be reasonable.

40

1954. Carrying baggage past station-Exemplary damages. Where baggage which is to be delivered to a passenger at a certain station is wrongfully carried past such station it has been determined that the jury may, where they believe that such act was a wilful one or committed with negligence of

42 Provencher v. Canadian Pac. R. Co., Montreal L. Rep. 5 Super. Ct. 9.

43 Lustig v. International Nav. Co., 38 Misc. R. (N. Y.) 802; 78 N. Y. Supp. 885.

44 Gulf, C. & S. F. Co. v. Vancil, 2 Tex. Civ. App. 427; 21 S. W. 303, holding that a verdict for $125 for a delay of a month, whereby a passenger was greatly inconvenienced was not excessive; Texas & P. R. Co. v. Douglas (Tex. Civ. App. 1895), 30 S. W. 487. See 4 Elliott on Railroads, sec. 1660.

45 Georgia R. Co. v. Johnson, 113 Ga. 589; 38 S. E. 954.

46 Voss V. Wagner Pal. Car Co., 16 Ind. App. 271; 43 N. E. 20; Toledo & O. C. R. Co. v. Ambach, 10 Ohio C. C. 490; 3 Ohio Dec. 372; Ward v. McNeill, Rap. Jud. Quebec, 11 C. S. 501. See sec. 1955, post.

47 Wiegand v. Central R. Co., 75 Fed. 370; 5 Am. & Eng. R. Cas. N. S. 61.

48 Ranchau v. Rutland R. Co., 71 Vt. 142; 43 Atl. 11; 14 Am. & Eng. R. Cas. N. S. 416.

49 The New England, 110 Fed. 415.

such a character as to indicate a wanton disregard of the rights of others award exemplary damages to the passenger.50

§ 1955. Stipulations limiting liability for loss of baggage. Stipulations limiting the liability of a carrier for loss of a passenger's baggage have in many cases been sustained as binding upon the passenger.51

60 Pittsburg, C. C. & St. L. Ry. Co. | App. 8; 2 Mo. App. Rep. 576; The v. Lyon, 123 Pa. St. 140; 16 Atl. 607, Stella, 81 Law T. (N. S.) 235; Pratt 10 Am. St. R. 517; 2 L. R. A. 489; v. South Eastern R. Co. [1897], 1 Q. 23 N. C. 69. B. 718; 66 L. J. Q. B. N. S. 418. As to such stipulations generally, see 4 Elliott on Railroads, sec. 1661. See sec. 1953, ante.

51 The Kensington, 94 Fed. 885; 36 C. C. A. 533, aff'g 88 Fed. 331; Aiken v. Wabash R. Co., 80 Mo. 127

2017

CHAPTER LXVIII.

CARRIERS OF FREIGHT.

§ 1956. Delay in delivery-Natural and proximate results -Special damages-Notice of.—Where the delivery of goods is negligently delayed by a carrier there may, in an action for a

breach of the contract, be a recovery of such damages as are the natural and proximate results of its acts and for such as reasonably might have been expected to be within the contemplation of the parties at the time of entering into the contract as the probable result of a breach. And where the carrier has notice of the fact that a delay in the delivery of goods will result in an unusual loss or some special damage to the shipper, there may be a recovery of the actual damages sustained where the notice was of such a character that it will be presumed that the carrier contracted with reference thereto. So where the carrier was informed that the contract under which pews were shipped to a church, imposed a penalty for delay beyond a certain date and the carrier was directed to make immediate shipment of the same, it was decided that there might be a recovery of the amount of forfeiture which had been paid by the shipper under the contract. And where a popcorn wagon was received by a carrier for shipment with knowledge of the fact that it was intended for use on a certain day, it was held that there might be a recovery for the loss of profits on such day where the carrier negligently delayed delivery of the same. And parol evidence of notice by the shipper to the carrier of peculiar circumstances surrounding the shipment, requiring prompt delivery, as affecting the measure of damages, is not within the rule rejecting parol evidence to vary the terms of a bill of lading. But for a delay of only a few days in the delivery of a package containing an order book, with nursery stock, it was decided that the recovery would be limited to nominal damages where it did not appear that the carrier had notice that the shipment included the order book or that it was necessary to the delivery of the stock to the customers or that any actual damages had resulted from the delay. And where there was a delay in the delivery of medicine there cannot be a recov

5

1Swift River Co. v. Fitchburg R. Co., 169 Mass. 326; 47 N. E. 1015; 16 Am. St. R. 288; 8 Am. & Eng. R. Cas. N. S. 512; Vicksburg & M. R. Co. v. Ragsdale, 46 Miss. 458.

Seating & C. Co., 104 Tenn. 568; 58
S. W. 303.

4 Gulf, C. & S. F. R. Co. v. Comp-
ton (Tex. Civ. App.), 38 S. W. 220.
5 Central Trust Co. v. Savannah

2 Central Trust Co. v. Savannah & & W. R. Co., 69 Fed. 683.

W. R. Co., 69 Fed. 683.

6 Wells-Fargo & Co. v. Battle, 5

Illinois Cent. R. Co. v. Southern Tex. Civ. App. 532; 24 S. W. 353.