Jacob Brook, Appellant, vs. Alvin D. Gale, Appellee, 14 Fla. 523

RANDALL, C. J., delivered the opinion of the court. The first error assigned is, that the court refused to grant a continuance on defendant’s motion, made upon the ground, that the time of holding the court was not a legal terra, because a term was appointed by the law to be held on the same day in St. Johns county and Duval county in the same circuit. If the ground of the motion was valid, to-wit : that there was no legal term being held, the court could not act at all, and therefore could not make an order of continuance. If the gi’ound of the motion was not valid, the continuance was properly refused.

It is true that the court could not sit in both counties at the same time, but it does not follow that it could not sit in one county. The court was sitting; in Duval, and was therefore not sitting in St. Johns. The Judge held the term in Duval at the time named in the law for that purpose, as we think he might lawfully do. Second. The appellant says the court erred in overruling defendant’s demurrer to the second count in plaintiff’s declaration, and third, in admitting illegal and irrelevant testimony under said second count.

The question here presented is, whether the plaintiff could, in this action against a common carrier for the loss of his baggage, he being a traveller upon the defendant’s steamboat, recover damages for the loss of the profits which he might have made in the practice of his trade or profession, if his baggage, including the implements of his trade, had not been lost.

The third exception arises upon the questions put by plaintiff’s counsel on the trial to the plaintiff as a witness in his own behalf, as to whether he was detained at Jacksonville in consequence of the loss, and what were his monthly receipts from his business at home, and whether he was prevented by the loss of his instruments from pursuing his profession and for what length of time. The court permitted the questions to be answered, notwithstanding defendant’s objections.

Witness answered that his receipts for several years had averaged three hundred dollars per month, or at least three thousand dollars per year ; that he was prevented by the loss of his instruments from pursuing his business to some extent for one month, and had never since been as well able to pursue his business for want of those instruments.

The law in such cases is laid down by Sedgwick in his book on the measure of damages as follows : “ On reviewing the whole subject, it seems to me that the language of the Louisiana Code expresses the true rule; and that it is no more than justice that a defendant in default should be compelled to make good the damages sustained by his breach ©f contract which were contemplated, or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract.” Under ordinary circumstances the damages flowing from a breach of contract to carry and deliver goods would be the value of the goods at the time of the loss and interest on the amount.

If the owner of the goods "would charge the carrier with any special damages, he must have communicated to the carrier all the facts and circumstances of the «ase which do not ordinarily attend the carriage or the peculiar character and value of the property carried, for otherwise such peculiar circumstances cannot be contemplated by the carrier. “ For (says the court in Hadley vs.

Baxendale., 9 Exch., 341,) had the special circumstances been known, the parties might have expressly provided .for the breach of the contract by special terms as to the damage in that case, and of this advantage it would be very unjust to deprive them. These principles are those by which we think the jury ought to be guided in estimating the damages arising out of any breach of contract.” And in Griffin vs. Colver, 16 N.

Y., 489, Judge Selden states it thus: “ The damages must be such as may fairly be supposed to have entered into the contemplation of the parties when they made the contract — that is, they must be such as might naturally be expected to follow its violation ; and they must be certain, both in their nature and in respect to the cause from which they proceed.” In the present case there is no room for pretense that the defendant contemplated that the plaintiff would sustain any damage beyond that which would follow the loss of any kind of baggage; i. e., the value of the goods and the expense of a brief detention in endeavoring to find them, with interest.

The defendant' cannot be chargeable for the loss of dentist’s tools beyond what he would be liable to pay any other passenger for the loss of any goods of like value, unless he has especially agreed to be responsible for other loss or damage.

Doctor Gale did not inform the defendant that he was a dentist; that his tools were set with diamonds and rubies, or that in case they should be lost he would be unable to pursue his avocation for six months or for one month ; and hence the defendant did not contemplate any such risk in carrying him as a passenger upon his steamboat, with his valuable baggage: The court therefore erred in overruling the defendant’s demurrer to the second count in the declaration, and in admitting testimony as to the probable earnings of the plain-, tiff as a measure of damages for the loss of the goods, and the court should have charged the jury in such manner as. to confine their inquiries upon this subject to the rule we have indicated. .

The fourth and fifth errors assigned are, that the court erred in its charge to the jury, and in charging the jury as requested by the plaintiff. It is unnecessary to elaborate upon these propositions. In examining the record we find that the Judge’s charge is in the main correct, except in its too general language as to the allowance of damages, already alluded to. It is not entirely proper, however, for the Judge to specify what particular articles of property, designating them by name, may be included in the term “ baggage,” as this comes very nearly to an argument and opinion upon the proofs in the case.

Eor instance, in giving the fourth instruction asked for by plaintiff to the jury, this language was used : “Thus a carpenter’s tools have been held suitable baggage for a carpenter, a surgeon’s instruments for a surgeon.” While it is true that courts have refused to set aside a finding of a jury to that effect, on the ground that “ it is for the jury to decide whether the articles contained in the plaintiff’s valise, for which payment is claimed, are such property as may. be deemed baggage,” (as the jury were instructed on the request of the defendant,) it is not proper for the court to suggest, by way of example, that which may influence the jury upon the question of fact they are to try.

The sixth error assigned is that the court refused to charge the jury, as requested by the defendant’s counsel. The instructions asked by the defendant’s counsel were given by the court, except the 4th, 5th, 6th and 7th, and of these, all except the 7th had already been given in substance. It is not error to refuse to repeat a charge already given.

The seventh instruction asked by the defendant’s counsel is in these words : “ If it appears that the valise in question contained jewelry or precious stones, or instruments set with gems, precious' stones, or gold, or other precious metals, or gold or silver plated or mounted instruments, and that no written notice of the character and value of the same was given to the master, clerk, agent or owner of defendant’s said steamboat, then defendant is not liable for the same as a carrier.” This was refused by the court. ’ It is insisted by the defendant that this instruction should have been given according to the provisions of the 69th

section of “

An act for the better security of life, <fcc.,” passed by the U. S.

Congress, and approved Feb. 28,1871’, which provides, “if any shipper or shippers of platina, gold, gold dust, silver, bullion or other precious metals, coins, jewelry, bills of any bank or public body, diamonds or other precious stones,” and other like articles enumerated, “ contained in any parcel or package or trunk, shall lade the same as freight or baggage on any boat or vessel, without at the time of such lading giving to the master, clerk, agent or owner of such boat or vessel receiving the same, a written notice of the true character and value thereof, and having the same entered on the bill of lading therefor, the master and owner or owners of said boat or vessel shall not be liable as carriers thereof.” 1 It seems clear, however, that this

section refers to property of the descriptions mentioned, sent by shippers of such goods in the common mercantile acceptation of the words shipper or shippers, who forward goods as freight or baggage under bills of lading, and that the act had in view the protection of the revenue of the United States', as well as the-protection of vessels against fraud and against the penalties-for violations of revenue laws. The language used does; not well apply to a passenger who carries in his trunk big; ordinary wearing apparel, ornaments and professional implements, however rare or valuable.

He is not a shipper,, and does not “ lade ” a vessel as a shipper, nor give or receive a bill of lading for his personal baggage, nor pay freight thereon, as does a shipper. We do not think the court erred in refusing to give the instruction.

The court charged the jury that “ all.articles, which it is-usual for persons traveling to carry with them, whether from necessity, convenience or amusement, fall within the term baggage.” And, “ that if it appears by the evidence, that the contents of the valisej or any portion of the same, 'were of a great or extraordinary value, for a person of 'plaintiff’s business and station in life, without notice of the same being given to defendant, he cannot be held liable for their loss.” And the court further charged that it is for the jury to decide what articles in the valise came within . the definition of baggage, and this last was given at the request of the defendant’s counsel.

The Supreme Court of Pennsylvania in McGill vs. Rowland, 3 Barr, 451, say that it is not obvious in what manner the court can restrict the quantity or value of the articles that may be deemed proper or useful for the purposes of travelling, because in the nature of things it is susceptible of no precise or definite riile ; and when there is an attempt to abuse the privilege, a court must rely on the intelligence and integrity of the •jury to apply the proper corrective.” (See Angell on the law of Carriers, sec. 115, et seg.) This, after all, is the correct rule for the determination of this case.

The jury must determine, as a question of fact, whether the articles contained in the plaintiff’s valise were the necessary and convenient articles of baggage of the plaintiff ás a traveller, according to his occupation and position in’ life, and. was their value a reasonable value of such articles to be carried as baggage, for the loss of which a common carrier should be held liable under the circumstances of the case. Any -apparent abuse by the jury, whereby gross injustice should be done, would of course be ■corrected by the court.

For the errors in the proceedings and trial herein mentioned, the judgment must be reversed, and anew trial ' granted. The defendant is entitled to judgment upon his demurrer to the second count in the declaration, Judgment reversed, and a new trial granted.