47 La. Ann. 255 | La. | 1895
The opinion of the court was delivered by
The plaintiff brought this suit to recover the sum of
It was the duty of plaintiff to protect herself against the wrongful act of the defendant. The opportunity was offered her to protect herself against the consequences of a walk to Burke Station, without expense to herself. She declined the proffered assistance, and she can not recover from the defendant, conceding that she was injured by the walk to Burke Station. Tardos vs. Railroad Co., 35 An. 15.
In Beers vs. Board of Health, 35 An. 1132, it was said: “The authorities agree that after a wrong has been committed the damaged party shall not increase it, and that if he does he shall have no right to complain for loss or injury sustained in consequence of his wilful acts, of commission or omission.”
The walk from Cade to Burke was not necessary for protection after the breach of contract in not putting her off at Burke Station. In Warren vs. Stoddart, 105 U. S. 229, the law applicable to the facts in this case is thus stated: “The rule is that where a party is entitled to the benefit of a contract, and can save himself from a loss arising from a breach of it at a trifling expense, or with reasonable exertions, it is his duty to do it, and he can charge the delinquent with such damages only as with reasonable endeavors and expense he could not prevent.” Wicker vs. Hoppock, 6 Wallace, 94; Miller vs. Mariner’s Church, 7 Me. 51; Russell vs. Butterfield, 21 Wendell,
The damages for the breach of the contract in not putting the plaintiff off at Burke Station must be controlled by Art. 1934, Civil Code. There was no designed breach of the contract from motives of interest or ill will. The plaintiff can, therefore, recover only the actual pecuniary loss she has sustained, unless the facts bring this case within paragraph three of said article, which says that “the general rule is that damages are the amount of the loss the creditor has sustained or the gain of which he has been deprived, yet there are cases in which the damages may be assessed without calculating altogether on the pecuniary loss or the privation of pecuniary gain to the party. Where the contract has for its object the gratification of some intellectual enjoyment, whether in religion, morality or taste, or some convenience or other legal gratification, although these are not appreciated in money by the parties, yet damages are due for their breach; a contract for a religious or charitable foundation, a promise of marriage or an engagement for a work of some of the fine arts, are objects and examples of this rule.”
This article manifestly applies to contracts entered into between the parties in reference to some religious or charitable object, promise of marriage, or some work of art. In plaintiff’s brief it is stated, “ It may properly be said that when plaintiff bought her ticket and entered the defendant’s car to be carried safely to Burke Station, pleasure of visits to friends necessarily entered into the contemplation of the parties.” It would be an unreasonable construction of the contract of carrying passengers that the defendant company should know the objects and purposes of each passenger boarding the train, and an implied contract should spring from such imputed knowledge. The contract was to carry the plaintiff safely to Burke Station, and there put her off with safety to her person and effects she was allowed to carry as baggage.
The defendant company \iolated this contract. Under the laws of this State no damages, appreciable in amount, can be assessed for a violation of a contract without some pecuniary loss.
The plaintiff has failed to show definitely the amount of pecuniary loss she has sustained.
There was, however, a violation of the contract, to the extent that she was put to some inconvenience, and there was a loss of
While the article of the Code says, in contracts other than for the payment of money the damages shall be such as were contemplated by the parties, when there is no bad faith, this does not require the plaintiff, in order to obtain judgment for the violation of the contract, to prove actual pecuniary damage. If inconvenience to the plaintiff and loss of time have been proved, and there has been no inquiry as to actual damage, or none appears on inquiry-, there is still some practical expression as to technical injury required of the court for compensatory damages. In default of proof of actual damages, damages by implication remains for the technical violation of the contract, when facts have been shown which would authorize the assessment of an appreciable amount in damages if proved. In such cases the amount is inappreciable, and is given to save costs to plaintiff.
We know of no authority here that would justify us in assessing punitory damages in the absence of bad faith in actions arising ex ■contractu.
The judgment appealed from is excessive. Judgment for nominal -damages will be allowed, which are fixed at three dollars.
It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to give the plaintiff three dollars damages. In other respects it is affirmed, plaintiff to pay costs of .appeal.
Rehearing refused.