| Miss. | Jan 15, 1866
delivered the opinion of the Court.
The defendant in error filed her complaint, in the Circuit Court of Copiah county, to recover of the plaintiff in error,
To this complaint the plaintiff in error filed two answers, the first saying that he is not guilty of the wrong and injury alleged in the complaint, and the second denying the delivery to or receipt by him of the goods in the declaration mentioned, or any part thereof, to be carried and delivered, etc., as complained in the declaration.
Upon these issues there was a jury, and verdict for the defendant in -error, and a motion for a new trial, which was refused. The plaintiff in error excepted, and filed his bill of exceptions, and now prosecute his writ of error here,, to reverse the judgment below.
The first error assigned is that the court erred in refusing to exclude, on motion of the plaintiff in error, testimony tending to prove other damages than the value of the trunk and its contents.
The defendant in error offered to prove, as appears by the bill of exceptions, that she expended from one hundred to one hundred and seventy-five dollars for clothing, shoes, etc., t'o supply her immediate wants, occasioned by the loss of the trunk. To the introduction of this testimony plaintiff in error objected, the objection was overruled by the court, and testimony admitted. This was clearly erroneous. This is an action to recover damages for a breach of contract — -no special damages are alleged in the complaint. The value of the trunk and its contents (within the rule limiting their responsibility, and requiring the transportation of usual passengers’ baggage, by common carriers of such), is all that can be recovered in this form of action. To allow the defendant in error to recover for clothing, etc., to supply her immediate wants, and also for those that were lost, would be, to that extent, to charge the plaintiff in error double damages for the article so lost and replaced.
This was also erroneous, for the same reasons. The action is not in tort, but for a breach of contract, and the actual damage arising from the breach is the measure of recovery in this form of action.
The second assignment of error is that the jury were instructed that they might assess damages for attorneys’ fees, and assess exemplary as well as actual damages.
We have already seen that this was erroneous.
The third assignment of error is, that the court refused to instruct the jury that the defendants below were only responsible to a passenger for the loss of such reasonable amount of baggage, to include such articles as are necessary and convenient for the personal use of the passenger, and usual for persons traveling to take with them.
This instruction properly states the rule of law governing this case on that subject, and should have been, therefore, given as asked.
The fourth error assigned, it is needless to consider, as the refusal of the instruction could not possibly have prejudiced the defendant below, under the evidence in the record.
The fifth assignment of error has already been considered, under the first and second assignments.
The last ground of error relates to the refusal to grant a new trial.
It follows from what we have 'already said that a new trial should have been granted.
Let the judgment be reversed, cause remanded, and a ve/rm-e de novo awarded.
Handy, C. L, being interested as a stockholder in the railroad company, did not sit in this case.