108 Ark. 432 | Ark. | 1913
(after stating tbe facts). Counsel for the defendant first insist that what is a reasonable time for the transportation of baggage, is always a question for the jury, and that the court erred in telling the jury, as a matter of law, that the delay in the transportation of-the baggage was caused by the negligence of the defendant., We do not agree with them in thi,s contention. The undisputed evidence shows that the plaintiff told the agent, when he checked the baggage, that he was going to Hope to get married, and would need the trunk as soon as he got there. He checked the trunk in ample time for the agent to have placed it on the train on which plaintiff embarked. The plaintiff arrived at Hope at about 11:30 o ’clock on the- morning of the 10th, and his trunk arrived there at 7:00 o ’clock on the evening of the 11th. During this time, four regular passenger trains had passed between the two places, and the baggage could have been transported on either of these trains. But one reasonable inference can be drawn from these facts, and that is, that the defendant was negligent in the transportation of the plaintiff’s baggage.
Under the instructions of the court, the plaintiff was allowed to recover for the inconvenience, hardship and mortification suffered by him on account of the delay in the transportation of his baggage. This was to allow him to recover for mental anguish unaccompanied by physical injury. In the case of the Chicago, Rock Island & Pacific Ry. Co. v. Whitten, 90 Ark. 462, the court held that in an action to recover damages for injury to baggage, the plaintiff could not recover any damages for alleged men-' tal suffering, because he had not suffered any physical injury. The holding of the court in that case is conclusive here, and the plaintiff was not entitled to recover damages, because of the inconvenience and mortification he -suffered on account of the delay in receiving his baggage. Neither was he entitled to recover the value of the articles of clothing purchased by him. They were articles that could be worn on other occasions by a person of his station in life, and, in the absence of testimony to the contrary, it must be presumed that he received value for the money he paid out for this purpose. The measure of.a passenger’s damage for a carrier’s delay in forwarding Ms trunk is the value of the use of the property during the time of the delay. Elliott on Railroads (2 ed.), vol. 4, sec. 1662-a; Hutchinson on Carriers (3 ed.), vol. 3, § 1366; 6 Cyc., page 676; Texas & N. O. R. Co. v. Russell (Tex. Civ. App.), 97 S. W. 1090; Mexico Central Ry. Co. v. DeRosear (Tex. Civ. App.), 109 S. W. 949.
Plaintiff was entitled to recover the expenses he was put to in undertaking to locate his trunk. See authorities supra. He was also entitled to recover the penalty. See General Acts of 1911, page 249.
■ It follows that for the errors indicated, the judgment must he reversed, and, inasmuch as under the undisputed evidence plaintiff was entitled to recover the. sum of five dollars for reasonable expenses in undertaking to locate his baggage, judgment will he entered here for that amount and for the $100 penalty assessed against the defendant by the jury.
