Louisville & N. R. Co. v. Stewart

• Decision Date: 11 February 1901
• Citation: 29 So. 394,78 Miss. 600
• Parties: LOUISVILLE & NASHVILLE RAILROAD COMPANY v. TABITHA C. STEWART
• Court: Mississippi Supreme Court

29 So. 394

78 Miss. 600

LOUISVILLE & NASHVILLE RAILROAD COMPANY v. TABITHA C. STEWART

Supreme Court of Mississippi

February 11, 1901

FROM the circuit court of Hancock county. HON. THADDEUS A. WOOD Judge.

Mrs Stewart, the appellee, was the plaintiff, and the railroad company was defendant in the court below. The plaintiff shipped a car load of furniture and household effects including several oil portraits, from Bay St. Louis Mississippi, to New Orleans, Louisiana. The furniture was badly damaged and the portraits destroyed when it reached New Orleans, and the plaintiff sued to recover damages because thereof. On the trial she made out her case except as to the portraits. The state of the evidence touching their value is stated in the opinion of the court. Plaintiff recovered a judgment for a sum so large that it necessarily embraced a considerable sum for the portraits, and the defendant appealed to the supreme court.

Judgment affirmed.

Gregory L. Smith, for appellant.

Plaintiff's attorney was allowed, against the objection of defendant, to ask plaintiff, when she was upon the stand as a witness, the following question: "What were those portraits worth to you by virtue of their association--the fact that they were portraits of your husband's ancestors--members of your family?" The defendant duly excepted to this ruling of the court, and subsequently made it one of the grounds of its motion for a new trial.

Where damages to property that has no market value are sought to be recovered, the measure of such damages is based, as a general rule, upon the actual value thereof to the owner, taking into consideration its cost, the practicability of repairing the damage and such other consideration as in the particular case affects its value to the owner. This doctrine has been applied to the recovery of damages for injury or loss of family portraits in several cases, and the doctrine, as found in all of the text-books, is based upon these cases. The examination of these cases will show that in none of them has it been held that a witness may testify directly as to what such value is. On the contrary, such value must be proven by showing the cost, and whether the damage can be repaired and the expense thereof, and such other facts as may throw light upon the peculiar value of the portraits to the owner, and from these facts the jury must determine what the value is. A statement of the general doctrine will be found in Hutchinson on Carriers, sec. 770; 2 Rapalje & Mack's Dig. of Ry. Cases, p. 301, par. 797. And the cases upon which the doctrine as applicable to portraits is based are Green v. Boston & Lowell R. R. Co., 128 Mass. 226; Houston & T. C. R. R. Co. v. Burke, 55 Texas, 323; Mather v. American Exp. Co., 138 Mass. 57.

A. Y Harper, George S. Dodds, and...