Missouri, K. & T. Ry. Co. of Texas v. Dement

• Decision Date: 16 January 1909
• Court: Texas Court of Appeals
• Parties: MISSOURI, K. & T. RY. CO. OF TEXAS et al. v. DEMENT.

115 S.W. 635

MISSOURI, K. & T. RY. CO. OF TEXAS et al. v. DEMENT.

Court of Civil Appeals of Texas.

January 16, 1909.

Appeal from Rains County Court; W. H. Clendenin, Judge.

Action by R. M. Dement against the Missiouri, Kansas & Texas Railway Company of Texas and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Coke, Miller & Coke, N. H. Lassiter, and B. M. McMahan, for appellants. W. W. Berzett, for appellee.

TALBOT, J.

This action was brought by appellee, Dement, against the appellants, the Chicago, Rock Island & Pacific Railroad Company and the Missouri, Kansas & Texas Railway Company of Texas, to recover the value of certain household goods shipped over their respective lines of railway and never delivered, and for damages alleged to have been sustained by reason of delay in the delivery of other household goods shipped over said roads at the same time. The petition alleged, in substance, that on the 28th day of April, 1907, plaintiff, R. M. Dement, delivered to the defendant Chicago, Rock Island & Pacific Railroad Company at Tucumcari, N. M., a lot of mixed household goods, consisting of beds, pillows, quilts, sheets, and wearing apparel for himself and family, also three enlarged pictures, a Bible and Testament, for transportation and delivery to himself at Emory, Tex.; that the goods were negligently delayed in shipment, and none of them delivered until May 21, 1907, when one bundle of bedding and six boxes of household goods were delivered to him at Emory, and on July 15, 1907, another bundle of bedding was delivered to him; that said goods were intended to be used by plaintiff and family in keeping house, and that by reason of the delay he was deprived of the use of his goods to his damage in the sum of $50; that at the same time and place he delivered to said defendant one box containing 22 bed quilts of the value of $5 each, and of the total value of $110, and three enlarged pictures, one the picture of a deceased wife of plaintiff, which could not be reproduced, of the value of $100, one the picture of plaintiff's wife's father and mother, and one the picture of plaintiff's wife's sister, which could not be reproduced, of the value of $200, one family Bible, containing plaintiff's family record, which could not be reproduced, of the value of $50, making a total amount of $510, for which he prayed judgment. Appellants answered by general demurrer, special exceptions, general denial, etc. Appellants' general demurrer and special exceptions to the petition were overruled by the court. A trial by jury resulted in a verdict and judgment in favor of the plaintiff against the defendant Chicago, Rock Island & Pacific Railroad Company for the sum of $132.75, and against the Missouri, Kansas & Texas Railway Company of Texas for the sum of $25. From this judgment both railway companies have appealed.

The first assignment of error complains of the court's action in overruling defendants' special exception to that portion of plaintiff's petition alleging that the box lost and not delivered contained enlarged pictures of the dead wife of plaintiff and of the father, mother, and sister of plaintiff's wife, which could not be reproduced. The objections urged to these allegations are, in substance, that it was not alleged that defendants had notice, when the box was received for shipment, that it contained such pictures; that if defendants, or either of them, were liable at all for the loss of said pictures, they were only liable for their intrinsic value, and not for any peculiar or sentimental value attached by plaintiff to them. We are of the opinion the allegations were proper as descriptive of the articles charged to have been lost, but that evidence of any value, under said allegations, other than their actual value to plaintiff was inadmissible. It seems to be well settled in this state that the measure of damages for the loss of articles which have no market value, and which cannot be replaced or reproduced, is the actual loss in money sustained by the owner by reason of his being deprived of such articles, and not any fanciful price that he might, for special reasons, place upon them. The plaintiff was not entitled to recover in this case the value placed by him upon the pictures or portraits in question, based alone upon sentiment, "the pretium affectionis, as it is styled." Railway Company v....