was not transferable, and, without being given reasonable time to produce his ticket, was required to leave the train.2 And again, in a case of wrong. ful expulsion, it was held error to instruct the jury that actual damages only could be recovered, where the facts showed that the weather was rough, and that although the passenger might have been put off near his home, he was expelled at the next station, which was closed. In a recent case in Florida, under instructions that if the passenger was violating no reasonable rule he was entitled to recover damages, either compensatory or exemplary, and that he could only recover exemplary damages for acts accompanied with maliciousness or willful wrong, and not for injuries received by reason of his own violent resistance, it was held that exemplary damages could not be awarded, since it appeared in evidence that the company had established a rule prohibiting the employees of a rival steamship line from wearing their uniform on the cars of the company; that plaintiff bought a ticket and went upon the cars, expecting and hoping to be expelled, for the purpose of instituting an action for damages, and that he was expelled, only such force, however, being used as was necessary to overcome his violent resistance, and although he was compelled to walk about four miles to a station, it was held that a verdict of five thousand dollars in his favor should have been set aside.* 1 Hicks v. Hannibal etc. R. R. Co. 68 Mo. 329. 2 Louisville & N. R. R. Co. v. Maybin (1889), - Miss. 3 Hall v. South Carolina R. R. Co. (1888) 28 S. C. 261 4 South Florida R. R. Co. v. Rhodes (Fla. 1889), 37 Am. & Eng. R. R. Cas. 100. BEACH ON RAILWAYS-96 § 895. Punitive damages for expulsion without violence or insult.-Punitive damages may be awarded for the illegal expulsion of a passenger even though actual force was not employed.' In the case last cited, it was said by the court, that the passenger loses nothing by not resisting and not requiring force to eject him. On the contrary, he is right to yield to authority and throw himself for redress upon the law. "Of course, rude and violent conduct would be a circumstance to demand increase of damages against the company, but more than actual damage is recoverable for the act of putting off by the mere moral force of authority." But exemplary damages are not recoverable by a passenger tendering a first-class ticket, for a civil removal to an inferior car, where men unaccompanied by women are required by the rules of the company to ride.3 1 The Georgia Railroad v. Homer, 73 Ga. 251. 2 The Georgia Railroad v. Homer, 73 Ga. 251, 257. 3 Holmes v. Carolina Central R. R. Co. 9 N. C. 318. Cf. cases in point cited in § 855, supra. § 896. Mitigation of damages.Where a passenger offers a ticket, as to the validity of which there may be a reasonable dispute, and which the conductor refuses, and the passenger, although able to do so, yet obstinately declines to pay the additional fare demanded, and insists upon being ejected from the train, such fact should be considered by the jury by way of mitigation of damages, and no compensation should be allowed for wounded feelings, even though the conductor proves to have been mistaken. And the company may introduce evidence, such as the subsequent declarations of 1 2 3 the plaintiff, to show that his object in bringing about the expulsion was to make money by suing the company, or to test the legality of its rules. The defendant may show, also, that all the plaintiff's injuries were the result of his resistance, and that no more force was used in expelling him than the passenger himself rendered necessary. Again, in mitigation of exemplary damages for its servants carrying weapons, the company may show that on previous occasions the train had been boarded in: that vicinity by desperadoes. 1 Hail v. Memphis & C. R. R. Co. 15 Fed. Rep. 57; S. C. 9 Fed. Rep.. 585; Gibson v. East Tennessee, V. & G. R. R. Co. 30 Fed. Rep. 904. 2 Cincinnati etc. R. R. Co. v. Cole, 29 Ohio St. 126; 23 Am. Rep. 723, where the passenger knew that the company had been charging illegal rates and expected to profit thereby. 3 South Florida R. R. Co. v. Rhoads (Fla. 1889), 37 Am. & Eng. R. R. Cas. 100. 4 Wright v. California Central R'y Co. 78 Cal. 370; Atchison, T. & S. F. R. R. Co. v. Gants (1888), 38 Kan. 608. 5 Chicago etc. R. R. Co. v. Boger, 1 Bradw. (Ill.) 472. § 893. § 899. 900. CHAPTER XXXV. OF BAGGAGE. § 897. General considerations. Of the beginning of the carrier's liability for baggage. The same subject, continued. § 902. Knowledge of contents as affecting liability of carrier. § 903. The limit of weight and value-Extra compensation. § 904. Of baggage checks-Connecting carriers. § 905. Liability of connecting carriers-The initial carrier. § 906. § 907. § 998. Liability of sleeping-car companies for passengers' effects. The same subject, continued-The intermediate and terminal carriers. Of the passenger's retention of custody. § 909. The same subject, continued. § 910. The carrier's liability for delay in delivery of baggage-Measure of damages-Exemplary damages. § 911. Of notices and stipulations as affecting liability for baggage. § 912. Of the termination of the carrier's liability for baggage. The earlier § 897. General considerations. cases, in the law of common carriers, held that they were not insurers with respect to the personal effects or luggage of their passengers, and that no liability attached to them for its loss or injury, unless a distinct price was paid for its transportation.' The modern rule, however, is that the contract to carry the passenger himself, does, without additional compensation, render the company liable for the safe and prompt transportation of such of his effects as may be necessary to his personal use and convenience on the journey; and the burden 5 4 6 is upon the carrier to prove that any loss or injury was not due to the fraud or negligence of its servants. Where a railway company is sued for damages for "breaking a trunk," and for a detention of "goods checked," evidence is admissible of damage to any property properly included under the term baggage. But in an action by an emigrant against a steamship company for lost baggage, the testimony of a custom-house inspector as to the value of the baggage which emigrants of the same class and nationality as plaintiff generally carried, is incompetent to show the probable value of plaintiff's baggage. A lien exists in favor of a carrier on the baggage of its passengers not in their immediate use or actual possession. But, although baggage has been delivered to it and checked, it has no right to retain custody thereof, if its owner, upon being required to pay an additional charge, declines to do so, and demands its return. And where, in such a case, the baggage was retained by the company, and was destroyed by fire, this was held a convers on, a recovery on which was not waived by the party having afterward accepted an order for the baggage from the president of the company. The passenger going upon the same train with his baggage, is not essential to render the company liable for its safe transportation In Virginia, a statutory penalty is imposed upon railway carriers for failing to transport the baggage of their passengers." But it is held that, since statutory penalties are not exclusive of damages at common law, unless expressly stated to be in lieu thereof,10 a passenger may in that State recover the actual amount of 8 7 |