94

The measure of damages, too, is the same as against carriers of goods. For loss of baggage, the measure is ordinarily the value of the baggage to the passenger at his destination when the baggage should have arrived." For injury to his baggage, the passenger recovers the difference between what the baggage would have been worth at his destination, had it been uninjured, and what it is worth in its injured condition. For delay, the value of the use of the baggage to the passenger during such delay forms the measure of damages.97

96

As to parties, the proper plaintiff, in an action pertaining to baggage as such, is the passenger.98 This, of course, is different from actions against carriers of goods. The pleadings, of course, should set out the facts showing the relation of passenger and carrier, the duty arising therefrom, its breach, and the consequent damage." Such pleadings, too, should be consistent with the plaintiff's theory of the case, and should harmonize with the evidence.100

94 See ante, §§ 158-163.

95 Turner v. Southern Ry., 75 S. C. 58, 54 S. E. 825, 7 L. R. A. (N. S.) 188; Galveston, H. & S. A. R. Co. v. Fales, 33 Tex. Civ. App. 457, 77 S. W. 234; Fairfax v. New York Cent. & H. R. R. Co., 73 N. Y. 167, 29 Am. Rep. 119; Lake Shore & M. S. Ry. Co. v. Warren, 3 Wyo. 134, 6 Pac. 724. In Brock v. Gale, 14 Fla. 523, 14 Am. Rep. 356, a dentist, whose instruments were lost by the carrier, was denied special damages in the shape of profits and earnings he might have made, had the instruments not been lost.

96 Missouri, K. & T. R. Co. of Texas v. Hailey (Tex. Civ. App.) 156 S. W. 1119; Wall v. Atlantic Coast Line R. R., 71 S. C. 337, 51 S. E. 95; St. Louis & S. F. R. Co. v. Dickerson, 29 Okl. 386, 118 Pac. 140.

97 Texas & N. O. R. Co. v. Russell (Tex. Civ. App.) 97 S. W. 1090; Conheim v. Chicago Great Western R. Co., 104 Minn. 312, 116 N. W. 581, 17 L. R. A. (N. S.) 1091, 124 Am. St. Rep. 623, 15 Ann. Cas. 389; Ford v. Atlantic Coast Line R. Co., 8 Ga. App. 295, 68 S. E. 1072; Brooks v. Northern Pac. R. Co., 58 Or. 387, 114 Pac. 949. In an action against a carrier for delay of the samples of a salesman traveling on commission, he could not recover profits lost, because he was unable to make sales during the delay; such profits being speculative and contingent, and incapable of being proved with the certainty required to constitute recoverable damages. St. Louis & S. F. R. Co. v. Lilly, 1 Ala. App. 320, 55 South. 937. Punitive damages, in an action for delay in delivery of baggage, are recoverable where the negligence is so gross and reckless as to assume the nature of wantonness and willfulness. Webb v. Atlantic Coast Line R. Co., 76 S. C. 193, 56 S. E. 954, 9 L. R. A. (N. S.) 1218, 11 Ann. Cas. 834.

98 See ante, § 199.

99 See Cleveland, C., C. & St. L. Ry. Co. v. Tyler, 9 Ind. App. 689, 35 N. E. 523; Ranchau v. Rutland R. Co., 71 Vt. 142, 43 Atl. 11, 76 Am. St. Rep. 761; Hubbard v. Mobile & O. R. Co., 112 Mo. App. 459, 87 S. W. 52; Southern Pac. Co. v. Maloney, 136 Fed. 171, 69 C. C. A. 83.

100 Montgomery & E. Ry. Co. v. Culver, 75 Ala. 587, 51 Am. Rep. 483.

SUPPLEMENT

THE FEDERAL INTERSTATE COMMERCE ACT, THE SAFETY APPLIANCE ACTS, AND THE EMPLOYERS' LIABILITY ACTS

So important are the acts affecting interstate commerce that it is deemed advisable to add a brief supplement dealing with them. To reproduce the text of these acts, or even to treat them in detail, would require more space than the scope of this book would permit. All that is attempted, then, is a brief summary of the most striking provisions of three of the most important of these acts: The Interstate Commerce Act, the Safety Appliance Acts, and the Employers' Liability Acts.

THE INTERSTATE COMMERCE ACT1

Introductory

Constitutional warrant for the Interstate Commerce Act is found in the United States Constitution (article 1, § 8, par. 3), which gives Congress the power "to regulate commerce with foreign nations, among the several states, and with the Indian tribes."

The original Interstate Commerce Act was passed in 1887, but this act has been amended by the acts of 1889, 1893, 1903, 1906, 1908, and 1910. Of these amendatory acts, the most important were the Hepburn Act of 1906, and the Mann-Elkins Act of 1910. The act is discussed as it now stands, with all of these amendments. The principal objects of the act, according to the United States Supreme Court, were "to secure just and reasonable charges for

1 For an excellent discussion of the Interstate Commerce Act, see Judson on Interstate Commerce (second edition), from which generous assistance has been received in preparing this brief supplement. For a compilation of the act, with its amendments and supplementary provisions down to December 31, 1913, with full historical and explanatory annotations, see U. S. Comp. St. 1913, §§ 8563-8604.

2 Interstate Commerce Commission v. Baltimore & O. R. Co., 145 U. S. 263, 12 Sup. Ct. 844, 36 L. Ed. 699.

transportation, to prohibit unjust discriminations in the rendition of like services under similar conditions, to prevent unreasonable preferences to persons, corporations, or localities, to inhibit greater compensation for a shorter than for a longer distance over the same line, and to abolish combinations for pooling freights."

A brief summary of the more important provisions of the act is given under the sections of the act in which such provisions are found.

Section 1. Scope of Act. Passes Prohibited. Commodities Clause The first section of the act limits its application to common carriers and interstate or foreign commerce. A broad definition of common carriers is given, however, and within this definition are included oil pipe lines, sleeping car companies, express companies, interstate electric railroads, and telegraph, telephone, and cable companies. But the act does not apply to transportation entirely by water.'

This section then provides that the carrier's charges must be just and reasonable, and requires, too, that his classifications, regulations, and practices shall be subjected to the same test. Such a provision is practically only an affirmation of the common law. Section 1 also prohibits "any free ticket, free pass or free transportation for passengers," subject to a long list of specific exceptions. Both giving and using a prohibited pass are made misdemeanors. In this connection should be considered the qualifying provisions of section 22 of the act.

Under the celebrated "commodities clause," the carrier is forbidden to transport "any article or commodity" (timber and its manufactured products excepted), not intended for the carrier's use, "manufactured, mined or produced by it, or under its authority, or which it may own in whole or in part, or in which it may have any interest direct or indirect." The Supreme Court upheld the constitutionality of this clause, and has also had occasion to pass on its evasion by the carrier's holding stock in the producing corporation.

5

This section concludes by requiring the carrier to make switch

8 Willson v. Rock Creek Ry. Co. of Dist. of Columbia, 7 Interst. Com. Com'n R. 83; Boyle v. Great Falls & Old Dominion R. Co., 20 Interst. Com. Com'n R. 232; Judson, Interstate Commerce (2d Ed.) § 143.

4 Cary v. Eureka Springs Ry. Co., 7 Interst. Com. Com'n R. 286.

5 United States v. Delaware & Hudson Co., 213 U. S. 366, 29 Sup. Ct. 527, 53 L. Ed. 836,

6 United States v. Delaware & Hudson Co., 213 U. S. 366, 29 Sup. Ct. 527. 53 L. Ed. 836; United States v. Lehigh Val. R. Co., 220 U. S. 257, 31 Sup Ct. 387, 55 L. Ed. 458.

connections with lateral lines and private tracks, when this is economical and practicable.

Section 2. Discrimination in the Carrier's Charges

Section 2 defines and forbids any unjust discrimination in the carrier's charges. If such discrimination is real, it makes no difference whether it be done by "special rate, rebate, drawback or other device." Whatever lack of clearness there may be as to the common law of discrimination, this section is definite and explicit in its sweeping prohibitions. Such a discrimination occurs when more is charged one person than is charged another for the "transportation of a like kind of traffic under substantially similar circumstances and conditions." The practical application of the italicized phrase, the key of the whole section, has however, given rise to no little difficulty.

Section 3. Discriminatory Preferences and Advantages

Discrimination is also the subject of section 3, prohibiting "any undue or unreasonable preference or advantage to any particular person, company, firm, corporation or locality." It will readily be seen that the scope of this section is far wider than that of section 2. While section 2 is confined to discrimination in rates, section 3 covers any form of undue preference or unreasonable preference by the carrier in favor of persons, firms, corporations, or localities. Within this prohibition would fall car service,' the operation of stations and warehouses, side tracks, and similar connections. Section 4. Long and Short Haul

This section contains the famous "long and short haul provision" which makes it unlawful for the carrier to charge "any greater compensation in the aggregate for the transportation of passengers, or of like kind of property, for a shorter than for a longer distance over the same line or route in the same direction, the shorter being included within the longer distance, or to charge any greater compensation as a through route than the aggregate of the intermediate rates subject to the provisions of this act." By the act of 1910, the qualifying words "under substantially similar circumstances and provisions" were stricken out, thus broadening the application of the provision against the carrier. This fact must be considered in connection with cases decided before this amendment. The Interstate Commerce Commission may, on application from a carrier, "prescribe the extent to which such des

7 See Judson, Interstate Commerce, § 250. See Judson, Interstate Commerce, § 249. • See Judson, Interstate Commerce, § 262.