contracts to pay an attorney's fee (Reynolds v. Clark County, 162 Mo. 680, [63 S. W. 382]), or an architect's commission (Walker v. Lundstrom, 132 Mo. App. 367, [112 S. W. 1]), and the commissions of a real estate broker (Alderson v. Houston, 154 Cal. 1, [96 Pac. 884], Norman v. Vandenberg, 157 Mo. App. 488, [138 S. W. 47]), or contracts for the publication of advertisements (Star Publishing Co. v. Knosher & Co., 62 Wash. 215, [Ann. Cas. 1912D, 281, 34 L. R. A. (N. S.) 404, 113 Pac. 569]; McDermott v. De Meridor Co., 80 N. J. L. 67, [76 Atl. 331]; Ware Bros. Co. v. Cortland Cart &C. Co., 192 N. Y. 439, [127 Am. St. Rep. 914, 22 L. R. A. (N. S.) 272, 85 N. E. 666].)

In the last-mentioned case an advertiser desired to cancel its contract with a publisher under which the latter was to publish an advertisement once a month for twelve months for a certain sum to be paid when the contract was fully performed. The publisher refused to consent to the cancellation, and continued the publication for the entire period, and upon the advertiser declining to pay therefor, brought an action for the contract price. Upon the trial the plaintiff proved the contract and its performance, and rested. Thereupon the defendant produced evidence to the effect that it had canceled the contract, and rested. It was held that the contract was prima facie the measure of damages, and the rule applied that where a contract for future employment had been entered into and afterward revoked by the employer, in an action for breach of contract the damages are prima facie the amount of wages for the full term, and the burden of proof is upon the defendant to show facts in mitigation of damages. Commenting upon the conclusion arrived at in that case the court said: "In reaching the result above indicated we wish it understood that it is not our purpose to extend the rule beyond the facts found in this case. Nor is it our purpose to limit or impair the rule that in the breach of an ordinary contract for the manufacture of an article or the supplying of goods or merchandise, including that which is known as ordinary job printing, the damage is the difference between the contract price and the cost of the goods, merchandise, or manufactured article, in which the burden of showing the damage rests on the plaintiff. The distinguishing feature in this case, as we regard it, is that the publishing of an advertisement in a periodical

is the same as the publishing in a daily or weekly newspaper, which involves the investment of no additional capital or the use of any material other than the ink used and the paper upon which it is printed, and these articles are of such trivial value as not in our judgment to change the character of the contract from one for services to be rendered."

While the present case in some of its features is similar to the cases cited, it is more like an action for breach of contract for board or lodging (13 Cyc. 163), or for goods sold and delivered (Hellings v. Heydenfeldt, 107 Cal. 577, 585, [40 Pac. 1026]; Winans v. Sierra Lumber Co., 66 Cal. 61, [4 Pac. 952]), or to construct a tunnel (McConnell v. Corona City W. Co., 149 Cal. 60, [8 L. R. A. (N. S.) 1171, 85 Pac. 929]), or a contract to furnish freight (Utter v. Chapman, 43 Cal. 279), in which cases actual damages only are recoverable; and the burden of showing such damages rests on the plaintiff. Here the plaintiff was to install wireless equipment and keep it in repair, and to furnish and pay a competent operator. It is obvious that plaintiff would be put to more than trivial expense in performing its part of the contract, and that its profit would be substantially less than the contract price. Hence, we think, it cannot be held that the mere introduction of the contract, and showing the breach thereof, made out a prima facie case of damages for the unpaid contract price. It may not be amiss to add that the fact that the proof of the profit which plaintiff would have made if the defendant had complied with its contract was chiefly, if not entirely, within the control of the former, furnishes a strong reason for placing that burden upon it. We think it follows that the trial court correctly concluded upon the showing made that the plaintiff was entitled to no more than nominal damages.

We will now consider defendant's appeal. In its answer it alleged, as it now contends, that the contracts here sued upon are void because the plaintiff failed to file with the railroad commission of this state a schedule of rates for the transmission of messages between points within and without the state under the provisions of section 18 of the Public Utilities Act. The trial court rejected this contention and rendered judgment for plaintiff for $1,620 under the second count, as before stated.

36 Cal. App.-42

From a stipulation of facts entered into by the parties it appears that the plaintiff is engaged in the business of fabricating, leasing, renting, and selling wireless equipment and also in the business of transmitting messages thereby; that it rents such equipment to ship owners under contracts similar to those here involved; that it has shore stations so equipped; that it transmits messages from and to ships equipped with its apparatus for hire for anyone other than the ship owner; that such messages are transmitted without charge to the ship owner, and that no messages are transmitted from one station to another in California. It also appears from the stipulation of facts that the contract which is now being discussed, made July 1, 1913, like the first contract considered, provided that the plaintiff was to install on certain steamships in the possession of the defendant wireless equipment, and to furnish and pay competent operators, for which service it was to receive a specified sum per month for a certain length of time, and that there became due to plaintiff under such contract the sum of $1,620.

The legislature of this state declared (Stats. 1911, p. 18 et seq., sec. 18, p. 30) that upon the Public Utilities Act becoming effective, every telegraph (including wireless) corporation (section 2) should print and file with the railroad commission a schedule showing the charges for the transmission of messages between all points within this state and all points without the state upon its route; and between all points within the state and all points without the state upon every route operated or controlled by it (section 18); and the legislature further declared that every telegraph (including wireless) corporation which should violate or fail to comply with any provision of the act should be subject to a penalty for each offense (section 76), and that every officer of such corporation who should violate or fail to comply with any provision of the act should be guilty of a misdemeanor (section 77).

Assuming, without deciding, that the plaintiff is within the category of section 18 of this act, and that the company would be subject to the penalties therein provided, and its officers guilty of misdemeanors, for noncompliance with the provisions of the act, still we think this contract is not void, as contended by the defendant, so as to prevent recovery upon it. Section 18 of the act does not undertake to make

unlawful the transaction of business if the required schedule of rates shall not have been filed. Nor is this a case where a member of the public desiring to send a message is without the benefit that the filing of the company's rates would give him. It is a case of a contract for a special service at an agreed price arrived at by negotiation between the parties. The contract provides, among other things, that the plaintiff will send from and receive on board the defendant's ships through its coast stations in the United States, or between any ships equipped with plaintiff's system, messages unlimited in number relating to the defendant's business, for which the defendant pays a fixed sum, and furnishes certain accommodation for the operators and the equipment. Nor would the fact that the plaintiff exacts the same price from other ship owners for similar service bring this contract within the purview of the act in question. We think this case comes within the principle applied in Luchini v. Roux, 29 Cal. App. 755, [157 Pac. 554], in which the plaintiff sought to recover from the defendants the agreed price of a quantity of milk sold and delivered to them. The defense set up was that the contract was void because the plaintiff, a dairyman, had failed to comply with sections 6 and 16 of the so-called Dairy Act, requiring those engaged in the dairy business to register as provided by the act. This court held that while the act imposed a penalty upon a dairyman who neglected to comply with its provisions as to registration, such failure did not render unlawful a contract made for the sale of milk produced in his dairy.

So here, even if section 18 of the Public Utilities Act in its requirement for the filing of schedules of rates included the kind of service involved in this case (and we do not think it does), it does not render unlawful or void a contract for such service. The penalty imposed by section 76 of said. act is aimed directly at the failure to file the schedule of rates, and not at the act of transmitting business without having filed such schedule; nor is there anywhere in the act any inhibition against transacting business before compliance with such requirement. The situation here is entirely dissimilar from that where a license is required for the conducting of business and its prohibition in the absence of such license. There the sanction of the statute is directed to the act of doing business, while in the case at bar the

penalty relates to a matter that is merely incidental and collateral to the business operations of the plaintiff corporation.

It results from what we have said that as to each appeal the judgment must be affirmed, and it is so ordered.

Lennon, P. J., and Beasly, J., pro tem., concurred.

MARY

[Civ. No. 2379. First Appellate District.-April 3, 1918.] FITZGERALD, Respondent, V. SOUTHERN PACIFIC COMPANY (a Corporation), et al., Appellants.

NEGLIGENCE-INJURY TO PASSENGER LEAVING RAILROAD TRAIN-PLEADING AND EVIDENCE-LACK OF VARIANCE.-In an action for personal injuries received by a passenger while leaving a railroad train at a station, a variance is not created by the allegation of the complaint that plaintiff was thrown from the train and the evidence which showed that she fell from the train in consequence of its starting before she had time to alight.

COMMON CARRIERS-DUTY TO PASSENGERS.-Carriers of passengers must use the utmost care and diligence for their safety and are liable for injury caused by their slight negligence.

ID. OPPORTUNITY TO ALIGHT-DUTY OF CARRIER.-The relation between carrier and passenger continues until the latter has alighted, and the former must exercise as high a degree of care in affording passengers a reasonable opportunity to alight in safety as in carrying them safely.

ID.-ALIGHTING FROM MOVING TRAIN CONTRIBUTORY NEGLIGENCE QUESTION OF FACT.-While particular circumstances may in some cases justify the court in declaring as a matter of law that a passenger is negligent in alighting from a moving train, the general rule is, the question is one of fact for the jury to determine from all of the circumstances of the particular case.

ID. DAMAGES NOT EXCESSIVE.-In an action for personal injuries received by a passenger while attempting to alight from a railroad train caused by the starting of the train before she had time to alight, a verdict for the sum of five thousand dollars was not excessive where as a result of her fall the plaintiff, who prior to the accident was an able-bodied woman performing the housework for a family, was rendered helpless, requiring the constant assistance