While it has been held that there can be no recovery for a sentimental value as such, this would not preclude a consideration by the jury of the nature and character of the property, such as, as in this case, the fact that the lost article was a painting made by the plaintiff's mother, who had since died, and which, on account of such association, he prized highly. In Suydam v. Jenkins, 3 Sandf. 614, 621, it is stated: *Page 305 "The value to the owner may be enhanced by personal or family considerations, as in the case of family pictures, plate, etc., and we do not doubt that the `pretium affectionis,' instead of the market price, ought then to be considered by the jury or court in estimating the value. In these cases, however, it is evident that no fixed rule to govern the estimate of value can be laid down, but it must of necessity be left to the sound discretion of a jury, in the exercise of a reasonable sympathy with the feelings of the owner." In Greene v. Boston Lowell R. Co., 128 Mass. 221, supra, which is often referred to as the leading case on this question, where the plaintiff sued for the value of a portrait of his father, the court stated as follows: "The just rule of damages is the actual value to him who owns it, taking into account its cost, the practicability and expense of replacing it, and such other considerations as in the particular case affect its value to the owner. . . This being the rule of damages testimony of the plaintiff that he had no other portrait of his father would bear upon the question of its actual value to him and was competent."
Except as above stated, I concur in all that is said in the opinion and in the judgment of reversal.