[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 219
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 220
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 221 This court decided, in Quimby v. Vanderbilt, (17 N.Y. Rep. 306,) that a part owner of one of several *Page 222 lines for the transportation of passengers, running in connection over different portions of a route of travel, may contract as principal for the conveyance of a passenger over the whole route; and that such contract may be established by the circumstances, notwithstanding the passenger receives tickets for the different lines, signed by their separate agents. Also, that passage tickets are generally to be regarded as tokens rather than contracts, and are not within the rule excluding parol evidence to vary a written agreement. That decision shows, that the judge properly refused in this case to nonsuit the plaintiff, and that he did not err in submitting the question to the jury, whether the defendant was not a common carrier of passengers from New York to San Francisco by way of Nicaragua, and did not contract, as such, to carry the plaintiff the entire route for the $250, which the defendant's agent received of him.
The evidence that representations were made to the plaintiff, when he made the contract for his passage, as to the healthfulness of the climate on the isthmus, and to show that such representations were false, was given before the judge decided that the plaintiff could not recover for fraud, under the fourth or fifth claim in his complaint; and when he so decided and charged the jury that the plaintiff could only recover for such sickness as was caused by the defendant's neglect or breach of duty, the question of fraud was out of the case. The defendant, therefore, was not prejudiced by the evidence that such false representations were made to the plaintiff.
It was entirely proper for the judge to receive evidence as to how much the plaintiff was exposed to the sun and rains while crossing the isthmus, and to show that the climate there was bad and unhealthy, so that the jury could determine whether the plaintiff's sickness was caused by the defendant's negligence or breach of duty.
The appellant's counsel contends that the contract proved, did not absolutely bind the defendant to carry the plaintiff *Page 223 from San Juan del Sur to San Francisco, but only required him to furnish the plaintiff a passage upon the North America; and that the loss or wrecking of that vessel excused the defendant from carrying the plaintiff beyond San Juan del Sur. I can not agree to this proposition. In the first place, the jury must have found that the defendant was a common carrier of passengers from New York to San Francisco, and contracted as such to transport the plaintiff from the former to the latter place, or they could not have rendered a verdict, under the charge, in favor of the plaintiff. In the next place, if the loss or wrecking of the North America was the act of God, it was the duty of the defendant to exercise diligence in providing another vessel for the carriage of the plaintiff. He was bound to use all the means, in endeavoring to supply another vessel, which a diligent, careful man exercises in regard to his own affairs. He could not heedlessly leave the plaintiff upon the isthmus to die, or work his way to San Francisco, or back to New York as he best could.
The main thing the defendant agreed to do was to carry the plaintiff from New York to San Francisco. His promise to carry him in a particular vessel from San Juan del Sur, to the latter place, was a minor part of the contract; though, if such vessel had not been lost, he would have been obliged to carry the plaintiff in it.
I have asserted the doctrine that the loss of the North America did not wholly absolve the defendant from all duty under the contract. The true rule touching this question is laid down by Professor Parsons. He says, "The non-performance of a contract is not excused by the act of God, where it may be substantially carried into effect, although the act of God makes a literal and precise performance of it impossible." (2 Parsons on Cont. 3d ed. 185; see also White v. Mann, 26 Maine Rep. 361.)
The defendant, notwithstanding the loss of the North America, could have substantially carried the contract into effect to transport the plaintiff to San Francisco, if he had *Page 224 exercised proper diligence, according to the verdict of the jury. For, according to the verdict, he could, by the exercise of due diligence, have procured another vessel and taken him to San Francisco; and that would have been a substantial performance by the defendant of the contract to carry the plaintiff in the North America from San Juan del Sur to San Francisco. The correctness of these views is so clear to my mind that I must reject as unsound whatever there is to the contrary in Briggs v.Vanderbilt, (19 Barb. 222,) and Bonsteel v. The same, (21 id. 26.)
The remarks of the judge, which authorized the jury to award damages to the plaintiff for "derangement of his plans by reason of a violation by the defendant of an arrangement which he made and which he assumed when he received the plaintiff on board his vessel," were somewhat obscure. They were interpreted by the Supreme Court to mean that the jury might award damages to the plaintiff for breaking up his journey, rendering it necessary for him to return. But this court can not determine whether those remarks were right or wrong, because no exception was taken to them by the defendant's counsel.
The time the plaintiff lost by reason of his detention on the isthmus; his expenses there, and of his return to New York; the time he lost by reason of his sickness, after he returned home; and the expense of such sickness; so far as the same were occasioned by the defendant's negligence or breach of duty; were legitimate and legal damages, which the plaintiff was entitled to recover. He could not procure a passage from San Juan del Sur to San Francisco, and therefore had the right to return to New York and his home. If one of the plaintiff's limbs had been broken, through the carelessness of the agents or servants of the defendant, it is settled that he could have recovered the expenses of the sickness occasioned thereby, and for the consequent loss of time; and also compensation for the bodily pain and suffering *Page 225 caused by such breaking of his limb. (15 N.Y. Rep. 415; 18 id. 534.)
The principle on which a recovery, in such a case, is allowed for bodily pain or suffering, loss of time and expenses, sustains the recovery, in this case, for the plaintiff's loss of health and loss of time, and his expenses during his sickness. And that the plaintiff could recover back the $250 he paid to be carried from New York to San Francisco, and his expenses while unnecessarily detained upon the isthmus, and the expenses of his journey from there back to New York, admits of no doubt, if the defendant, by the exercise of proper diligence, could have carried him to San Francisco before he left San Juan del Sur; or if his long detention on the isthmus and subsequent return to New York were justly imputable to the defendant's neglect of duty to him. But I will not discuss these questions further.
My conclusion is that no error was committed on the trial which entitles the defendant to a new trial; and that the judgment of the Supreme Court should be affirmed with costs.
ROSEKRANS and MARVIN, JJ. expressed no opinion.
All the other Judges concurring,
Judgment affirmed. *Page 226