(dissenting). — I am unable to concur in the views expressed by the court in the foregoing opinion. As I understand the opinion, it proceeds upon the theory that, conceding appellee was wrongfully delayed on his journey to Alexander City, and that, therefore, the defendant carrier was liable to him for such wrong, yet the plaintiff must be restricted to a recovery of nominal damages only, on the theory that his testimony as to the value of the use of his property at Alexander City is shown to be based upon the patronage he expected his shows to receive during that day.
I am fully mindful of the force of the opinion of the court, based upon the doctrine of “speculative profits,” as referred to in the case of Dickerson v. Finley, 158 Ala. 149, 48 South. 548, and cases of like character. I am convinced, however, that the error lies in giving application to those cases to the one here under consideration. It must be conceded that the views expressed *42in the opinion in this case lead to harsh results, and the rule announced in the “speculative profit” cases should not be extended further than the exigency of the occasion requires.
There can be no question in this case as to the carrier having full notice of the purpose for which the plaintiff was going to' Alexander City, and of the time when he was expected to arrive, and that the damages here sought, as a result of the breach of contract and duty of the carrier, were such as to be treated within the contemplation of the parties. The opinion in this case, as I understand it, does not proceed upon any contrary theory. The plaintiff did not seek a recovery of lost profits, but sought merely to show the value of the use of his property for that day. j The case is brought squarely within that decided by the Supreme Judicial Court of Massachusetts in Weston v. Boston & Maine R. R., 190 Mass. 298, 76 N. E. 1050, 4 L. R. A. (N. S.) 569, 112 Am. St. Rep. 330, 5 Ann. Cas. 825, referred to in the above opinion. In that case the court said: “The case at bar is not a case of special profit or special damage, but a case of the ordinary damages consequent on a delay in the delivery of scenery and other properties of a traveling theatrical company. That a common carrier with notice is liable In such a case is plain from the decision made in Simpson v. London, etc., R. Co., 1 Q. B. D. 274, as to delay in the delivery of samples to be exhibited at a cattle show. * * * The question, however, is the ordinary damage from a delay in the transportation of that- kind of freight. To get those ordinary damages, notice that the freight to be transported is that kind of freight, and that it is to be used at its destination, must be given to the car*43rier; and the damages recoverable are the' ordinary earnings of the property in question.”
In the note to the above-cited case the author makes the following observations: “Although the question as to the correct measure of damages for a carrier’s delay in transporting and delivering property intended for exhibition purposes, whereby the exhibition of the property is prevented, has been passed upon in only a few cases, the holding of the reported cases is in line with the few decisions which have passed upon the question.”
—citing the following cases as sustaining the doctrine of the Massachusetts court: Yoakum v. Dunn, 1 Tex. Civ. App. 524, 21 S. W. 411; Kennedy v. Am. Exp. Co., 22 Ont. App. 278; Foster v. Cleveland, etc., R. Co. (C. C.) 56 Fed. 434 ; Simpson v. London R. Co., 1 Q. B. D. 274.
The difference between the recovery of “speculative profits” and the value of the use of the property is commented on in Griffin v. Colver, 16 N. Y. 489, 69 Am. Dec. 718, cited in So. Ry. Co. v. Coleman, 153 Ala. 266, 44 South. 387. In the Massachusetts case quoted from above it is pointed out that no special profits were asked, but only damages for the loss of the ordinary earnings, such as are here in question. A similar question was given consideration by the Court of Appeals in the case of St. L. & S. F. Co. v. Lilly, 1 Ala. App. 320, 55 South. 937, where it was held that a traveling salesman/ deprived of his samples by the delay of the carrier for 21 days, was entitled to recover for the value of the time lost by him during the time covered by the detention.
The record in this case shows that the plaintiff has been engaged in the business of exhibiting these shows *44under conditions such as prevailed at Alexander City for a number of years; and it further shows that the day he was expected to exhibit at that place the weather was fair, and that he operated these shows at that place for several days during that week. Plaintiff therefore showed, not only a long experience in that-line of business under similar conditions, but also experience at that very place, and he testified as to the value of the use of his property there for that day.
The opinion in this case restricts plaintiff to the recovery of nominal damages, for the reason that he- was unable to show how many people would have patronized his shows on that day. I am' persuaded that the' testimony here referred to, in connection with all the other evidence in the case, was sufficient for submission to the jury as to the value of the use of the property, and that it sufficiently appears that his judgment was based upon the ordinary earnings of the property under similar conditions. The mere fact that it developed his judgment as to the value of the use of his property largely rested upon the profits he expected to realize from the operation of his shows at that time should not, in my opinion, entirely destroy the value of his evidence as to his judgment, based upon years of actual experience of several days at that particular locality. Indeed, reduced to its last analysis, the value of the use of property in general must finally depend upon what it profits one, and that after all the profits are the foundation of one’s judgment as to the value of use. The Court of Civil Appeals of Texas, in Yoakum v. Dunn, supra, deals somewhat with this question.
I think that the opinion in the instant case carries the doctrine of “speculative profits” to too great an ex*45tent. As said in Griffin v. Colver, supra: “It is not a primary rule, but a mere deduction from that more general and fundamental rule which requires that the damages claimed should in all cases be shown, by clear and satisfactory evidence, to have been actually sustained”
Following the reasoning of the opinion in this case, •the owner of such an outfit as here disclosed,. with the engagements for exhibition at various places, is entirely at the mercy of the carrier. He may be wrongfully delayed, and deprived of the use of his property for a day, or a week, or more, and, seeking redress and compensation in, the courts for his damages, he is told that he has a good case, that he has been wrongfully treated, and that, while great injustice has been done him, because of his want of certainty of proof as to the amount of his damages, coupled with a fear on the part of the court that exact justice may not be done the' defendant, he must be denied any actual compensation whatsoever. He is given the consolation only of a vindication by a judgment in his favor, which, it must be confessed, is of little comfort in this day of commercialism. He asks for substance, and is given a shadow.
By the same reasoning, if the passenger trains of the defendant carrier in this case were wrongfully delayed by some one for an entire day, a recovery could be had for only nominal damages because of uncertainty as to the number of passengers who might have been willing and desirous of transportation on that day. Or, a better illustration: A more recent mode of transportation in our cities is what is known as the “jitney bus.” The owner of the “jitney bus,” which is wrongfully delayed on its trips for one day, could recover nothing *46in actual damages; and yet in both instances it could be shown what the ordinary writings for each day, and therefore with reasonable certainty the ordinary value of the use of the property during that time. If these illustrations are not apt, and the rule would not be applied in such cases; I am unable to see why the distinction should be drawn against one situated as the plaintiff in this case, who has had long experience in the business, and who had actual experience as to the patronage at Alexander City for a period of several days. Our courts and juries are constantly giving judgments and verdicts founded on no more certain testimony as to damages than that afforded by proof of the value of use of property based upon its ordinary earnings. See Bell v. Reynolds, 78 Ala. 511, 56 Am. Rep. 52; Int. Agr. Cor. v. Abercrombie, 184 Ala. 244, 63 South. 549, 49 L. R. A. (N. S.) 415.
The opinion, to my mind, followed to its ultimate result, permits the courts, for fear of not doing exact justice, to themselves be instrumental in accomplishing a great injustice. Such a result is certainly to be avoided, if. possible. The only cases referred to in the opinion in this cause which may be treated as directly in point are at variance with the holding here, but, in my humble judgment, are more in keeping with justice and fairness. There is an old quotation found among the legal maxims, “What is just and right is the law of laws.”
I respectfully dissent.