Appellee and his wife were passengers and entitled to transportation, and it is not believed that the fact that the wife may have paid for one berth and the husband for another should have any bearing on the decision of this case; for it can not be denied that the husband had the right under his contract with the company to admit his wife into the berth in which they were, she being a passenger.
This being true, the action of the servants of this company violated his right secured by contract when they compelled her to leave that berth and take another, and this in my judgment gave cause of action. *Page 216 In estimating the damages to which appellee would be entitled, a cause of action existing, it would be proper to take into consideration on the one side the rude, unnecessary, and offensive behavior of the company's servants, and on the other the acts of appellee or his wife tending to induce the belief on the part of the servants that their relation was not that of husband and wife.
I think the motion for rehearing should be granted, and there being no claim that the damages awarded are excessive, that the judgment should be affirmed.