Hubbard v. Mobile & Ohio Railway Co.

87 S.W. 52, 112 Mo. App. 459, 1905 Mo. App. LEXIS 146

• Court: Missouri Court of Appeals
• Decided: May 2, 1905
• Status: Published

Opinion

GOODE, Jr

(after stating the facts). — It is contended the court below erred in refusing to instruct that if the trunk and its contents were delivered to appellant in good condition at Cairo, and afterwards delivered by it to the Terminal Association, the presumption is the trunk and its contents were in the same condition at the time of the latter delivery as when received by appellant, and that plaintiff could not recover against appellant except on proof that the missing property was lost while the trunk was in appellant’s possession. These theories rest on the assumption that appellant was liable only to the end of its line and relieved itself of further responsibility by delivering the trunk at that point to the Terminal Association. There is nothing to show when or where the trunk was turned over to the Terminal Association, or that it or any other carrier, except the appellant, had anything to do with its transportation from Cairo to Union Station at St. Louis. The fundamental fact on which an initial carrier, in some circumstances, may cast liability for lost freight on a succeeding one, is absent from this record. There is no evidence that the trunk was delivered to appellant to be transported over part of its journey by the appellant and over part by a connecting carrier. Nothing appears concerning the connection of the Terminal Association with the trunk except the bare fact that when the expressman called for it at the Union Station, he found it in the custody of the Terminal Association’s employees and received it from them. For aught that is shown the trunk was carried the entire distance by the appellant; and, doubtless, this was true. The inference to be deduced from the evidence is that on its arrival at the Union Station on appellant’s train, it passed into the custody of the Terminal Association pursuant to some business arrangement between the two defendants. Not only was the appellant the carrier over the entire route, but its contract with the plaintiff was for through carriage. Its agreement was to carry her from Cairo, Illinois, to the Union Station, St. Louis, and as incident to this contract for personal carriage, to carry her baggage too. In support of their position that the appellant, as the contracting carrier, was responsible for the trunk and contents for the whole route, plaintiff’s counsel invoke the Missouri statute which provides that if a common carrier receives property for transportation from one place to another, it shall be liable for the loss of the property, caused either by its own or some connecting carrier’s negligence. [R. S. 1899, sec. 5222.] But the contract between plaintiff and the appellant was an Illinois one and governed by the law of that State; which we must take to be the common law, as there was no proof on the subject. [The Otis Co. v. R. R., 112 Mo. 622; Morrissey v. Wiggins Ferry Co., 47 Mo. 521; Goldsmith v. R. R., 12 Mo. App. 479.] The American common law is that when a carrier receives goods for transportation to a destination beyond the end of its line, its common law liability terminates with delivery of the property to the succeeding carrier for further transportation, unless it binds itself by an express or implied contract for the whole distance. Such a contract may be deduced from the circumstances of the particular transaction or from the usage of the carrier. [Coates v. Express Co., 45 Mo. 238; Snider v. Express Co., 63 Mo. 376.] No usage followed by appellant in its business, with regard to carrying beyond its line was shown. The entire evidence is that plaintiff was sold a ticket to the Union Station, St. Loáis, her baggage checked to the same place, and, as far as appears, both she and it were deposited by appellant at that very destination. There is no proof, even, that appellant’s line ends elsewhere. This state of facts justified the trial court in submitting to the jury the issue of whether the contract of carriage between plaintiff and appellant was a through one and would have justified a direction to find it was a through, one. If the appellant agreed to transport plaintiff and her property to destination, it was responsible throughout the journey, and any other carriers who may have assisted in performing the contract must be treated as appellant’s agents. [Hutchinson, Carriers (2 Ed.), sec. 145 and citations; Halliday v. R. R., 74 Mo. 159; Shewalter v. R. R., 84 Mo. App. 589.] As to plaintiff’s trunk and its contents, appellant was under the responsibility of a carrier of freight; was an insurer against every loss except one due to the act of God or the public enemy, no special restriction of liability having been shown. [Aiken v. R. R., 80 Mo. App. 8.] As the initial and contracting carrier, appellant remained responsible for the loss of the property at any point of the transit. In the absence of a special agreement, confining appellant’s responsibility to part of the journey, its contract necessarily imposed responsibility on it for the entire journey. Now it is certain from the evidence that the trunk was received by the appellant at Cairo, Illinois, in good condition, and that the articles of jewelry plaintiff had packed in it were gone when it was restored to her at destination. Proof of these facts made a prima facie case in her favor. [Davis v. R. R., 89 Mo. 340, 1 S. W. 327.] The position is wholly untenable that showing the trunk was received from the Terminal Association at destination had a tendency to overcome the prima facie case; for such proof failed totally to establish performance by appellant of its agreement for through carriage. What the appellant was bound to prove to exonerate itself from liability, was that the trunk was lost through the act of God or the public enemy, or that by virtue of its contract with the plaintiff, its responsibility terminated and some one else’s began at an intermediate point on the route. No evidence was offered in support of either of these exceptions to liability. It may be the trunk was carried over part of the route by the Terminal Association and that carriage by the Association was contemplated from the first. If so, the presumption might arise, in an action to recover the value of the lost contents from the Association that the trunk was delivered to it by appellant in good order. That proposition is not in this case. It is apparent that the articles in controversy were lost either by theft or negligence, while appellant was responsible for them, and it must answer to the plaintiff for their value.

A carrier is responsible as an insurer of a passenger’s baggage; but only to the extent that the property shipped as bag-gage comes within that designation. We mean in the absence of a particular agreement; for a carrier may undertake, if it pleases, to carry anything as baggage. But when there is no special undertaking and the carrier is ignorant of the contents of a trunk or valise, its common law liability will embrace none of the contents that is not baggage in a technical sense. Now, it is contended by the appellant that the property in controversy was not baggage, and, therefore, it is liable, not as an insurer, but only for negligence. The court, by a sound instruction, left it to the jury to decide whether the articles were baggage or not. The plaintiff swore they were articles of personal apparel which she was in the habit of wearing and carried for that purpose. It will be seen at a glance that they were things appropriate to the apparel of a woman, as all of them were pieces pf jewelry such as are commonly worn on the person fortuse or ornament. There were two watches, it is true; but one of them was a black gun metal watch which plaintiff wore while in mourning. We might almost pronounce the articles to be baggage as a matter of law; for plainly they were personal apparel. [Hutchinson, Carriers, sec. 682.] The point of criticism in this connection is that no evidence was adduced to' show plaintiff’s social station, though the question of what may be considered as the bag-gage of a traveler depends, in some measure, on his condition in life. That is to say, if he is a person of opulence and fashion, many articles might be found to have been carried by him as baggage, which would not be if contained in the trunk of a person of no fortune and humble life. This point was matter of defense and no testimony bearing on it was given, or any instruction asked. The jury had an opportunity to observe the dress and appearance of the plaintiff and form some notion of her social station and manner of attiring herself. But this particular phase of the question was one for the defendant to request advice to the jury on, if it desired a finding of whether the lost articles were suitable to one of plaintiff’s station and means. The defect in the instructions was, at most, a case of non-direction. Of course, the law does not undertake to fix cast-iron regulations as to just what jewelry or articles of personal adornment an individual of given wealth or rank may carry as baggage. People have different tastes about such things. A very wealthy person might choose to wear no jewelry; whereas a poorer one might have a taste for precious articles and fine clothes and gratify it. Still, the law receives testimony touching the wealth and social rank of plaintiffs in actions like this, as one means of enlightening the jury in regard to whether the lost property should be considered baggage or not. For things may be in a trunk or valise when checked by a traveler, which the law will refuse to treat as such. Generally speaking nothing is baggage which a traveler is entitled to have transported by a carrier as an incident of the contract to carry him, except those articles of personal comfort, convenience and ornament usually taken on journeys and visits. The term “baggage” is ambiguous and the preceding remarks suggest rather than define, its meaning. Baggage does not, as a rule, include merchandise or furniture. To some extent the question of whether in a given case, a certain article was baggage will depend, not only on the condition in life of the traveler, but on the purpose of the journey. We have sufficiently stated, for present purposes, the significance of the term in law. If property is shipped as baggage which should not be, the carrier is liable for its loss only on the score of negligence, unless it was informed what the property was and consented to carry it as baggage.' We rule the point against the appellant that the judgment must be reversed because of lack of evidence to show plaintiff’s social degree or fortune and that the lost property was suited to her circumstances. This ruling is called for both by appellant’s failure to raise the point below, and because the nature of the property, in connection with plaintiff’s testimony, justified the conclusion that it was for personal use.

It is said the plaintiff failed to call for her trunk within a reasonable time and thereafter the responsibility of the appellant ceased; that the trunk was turned over to the Terminal Association at the Union Station, which then became liable as a warehouseman for its safekeeping. It might be answered that no defense was set up based on delay of the plaintiff in taking her trunk from the station; nor was an instruction asked on that theory. The plaintiff established her prima facie right to a verdict by proving delivery of the trunk to the Mobile & Ohio Railroad Company at Cairo, pursuant to a through contract of carriage, and that some of the contents were gone when it was redelivered to her. It then devolved on the defendant to excuse itself. If it wished to do so by showing that its responsibility as a common carrier had ceased by delivery to a warehouseman before the loss occurred, it ought to have introduced some evidence on the subject. It did not. For aught we know, the trunk may have been in the custody of the appellant until the moment before it was received by the expressman. In fact we know nothing about when it arrived in St. Louis except that it was at the station when the express-man called, for' it. In any contingency, the appellant was responsible for the goods until they were delivered to plaintiff or her agent. Until then appellant continued liable, either as carrier or warehouseman, and the essential difference would be as to the degree of responsibility. As a warehouseman it would be answerable only in case the property was lost or damaged by want of care on its part. The status of warehouseman sets in and that of carrier ceases, when the owner has had a reasonable time in which to take the property away, after it has reached destination and been unloaded from the vehicle.it was carried on. [Bell v. R. R., 6 Mo. App. 363; Gashweiler v. R. R., 83 Mo. 122.] But what proof was there that the trunk and its contents were in good order when unloaded from appellant’s car? None. If appellant had shown they were in good condition, we would listen to the argument that it was liable only as a warehouseman for their subsequent loss and that negligence on its part must be proved. This point is really one of the burden of proof, and the question is, was the plaintiff bound, in order to recover against appellant as a carrier, to show the property was lost before it was unloaded at the station and she had had a reasonable opportunity to remove it; or was the appellant bound to show that when its liability declined to that of a warehouseman, the property Avas still intact? We hold the burden in that regard was on the appellant, and that if it wished to shift its character from that of carrier into that of Avarehouseman, it was bound to prove it had acquitted itself fully as carrier, by unloading the property at the station in good order and keeping it a reasonable time subject to plaintiff’s orders. An exact precedent to support this proposition exists. [Bell v. R. R., 6 Mo. App. 363, 369.] We reject entirely the argument that appellant ceased to be responsible in. any capacity, and the Terminal Association became responsible as warehouseman, when the goods were delivered at St. Louis. The evidence before us is inadequate to support such a theory; for it shows nothing about how the Terminal Association happened to have the trunk in its custody.

The further contention is that plaintiff was bound to prove the appellant was guilty of some negligence which caused the loss. This argument is founded on an expression in tbe petition that the articles were lost by the negligence of the employees of the-two defendants. That statement is not the gist of the petition. The entire gravamen of the case is that the trunk was delivered to and accepted by the appellant for carriage, with the lost articles in it, and afterwards returned to the plaintiff without them. The action is not really one for negligence, but on the liability of the appellant as a common carrier. The judgment is affirmed.

All concur.