By the Court—Robertson, Ch. J.
The cause of action set out in the complaint in this case is a wrongful conversion "by the defendants of, and a refusal by them to deliver to the plaintiff, on a demand "by her, a trunk (her property) “containing plate and other valuable articles, and money.” Were it not that evidence seems to have been admitted without objection of the value of such contents, and the case to have been tried upon the assumption that the action was brought for their conversion also, it might be doubtful whether they could be recovered for under a complaint so worded.
Under the allegation in the complaint of the “conversion” of the property in question by the defendants, to their own use, whether as bailees for hire, or only gratuitous custodians of it, the plaintiff could not recover without proof of an absolute appropriation of it by the defendants to their own use, or what is equivalent, parting with it to others without the authority of the owners. Only in such cases would an action in the form of trover have for-, merly lain, even against common carriers (Deveroaux v. Barclay, 2 Barn. & Ald., 703; Stephens v. Hart, 4 Bing., 476; Youl v. Harbottle, Peake Cas., 49; Sublock v. Inglis, 1 Stark, 154).
In a case where a common carrier might have been sought to be made liable, on non-delivery, a special action in the case in a breach of the public duty of carrying safely, or of assumpsit for a breach of the undertaking so to carry, would have been the only forms of remedy for a mere negligent loss (Ross v. Johnson, 5 Burr, 2835; Anon., 2 Salk., 665). This constitutes a substantial difference in the cause of action, which-the plaintiff was bound, to observe in the statement of facts contained in the complaint (Code of Pro., §142, subd. 2), if she sought to recover for mere non-delivery or loss. This, in effect, the plaintiff conceded ; claiming on the argument, however, that such ap[318]*318propriation, in fact, by the defendants, was established by the evidence.
bio question is made as to the termination by the compulsory transfer of the plaintiff to the receiving or hospital-ship Illinois, under the health laws of this State, of the original contract of the defendants, as common carriers, to transport the plaintiff and her baggage to the port of blew York, and safely land it and her there ; the plaintiff’s counsel, not only conceding that it was so terminated, but even claiming that the defendants never had, even during the voyage, the missing property under their charge as carriers,- and they took it from her by compulsion, and against her will, into their custody, and kept it in such a manner that it could not have been lost or stolen, and must, therefore, have been appropriated by them to their own use. A mere compulsory taking of the property from the plaintiff’s possession by the defendants, and a refusal to restore it, would have been sufficient without any proof of its subsequent fate, or of a demand to enable her to recover in this action. Proof of want of ordinary care in keeping it, or of actual subsequent appropriation of it to the use of the defendants, would only be necessary in case they had been voluntary bailees without hire.
On the trial, the counsel for the defendants requested the court to charge the jury that they “ must find a verdict for the defendants if they found that they did not convert the property in question to their own use,” which the learned judge presiding on the trial refused to do, except as he had already charged, to which refusal such counsel excepted.
The learned judge has charged that “ the principles applicable to all cases of property lost by carriers are equally applicable to this case, and must be applied with the same rigor as in all others. There is nothing that calls for any relaxation of the rules in this case.” And he added, , In my view of the case under the evidence, these defendants are liable for the loss of this trunk. As to the liability for the contents, that is another thing. There is no question at all but that there was such [319]*319a trunk, and it may "be fairly assumed that the trunk was lost.” He then submitted to the jury substantially three questions of fact. (1.) What were the contents of such trunk. (2.) Whether the articles of wearing apparel and jewelry claimed by the plaintiff to have been in said trunk when lost were her ordinary and necessary wearing apparel for the voyage ; and (3.) Whether the sum of $1,200, claimed by her to have been in such trunk when lost, was a reasonable amount of money “for traveling expenses and for staying a few days at a hotel until she could get into business,” and instructed them that if they "decided the last two questions in favor of the defendants, they should “ give her a verdict” for such articles as were in the trunk, except certain ones which he had directed them to disregard as not being necessary either as wearing apparel or for traveling expenses.
The court thus not only evidently put the liability of the defendants upon the ground of their being common carriers, liable at all events for the loss of the property in question upon its non-delivery, and not exempt from liability by proof of any ordinary legally recognized excuse for not delivering at the end of the route, but also refused to charge that the defendants were not liable, unless for a conversion of the property to them own use. This is directly contrary to the principles settled by the authorities already referred to (vide supra), and was sufficient error to authorize the granting of a new trial. The plaintiff’s counsel seems, however, to have conceded this, and devoted himself to the task of proving that there was sufficient evidence in the case to establish such conversion, either by the compulsory taking of such property out of the possession of the plaintiff; or if such taking were peaceable and lawful, by the impossibility or violent improbability of its disappearance in any other way, under all the circumstances of the case. And as it may be necessary, in case of another trial of this case, to determine what rules of law are applicable under that view, it may be well to look at the evidence.
It was not only conceded on the argument, but claimed [320]*320by the plaintiff’s counsel, “that the defendants at no time, as carriers or in any other way, by contract with, or privity or consent of the plaintiff, had charge of the property.” This may be assumed to be true up to the time of her leaving the Illinois to go on shore, for both the plaintiff and another witness (Mrs. Young) testified to that effect. The former states that she had had charge of that box during the passage in her “berth,” because there were valuable things in it, and “she never allowed it to go out of her ’ possession on board the Helvetia or the Illinois until it was put on the tugboat and again, that this was the only package in her charge—she had no other but that in her charge. She further testified that she had it three weeks in her room in the Illinois. The other witness corroborated her statement as to having it in her charge in her berth during the whole voyage on board of the Helvetia. And the assumption of that care by the plaintiff would have prevented any recovery by her for any loss of such box • during the voyage (Cohen v. Frank, 2 Duer, 335).
The first question, therefore, on the evidence, is as to the compulsory taking of such property by the defendants out of the possession of the plaintiff.
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By the Court—Robertson, Ch. J.
The cause of action set out in the complaint in this case is a wrongful conversion "by the defendants of, and a refusal by them to deliver to the plaintiff, on a demand "by her, a trunk (her property) “containing plate and other valuable articles, and money.” Were it not that evidence seems to have been admitted without objection of the value of such contents, and the case to have been tried upon the assumption that the action was brought for their conversion also, it might be doubtful whether they could be recovered for under a complaint so worded.
Under the allegation in the complaint of the “conversion” of the property in question by the defendants, to their own use, whether as bailees for hire, or only gratuitous custodians of it, the plaintiff could not recover without proof of an absolute appropriation of it by the defendants to their own use, or what is equivalent, parting with it to others without the authority of the owners. Only in such cases would an action in the form of trover have for-, merly lain, even against common carriers (Deveroaux v. Barclay, 2 Barn. & Ald., 703; Stephens v. Hart, 4 Bing., 476; Youl v. Harbottle, Peake Cas., 49; Sublock v. Inglis, 1 Stark, 154).
In a case where a common carrier might have been sought to be made liable, on non-delivery, a special action in the case in a breach of the public duty of carrying safely, or of assumpsit for a breach of the undertaking so to carry, would have been the only forms of remedy for a mere negligent loss (Ross v. Johnson, 5 Burr, 2835; Anon., 2 Salk., 665). This constitutes a substantial difference in the cause of action, which-the plaintiff was bound, to observe in the statement of facts contained in the complaint (Code of Pro., §142, subd. 2), if she sought to recover for mere non-delivery or loss. This, in effect, the plaintiff conceded ; claiming on the argument, however, that such ap[318]*318propriation, in fact, by the defendants, was established by the evidence.
bio question is made as to the termination by the compulsory transfer of the plaintiff to the receiving or hospital-ship Illinois, under the health laws of this State, of the original contract of the defendants, as common carriers, to transport the plaintiff and her baggage to the port of blew York, and safely land it and her there ; the plaintiff’s counsel, not only conceding that it was so terminated, but even claiming that the defendants never had, even during the voyage, the missing property under their charge as carriers,- and they took it from her by compulsion, and against her will, into their custody, and kept it in such a manner that it could not have been lost or stolen, and must, therefore, have been appropriated by them to their own use. A mere compulsory taking of the property from the plaintiff’s possession by the defendants, and a refusal to restore it, would have been sufficient without any proof of its subsequent fate, or of a demand to enable her to recover in this action. Proof of want of ordinary care in keeping it, or of actual subsequent appropriation of it to the use of the defendants, would only be necessary in case they had been voluntary bailees without hire.
On the trial, the counsel for the defendants requested the court to charge the jury that they “ must find a verdict for the defendants if they found that they did not convert the property in question to their own use,” which the learned judge presiding on the trial refused to do, except as he had already charged, to which refusal such counsel excepted.
The learned judge has charged that “ the principles applicable to all cases of property lost by carriers are equally applicable to this case, and must be applied with the same rigor as in all others. There is nothing that calls for any relaxation of the rules in this case.” And he added, , In my view of the case under the evidence, these defendants are liable for the loss of this trunk. As to the liability for the contents, that is another thing. There is no question at all but that there was such [319]*319a trunk, and it may "be fairly assumed that the trunk was lost.” He then submitted to the jury substantially three questions of fact. (1.) What were the contents of such trunk. (2.) Whether the articles of wearing apparel and jewelry claimed by the plaintiff to have been in said trunk when lost were her ordinary and necessary wearing apparel for the voyage ; and (3.) Whether the sum of $1,200, claimed by her to have been in such trunk when lost, was a reasonable amount of money “for traveling expenses and for staying a few days at a hotel until she could get into business,” and instructed them that if they "decided the last two questions in favor of the defendants, they should “ give her a verdict” for such articles as were in the trunk, except certain ones which he had directed them to disregard as not being necessary either as wearing apparel or for traveling expenses.
The court thus not only evidently put the liability of the defendants upon the ground of their being common carriers, liable at all events for the loss of the property in question upon its non-delivery, and not exempt from liability by proof of any ordinary legally recognized excuse for not delivering at the end of the route, but also refused to charge that the defendants were not liable, unless for a conversion of the property to them own use. This is directly contrary to the principles settled by the authorities already referred to (vide supra), and was sufficient error to authorize the granting of a new trial. The plaintiff’s counsel seems, however, to have conceded this, and devoted himself to the task of proving that there was sufficient evidence in the case to establish such conversion, either by the compulsory taking of such property out of the possession of the plaintiff; or if such taking were peaceable and lawful, by the impossibility or violent improbability of its disappearance in any other way, under all the circumstances of the case. And as it may be necessary, in case of another trial of this case, to determine what rules of law are applicable under that view, it may be well to look at the evidence.
It was not only conceded on the argument, but claimed [320]*320by the plaintiff’s counsel, “that the defendants at no time, as carriers or in any other way, by contract with, or privity or consent of the plaintiff, had charge of the property.” This may be assumed to be true up to the time of her leaving the Illinois to go on shore, for both the plaintiff and another witness (Mrs. Young) testified to that effect. The former states that she had had charge of that box during the passage in her “berth,” because there were valuable things in it, and “she never allowed it to go out of her ’ possession on board the Helvetia or the Illinois until it was put on the tugboat and again, that this was the only package in her charge—she had no other but that in her charge. She further testified that she had it three weeks in her room in the Illinois. The other witness corroborated her statement as to having it in her charge in her berth during the whole voyage on board of the Helvetia. And the assumption of that care by the plaintiff would have prevented any recovery by her for any loss of such box • during the voyage (Cohen v. Frank, 2 Duer, 335).
The first question, therefore, on the evidence, is as to the compulsory taking of such property by the defendants out of the possession of the plaintiff. In applying the evidence to that point, it is to be assumed that all previous-relations between the parties had ceased, and that they stood precisely as if the plaintiff, being a lodger on board of the Illinois, had for the-first time parted with the possession of her trunk at the moment of her leaving that vessel to go on shore, by letting it go on board of a separate tugboat from that in which she went to the shore. Tire testimony of the plaintiff was, that when the tugboat came alongside, and she was directed to go on board of it to go ashore, her son and herself took such trunk and its contents “to the gangway to bring with them.” Mr. Finlay (the alleged agent of the company) said, they could not bring their baggage on that boat—it must go on the other tugboat. ‘ They then carried it across to the side to the other tugboat, and it was put on beard.” They then went ashore on the first boat. This was all done under Mr. Finlay’s direction.- On cross-examination, she stated that [321]*321he “ said he "would not allow any package to be on board where the passengers were.” This was corroborated by Mrs. Young and the son of the plaintiff (James Tolano). The latter also testifies that Mr. Finlay, who was acting then as agent of the defendants, receiving and delivering letters, bringing down provisions and the like, came down with two tugs to bring the passengers and baggage on shore. The fact of Finlay’s acting as such agent was also testified to by another witness (Gamble), who further states that Finlay brought all the baggage on one tug, and carried the passengers to land on another. After towing the Illinois to her winter quarters by such boats, he removed the passengers on one boat and the baggage on another. He ordered'no baggage or package tobe taken by the passengers. This was when all were leaving the Illinois to land. He would not permit any of the passengers to have or keep their baggage under their own charge when landing from the Helvetia. ‘He prevented them from taking their baggage with them.” It was admitted on the trial that the defendants employed the tugboats to land the passengers and their baggage.” This evidence was not essentially varied by any other testimony, except that Mr. Finley testified that lie told the passengers that they had to go on the passenger tugboat, and the baggage must go by the other tug, but that any small parcels or valuables he would allow them to take with them ; and in this he was corroborated by two other witnesses (Rourke and Peterson). This testimony is apparently not contradicted by any other. The box itself was three feet long and one foot six inches broad. Mr. Finlay also testified that he had the superintendence of the landing of the passengers and baggage from the Helvetia. He took down two boats— one for the passengers, and the other for baggage. He had orders from the quarantine commissioners to have the • Illinois brought to Gravesend Bay, and there disembark the passengers and the baggage. He wanted to get the-passengers to Castle Garden before it was closed, that they might be taken care of during the night. He superintended the transfer of the passengers, and another person (Pe[322]*322terson) had charge of the men that moved the baggage, which he landed on the wharf at Castle Garden, and put in an inclosed space.
I am unable to discover in the evidence any forcible dispossession of the plaintiff of such trunk, or any compulsion of her to place it on board of the baggage-boat. She was undoubtedly prevented from taking it with her in the passenger-boat, but that alone would not have compelled her to put it into the custody of the agents of the defendants, on board of the other boat. She might, for aught that appears to the contrary, have left it on board of the Illinois, and taken another opportunity to land with it in her possession ; unless the removal of herself and her baggage, as well as the other passengers, was by authority of the quarantine commissioners, and therefore peremptory ; under which, indeed, rather than that of the defendants, Finlay seems to have been acting, as the agent of such public officers. His separation of the passengers from the baggage may have been discreet, to prevent any delay in waiting for the latter, which might interfere with such passengers being landed and housed in Castle Garden that night. Passengers were notified they might take small packages of valuables, and it does not appear that the plaintiff claimed the trunk to be such. It appears to have been a box of dubious size for holding valuables (unless they were very numerous); at all events the plaintiff, without the least remonstrance, although it conta ned a great deal of money and valuables, as she stated, and she had had it in her berth, under her eye, the whole voyage, carried it herself to the side of tire other tugboat and saw it put on board. Ho part of this evidence seems ¿o me to be such an assumption of exclusive dominion or control over such box, by Finlay, as agent of the defendants, as to make the act-of receiving it on board of the baggage-boat a conversion by them. If there was any evidence of it, it should have been submitted to the jury.
But, if such delivery was a voluntary bailment, without hire, the question of want of ordinary diligence in taking care of the box should have been submitted to the [323]*323jury, if there was any evidence of it. It seems by the testimony that after being placed on board of the tugboat (the Fletcher), all the baggage was landed as before mentioned, and left in charge of a watchman (Hartman) all night in an inclosure. All of it brought from the Illinois was there next morning, and was again in charge of a watchman (Peterson) all that day, until he was relieved by the previous watchman (Hartman), who remained until the second morning on guard, when the landing agent (Hall) came, who commenced delivering it, after an examination by custom-house officers, the plaintiff being present. Such watchman denied the removal of any of the baggage until that time, and the plaintiff’s counsel admitted on the argument that such trunk was “so sedulously kept by the vigilance of its custodian that it could not be stolen or abstracted nor do I find any evidence of the .want of the ordinary precautions taken by prudent men to take care of their property. If there was, it should have been submitted to the jury, unless downright negligence was proved.
I am not prepared to admit that, upon strong proof of great care of a bailee without hire, in guarding chattels delivered to him, so as almost to exclude the possibility of their disappearance without his connivance, a conversion to his use is to be presumed, or that it is by itself alone sufficient to go to a jury upon this point. At most it can only be a circumstance to be submitted to the jury, either alone or with others.
Upon either view of the case, therefore, either that of the court considering the defendants as common carriers, and liable as such without an appropriation of the property to their use, or that of the plaintiff’s counsel considering the defendants either as tortfeasors, in taking or after-wards appropriating the goods or guilty of negligence in taking care of them, there should be a new trial.
The judgment and order denying a new trial must, therefore, be reversed, and such new trial had, with costs to abide the event.