Kansas City, M. & B.R. Co. v. Higdon

• Citation: 10 So. 282,94 Ala. 286
• Court: Supreme Court of Alabama
• Decision Date: 27 November 1891
• Parties: KANSAS CITY, M. & B. R. CO. v. HIGDON.

10 So. 282

94 Ala. 286

KANSAS CITY, M. & B. R. CO. v. HIGDON.

Supreme Court of Alabama

November 27, 1891

Appeal from circuit court, Jefferson county; JAMES B. HEAD, Judge.

Action by E. L. Higdon against the Kansas City, Memphis & Birmingham Railroad Company to recover damages for the loss of a dog. From a judgment on a verdict directed for plaintiff defendant appeals. Affirmed.

Defendant's pleas numbered 1 and 2 were the general issue, and the special pleas interposed by defendant set up a rule of defendant regulating the carriage of dogs, and disclaimed responsibility for dogs so carried; averred that the defendant was not, and did not hold itself out to be, a carrier of dogs on its passenger trains; that the only compensation provided for their carriage would be the personal perquisites to the baggage-master for their carriage.

Hewitt, Walker & Porter, for appellant.

Cabaniss & Weakley, for appellee.

WALKER J.

The defendant had the benefit under pleas numbered 1 and 2 of the matters set up by the three special pleas, the demurrers to which were sustained. Such being the case, if there was error in sustaining the demurrers, it was error without injury to the defendant, and does not afford ground for a reversal of the judgment. Railroad Co. v. Davis, 91 Ala. 487, 8 South. Rep. 552.

The appellee was a passenger on the appellant's train from Birmingham to Elliott, a station on the appellant's line of road. When he boarded the train he went into a second-class car, carrying his dog along with him. When the conductor passed through the train collecting tickets he saw the dog, and then told the appellee that it was against the rules of the company to carry dogs on its passenger-coaches and that he would have to put the dog in the baggage-car. Thereupon the appellee and a brakeman took the dog into the baggage-car, and delivered it to the baggage-master. The appellee testified, without contradiction, that he told the baggage-master to put the dog off at Elliott, and also that he told him that he would not pay him any money for the dog. When the train arrived at Elliott, the baggage-master refused to deliver the dog, unless the appellee would pay him a fee of 25 cents. The appellee declining to make this payment, the dog was carried to Memphis, and was lost. The appellee afterwards offered to pay what was due on the dog, but did not renew such offer after he was informed that the dog was lost. There is no evidence to show that when the appellee delivered the dog to the baggage-master he had knowledge or notice of the rule under which the appellant seeks to relieve itself of responsibility. The conductor was acting within the apparent scope of his authority when he gave directions as to the disposition to be made of the dog. When the baggage-master received the dog, there was nothing to indicate that he was acting in his own behalf, rather than as an employe of the appellant and for it. It does not appear that the appellee was in any way made to understand that in reference to the carriage and custody of the dog he was to look to the baggage-master individually, and not to the railroad company. He was not informed that the company was unwilling to transport the dog or to become responsible for it. He was simply told to leave the dog in another part of the train, and with the person in charge of the baggage. He was not presumed to know the rules of the company as to the kinds of property it would receive for transportation. It does not even appear in this case that the rule relied on was posted in the depot, or in any other public place, at the station where the appellee was...