20 F. 430 (E.D.La. 1884), Henderson v. Louisville & N.R. Co.

Citation:20 F. 430
Case Date:April 09, 1884
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 430

20 F. 430 (E.D.La. 1884)




United States Circuit Court, E.D. Louisiana.

April 9, 1884

O. B. Sansum and E. Sabourin, for plaintiff.

Thos. L. Bayne and George Denegre, for defendant.


The petition sets forth that the plaintiff was a passenger upon the defendant's road, in one of defendant's coaches, forming a part of one of its regular trains, which was run by a conductor by it appointed, from the town of Pass Christian to the city of New Orleans, and lawfully had with her a 'certain leathern bag,' which contained money, diamonds, and jewelry, in all to the value of $9,875, carrying said bag in her hand; that 'while the plaintiff was closing a window of the car in which she was riding, to stop a fierce

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current of air which came in upon her,' 'said leathern bag and its contents, by some cause unknown to the plaintiff, accidentally fell from her hand through said open window and upon defendant's road;' that thereupon the plaintiff communicated to the said conductor of the defendants the loss of said bag and the value of its contents, and requested him to stop said train that she might recover the same, which he refused to do, but carried the plaintiff on for a distance of three miles to Bay St. Louis, from which place she dispatched a trusty person back to the place where said bag and its contents were dropped, but before said person could arrive at said place the said bag had been stolen and carried away, whereby the plaintiff lost the value of said contents, for which the plaintiff prays judgment.

The question of law presented is, was the defendant, who was a common carrier of goods and persons, to-wit, a railroad company, responsible for the loss of a parcel of valuables carried in the hand of a passenger falling out of an open window without any fault of the carrier, for the reason that upon notice and demand it did not stop a train to recover the parcel until the train arrived at one of the usual and advertised stations. The propositions of law which the plaintiff must maintain in order to allow an affirmative answer to this question are two: (1) That the plaintiff had a right to take into the car with her the bag and its contents, and to carry the same in her hand or in some other way under her personal supervision, and in her personal custody; and (2) that the defendants, as an incident of their contract to carry the plaintiff, entered into some further contract with reference to the carriage and safety of the same which involved liability in case of loss or separation without fault on defendant's part from the plaintiff's possession. The first proposition is correct; the second cannot be maintained. The plaintiff, considering the well-known habits and requirements of passengers in the United States at this day, had an undoubted right to take with her her jewelry and money in her journey from her summer to her winter residence. They were in bulk and character such that they could be taken into the car without any inconvenience either to the defendants or the other passengers. Indeed, they were of such bulk and character as to altogether escape observation. But this was simply a permission; there was no obligation, except as connected with some default or wrong on the part of the railroad in the carrying of the plaintiff. If the loss had arisen in consequence of the defendant's failure, diligently and with proper skill, to carry the plaintiff, a different question would have arisen. For in that case there would have been a violation of a contract, and the sole inquiry would have been as to whether the loss of the valuables carried in the hand could have been a ground for the recovery of damage. But the case shows that the plaintiff was in all things, so far as related to herself, diligently and with proper skill, transported from the point to the point mentioned in her passage. There remains then the question whether the

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defendants assumed any responsibility with reference to the valuables other than that the plaintiff herself should be carried, and that the valuables should not be interfered with by any act or fault of theirs. This contract was completely performed. Notwithstanding this performance the plaintiff, through her power of locomotion and not at all through any default or act of defendant, found herself separated from her valuables, and the force of plaintiff's argument was that the defendant was under obligation to stop the train to enable her to recover them. There was no duty to do anything at all towards recovery, unless there had been some violation of the undertaking to carry, and there had been none. It is as if the plaintiff had, by a theft or other casualty, preceding her journey, been separated from these same valuables, and recognizing them lying on the defendant's road, insisted that the conductor should stop the train in order to allow her to regain them. The appeal was to a party who was under no legal obligation to aid in the recapture, and stood upon grounds of kindness and Christian charity to be decided by the person appealed to by reference to moral and not legal considerations, and if refused caused damnum absque injuria.

In all the actions against the common carrier for nonfeasance, whether the action is in assumpsit or on the case, the gist of the action is the neglect to perform a duty which is created and measured by the contract. Beyond or outside of the contract the carrier is under no greater obligation to the shipper or passenger than is the rest of the community. The doctrine, 'Sic utere tuo ut alienum non laedas,' can never have the effect to transfer from one contracting party to another a risk of injury or loss which had by the plain words or unmistakable implication of the contract itself been lodged. In such a case the party who had assumed the responsibility must bear the damage or loss. Here the bag and its contents, so far as they depended upon its custody and location within the car, were by the contract of passage to be retained in the care of the plaintiff, and any disposition of them by her, which turned out to be unwise or simply unfortunate, and resulted in loss, concerned the plaintiff alone. Consistently with all the circumstances set forth in the petition, the continuance of plaintiff's possession of the bag and its contents, and their restoration to her possession after it had been interrupted, were matters which the plaintiff herself undertook to care for to the exclusion of responsibility on the part of defendant. In this respect the defendant violated no obligation, for none existed.

The exception must be maintained, and the petition dismissed.

The principal case presents the interesting question of the liability of a railway company, steam-boat man, or other common carrier, for property lost, injured, or destroyed while in transit in possession of a passenger.

1. GENERAL LIABILITY. As a general rule every one is liable for his negligence and its consequences. Sic utere tuo ut alienum non laedas is the

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maxim. There is no doubt of the soundness or justice of this maxim. Its application to such a case as the principal one has been brought in question. 2 An agent of the plaintiff went upon the defendant's train with $4,000 of plaintiff's money. During the transit the train fell through a bridge, and the agent and the $4,000 were burned in the wreck. It was sought to hold the company liable on two grounds: (1) Under the maxim sic utere, etc.; and (2) as a common carrier. SCOTT, J., pointed out that the first ground of liability relied upon was not based upon any contract between the parties, nor upon any liability of the company as a common carrier, but only sought a recovery on the ground that the defendant negligently so conducted its business in running its train as to destroy plaintiff's property. 'Yet,' said he, 'it proceeds on the important assumption that plaintiff's money was lawfully were it was at the time when the catastrophe occurred; that is, that McElroy was a passenger on defendant's train of cars, had a right to carry the money with him, and, without notice to...

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