New Orleans & N.E.R. Co. v. Shackleford

• Citation: 87 Miss. 610,40 So. 427
• Parties: NEW ORLEANS & NORTHEASTERN RAILROAD COMPANY v. LEE SHACKELFORD
• Decision Date: 09 April 1906
• Court: United States State Supreme Court of Mississippi

40 So. 427

87 Miss. 610

NEW ORLEANS & NORTHEASTERN RAILROAD COMPANY v. LEE SHACKELFORD

Supreme Court of Mississippi

April 9, 1906

FROM the circuit court of Lauderdale county, HON. ROBERT F COCHRAN, Judge.

Shackelford the appellee, was plaintiff in the court below; the railroad company, the appellant, was defendant there. From a judgment in plaintiff's favor, awarding him only a part of the recovery sought, the defendant appealed to the supreme court and the plaintiff prosecuted a cross-appeal. The facts are stated in the opinion of the court.

Judgment affirmed.

Fewell, Bozeman & Fewell, for appellant and cross-appellee.

The fact that commercial travelers or others are accustomed to carry merchandise in passenger trains without paying any more than the usual price of the ticket for a passenger, even if known to the carrier, will not render them liable for such merchandise. Alling v. Boston, etc., R. Co., 126 Mass. 121 (S.C., 36 Am. St. Rep., 667).

Shackelford was traveling on mileage, which is sold for less than the straight ticket--that is, he was traveling at a reduced rate. Suppose, instead of cutlery, he had, in fact, been carrying jewelry of immense value, would the railroad company have been responsible for its loss, knowing nothing as to the contents of the case being jewelry?

In the case of Blumantle v. Fitchburg R. R. Co., 31 Am. St. Rep., 377, this is decided:

"A railway passenger had merchandise checked, without disclosing its character. There was no evidence of any agreement to carry it as freight, nor that the baggage master had any authority to receive it as freight or as personal baggage. Held, that the company was not responsible for its loss, although the baggage master knew the character of the baggage, and received similar packages from other passengers."

Appellee's counsel take great comfort in the decision of this court in the case of Yazoo, etc., R. R. Co. v. Insurance Co., 85 Miss. 7 (S.C., 37 So. 500). We cannot understand that case as giving any comfort to appellee, except as to certain dicta therein in which the court undertake to say that, upon proper notice, etc., given the carrier, it might be held responsible for merchandise, etc. As we read the insurance company case, we interpret the holding of the supreme court as not favorable to the appellant's side of the case, but in all of the decisive positions in that case the decision is in favor of appellant in this.

Miller & Baskin, for appellee and cross-appellant.

This court, in the case of Yazoo, etc., R. R. Co. v. Insurance Co., 85 Miss. 7 (S.C., 37 So. 500), use this language: "It is not a case where the railroad company has consented to receive or accept these memoranda as baggage knowingly, or in accordance with any usage or custom of the railroad." We understand the court to mean that the converse of the proposition would make it baggage--that is, if it had been the custom or usage of the railroad company to receive articles such as was sued for in the instant case, then the railroad company would be estopped from denying that it was baggage, and it would follow that, having lost or destroyed the baggage, it would respond, as required by statute.

The recent case of Zeigler Bros. v. Mobile, etc., R. R. Co., ante, 367, is a case where the drummer checked his sample trunks, and in which case Code 1892, § 3569, is quoted. We find the following language: "Section 3569 provides that if baggage be 'carelessly or willfully' injured or lost by improper handling or otherwise, the railroad company handling the same shall be liable to the owner in a sum 'not less than double the amount of actual damage.'" The language of the court, after quoting said statute, is as follows: "These mandates of the law evidence an intention of imposing not only a strict liability, but a high degree of care, upon railroad companies in handling the baggage of passengers. . . . The passenger produced his check for the baggage, and proved that it had not been delivered. This made out at least a prima facie case for appellant. This cast on appellee the burden of either producing the baggage or showing legal cause of exculpation from liability."

In the instant case, we show not only that Shackelford had his check, but that the railroad company sought him and told him that his baggage was destroyed, and asked for a statement of the contents of the baggage, which was given on or about April 22, 1905, and sent to the superior officers of the railroad company; that the railroad company failed, up to September 22, 1905, either to produce his baggage or to pay him anything for it, so that he was compelled to sue. And surely, when he is compelled to go to court in order to obtain his rights, he ought to have those that were given to him by the plain language of the statute--that is, the sum of $ 156.18. This is the least amount of damages that the jury could have found in his behalf, and the learned judge below had no right to deprive him of this judgment if the jury found in his behalf.

OPINION

WHITFIELD, C. J.

On April 22, 1905, Lee Shackelford, the appellee and cross-appellant herein, a drummer for the Melton Hardware Company, applied for and obtained from the agent of the appellant, the New Orleans & Northeastern Railroad Company, at Vossburg, Miss. a check for his sample case, having supplied himself with a thousand-mile ticket over said road, and, with his mileage ticket and a check for his sample case as baggage, he boarded the train of the said appellant to go from Vossburg to Pachuta. He arrived at Pachuta about twelve o'clock at night, and went afterwards in search of his baggage, which had been checked, and was met by the agent of the appellant railroad company at Pachuta and informed that his baggage had been destroyed or stolen, and was asked by the agent to give him the amount of the contents of the said baggage, or sample case, which he accordingly did, and the agent forwarded said statement of the contents and value of said sample case to a superior officer of the railroad company. Not having been paid for the sample case and contents, he afterwards--to wit, on September 22, 1905--instituted this suit before a justice of the peace for double the value of the property, as shown by the record. Thereupon a trial was had before said justice of the peace, and the market value of said property so lost and destroyed was shown to be $ 78.09, and he obtained a judgment for $ 156.18--the same being double the value of said property, as claimed, under Code 1892, § 3569, together with all the costs expended in said cause.

From this judgment there was an appeal taken by the New Orleans &amp Northeastern Railroad Company to the circuit court, in which court a trial was had, in which it was shown by the testimony of the plaintiff that he was a drummer, and had traveled over the railroad for two years, and that it was customary for the railroad company to check drummers' samples; that in this particular case, the agent of the railroad company knew that it was a sample case at the time he gave plaintiff the check for the same, and plaintiff offered the check and read it to the jury, and that plaintiff had said sample case checked as baggage from Vossburg to Pachuta. The plaintiff also stated that the sample case was unlike any other receptacle used in traveling--that is, unlike a suit case or valise; that it was heavy, and at the time that the agent gave him a check for it he spoke of the weight of it, and the agent's testimony shows that he knew it was many times heavier than a valise in which are carried personal effects. The sample case, above mentioned, was never delivered to the appellee, nor was any account ever made of it except to report its loss or destruction. Plaintiff asked the court to instruct the jury that, if they found for the plaintiff, their verdict should be for double the fair market value of the property sued for, which instruction was by the court refused, and the jury were confined, in the...