The Mich. Cent. R.R. Co. v. Carrow

• Decision Date: 30 September 1874
• Parties: THE MICHIGAN CENTRAL RAILROAD COMPANYv.WILLIAM J. CARROW.
• Court: Illinois Supreme Court

73 Ill. 348

1874 WL 8990 (Ill.)

24 Am.Rep. 248

THE MICHIGAN CENTRAL RAILROAD COMPANY

v.WILLIAM J. CARROW.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Cook county; the Hon. LAMBERT TREE, Judge, presiding.

This was an action on the case, by the appellee against the appellant, as a common carrier, to recover the value of baggage and merchandise consumed by fire while in the defendant's baggage car. The defendant filed the general issue, and a trial was had, resulting in a verdict and judgment in favor of the plaintiff for $30,789.78.

Messrs. WALKER, DEXTER & SMITH, and Mr. O. H. BROWNING, for the appellant.

Messrs. HITCHCOCK & DUPEE, and Mr. ROBERT HERVEY, for the appellee.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

Two propositions are asserted, upon which it is attempted to maintain the present judgment: First, the company is liable as a common carrier of the goods destroyed; and, second, if not liable as a common carrier, it is liable for negligence as bailee. In order to maintain the first proposition, it is assumed such facts have been proven as would warrant the conclusion the company, when it received appellee's baggage, knew it contained merchandise. We adopt as an accurate expression of the law what counsel concede: that a traveler who presents to a carrier of passengers a trunk or valise, such as is commonly used for the transportation of wearing apparel, represents, by implication, that it contains only such articles as are necessary for his comfort and convenience on the journey, and if, in fact, it contains merchandise, the traveler is guilty of such fraud as to absolve the carrier from the extraordinary liability of an insurer.

But, to avoid the force of this principle, it is insisted, if property is received by a carrier without inquiry, he will be liable for its loss, whatever its value, if it is contained in such a parcel or box as to indicate its nature, or is so packed as not to mislead or deceive the carrier as to its contents, and induce him to believe it is of a different kind and of less value than it is in fact. The doctrine contended for has no application to the facts of this case. The company had no actual notice appellee's trunk contained anything other than his wearing apparel, and such articles of convenience as a passenger usually carries with him. It was brought to the company's depot with the other passengers' baggage, was checked as ordinary baggage, and was, with his knowledge and consent, placed in the common baggage car. He paid no extra compensation, nor did he bargain for any care in regard to it, other than such as it was the duty of the company to bestow upon the baggage of other travelers. There was nothing in the character of the trunk itself that indicated it contained valuable merchandise. It was such a trunk as is usually carried by commercial travelers. A person accustomed to seeing such trunks would, no doubt, recognize this as one of that class. Whether the baggageman who checked appellee's baggage had any knowledge of the use of such trunks, does not appear from anything in the evidence. He had no acquaintance with appellee, and did not know what his business was. But, conceding it was of such weight and structure as the baggage-master must have known it was a commercial traveler's trunk, he had no reason to suspect that, in addition to the articles usually carried by a traveler, it contained valuable jewelry, comprising a stock equal, if not exceeding, in value that which is commonly kept in a retail store. Appellee presented it as ordinary baggage, and the officer of the company had the right to rely upon the representation, arising by implication, that it contained nothing else. The law imposed no obligation upon him to make any inquiry as to the contents. Had the agent of the company been informed of the contents of the trunk, or had it been so packed that the nature of its contents was discernible, and the company, with such knowledge, undertook to carry the goods, there is no reason why it would not be liable as a common carrier, and so the authorities hold. But that is not this case. The carrier in this case had no knowledge of the contents of the package, either direct or constructive.

The cases that hold the doctrine, the carrier is to inquire as to the contents of the package offered, are in reference to carriers of freight, and not of passengers and their baggage. There is a reason for the distinction that will readily be perceived and appreciated. Carriers of freight receive all kinds of packages, some valuable and others of trifling value. This fact has been held to impose upon them the duty, in all cases, in the absence of fraud and deceitful practices, to inquire of the shipper as to the contents of the package, if they would protect themselves in the carriage of valuable freights. It is their duty to receive all kinds of freight, whether of great value or otherwise. The shipper is not bound, in the first place, to disclose the nature of the contents of the package, unless he is inquired of concerning it.

But this rule presupposes good faith in the shipper. If the owner be guilty of any fraud or imposition, in respect to the carrier, as to the nature and value of the parcel, he can not hold him liable, in the capacity of an insurer, for any loss that may occur. This is a reasonable and just rule. Fraud vitiates all contracts into which it enters. Common carriers are compelled, by the nature of their vocation, to transport goods for all classes of people, and while they are, for politic reasons, to be held to the strict liability of insurers of the parcels intrusted to their care, the law imposes the duty upon the owner to act with common honesty. He will not be permitted to practice any imposition upon the carrier, or delude him as to the nature and value of the goods to be transported. The authorities on this branch of the law are quite numerous, and it is not necessary to do more than to cite a few of them. 2 Kent, 603^* and 604^*; Story on Bailments, sec. 565; Cincinnati and Chicago Air Line Railroad Co. v. Marcus, 38 Ill. 219; Chicago and Aurora Railroad Co. v. Thompson, 19 Ill. 578; Relp v. Rapp, 3 Watts & Ser. 21.

But the rule is different in regard to the baggage of a traveler. As we have seen, the fact the traveler presents a parcel as baggage, whether contained in a trunk or satchel, or other convenient mode of carrying baggage, it is upon the implied representation it contains only baggage, and the carrier is not bound to inquire as to the specific contents. There is no reason for the adoption of any other rule. No considerations of public convenience require it. By common custom the personal luggage of the traveler is carried without extra charge. Passenger carriers do not assume to carry anything as baggage except such things as may be necessary to the convenience and comfort of the traveler, and perhaps sufficient money to defray the expenses of the journey. This fact is well known to all persons who seek passage in railway carriages. With a great majority of travelers the amount of baggage carried is of no considerable value. The companies have no arrangements for the carrying and safe keeping of costly articles. The contract is simply for passage and the usual personal baggage, not exceeding in weight the amount prescribed by the regulations of the company.

If this implied contract with the carrier of passengers is to be varied, modified or enlarged, it must be by direct notice of the contents of the package offered as baggage, which, in effect, would amount to a special contract. The company may rely upon the representation that whatever is offered as baggage is that, and nothing else. The law seems to be settled it need not inquire as to its contents. If the passenger has merchandise checked as baggage without such notice, the company can not be held liable as a common carrier. Cahill v. L. & N. W. Ry. Co. 10 C. B. (N. S.) 154; Chicago and Cincinnati Air Line Railroad Co. v. Marcus, supra; Collins v. Boston and Maine Railroad Co. 10 Cush. 506; Great Northern Railroad Co. v. Shepherd, 8 W. H. & G. 30; Batson v. Donovan, 4 B. & A. 21.

Upon the doctrine of these cases, it is very clear appellant was not a common carrier of the goods destroyed. Appellee gave the agents of the company no notice whatever his trunk contained valuable merchandise. No one knew better than appellee the company did not carry merchandise as baggage, free of charge, and without notice of the contents of the trunk there is neither reason nor authority for holding the company liable as an insurer against loss. In Cahill v. L. and N. W. Railway Co. supra, Willis, J., very aptly remarks, that “where a passenger takes a ticket at the ordinary charge, he must, according to common sense and common experience, be taken to contract with the railway company for the carriage of himself and his personal luggage only, and that he can no more extend the contract to the conveyance of a single package of merchandise than of his entire worldly possessions.” So we say in this case, it was not in the power of appellee to extend the liability of the company on account of his own convenience. There was no undertaking to carry merchandise, and he had no right to impose his goods subtilely upon the company, and then seek to make the obligation that of a common carrier. If he desired to have his merchandise or wares go upon the train with him, it was but just to the carrier he should disclose its nature and value, and if the company then chose to treat it as baggage, the liability of a common carrier would attach, but not otherwise.

The case of The Great Northern Railway Co. v. Shepherd, supra, is a case where the passenger had a quantity of ivory handles in his baggage. No notice was given, and it was not so packed as to indicate to the carrier it contained merchandise. It was decided the carrier of passengers...