Brick v. Atl. Coast Line R. Co

• Citation: 145 N. C. 203,58 S.E. 1073
• Parties: BRICK v. ATLANTIC COAST LINE R. CO.
• Decision Date: 16 October 1907
• Court: North Carolina Supreme Court

58 S.E. 1073

(145 N. C. 203)

BRICK

v.ATLANTIC COAST LINE R. CO.

Supreme Court of North Carolina.

Oct. 16, 1907.

1. Judgment—Res Judicata.

A judgment of the Supreme Court, affirming a judgment for defendant rendered on appeal from a justice's judgment on the ground that the justice had no jurisdiction of the subject-matter, is not a bar to a subsequent suit on the same cause of action.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 1001, 1009.]

2. Carriers—Transportation of Baggage— Liability.

A carrier is an insurer of the personal baggage of a passenger.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, § 1519.]

3. Same—Personal Baggage—What Constitutes.

The personal baggage of a passenger includes jewelry carried for his personal use, but not that carried for sale or for the use of another.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 1520-1528.]

4. Same—Carriage of Baggage.

The carriage of the personal baggage of a passenger is incident to the ticket purchased, and is personal to the user of the ticket, except where several members of a family are traveling together, in which case articles belonging to them may be checked as the baggagp of one.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, § 1507.]

5. Same—Loss of Baggage—Right of Action.

Where the user of a ticket was not the owner of the goods checked as baggage, and he and the owner were not traveling together, the owner was the proper party to sue for loss of the baggage, and not the user of the ticket.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, § 1559.]

6. Same—Liability of Carrier.

Where goods not the personal baggage of a passenger are checked as his baggage without the fact being brought to the knowledge of the carrier, the carrier is liable only as a gratuitous bailee, and to recover for a loss gross negligence or willful injury must be clearly shown.

7. Appeal—Review—Harmless Error.

In an action against a carrier by the owner of lost baggage, which had been checked on a ticket bought for another person, a charge that plaintiff could not recover, while error, because the carrier, being a gratuitous bailee, was liable for gross negligence, was harmless; there being no evidence of gross negligence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4219-4228.]

Appeal from Superior Court, Robeson County; Webb, Judge.

Action by A. B. Brick against the Atlantic Coast Line Railroad Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.

See 55 S. E. 194.

The plaintiff sued to recover the value of the contents of a trunk by him delivered to the defendant. It was in evidence that the plaintiff, who was a merchant, packed the trunk with certain wearing apparel, and also placed therein certain jewelry. The plaintiff purchased a ticket and checked the baggage and delivered the ticket to his brother, whowas a clerk in the employ of plaintiff, and who was going to Chadbourne for the purpose of clerking in the plaintiffs store. Plaintiff's brother used the ticket The jewelry was to be sold in plaintiff's store at Chadbourne. Demand was made upon the defendant for the baggage, and it has failed to produce same or account for its nonpro-duction. It is admitted that the defendant had no knowledge of the contents of the trunk. The value of the wearing apparel was $46.75, and the jewelry $207.83. On the trial of a former action before the justice, plaintiff remitted all of his claim in excess of $200. The justice rendered judgment for plaintiff, and defendant appealed. Upon the trial in the superior court, his honor charged the jury that in no event could the plaintiff recover the value of the jewelry. Thereupon a verdict was rendered for $46.75, the value of the wearing apparel, and plaintiff appealed to the Supreme Court. This court affirmed the judgment below, declaring that the justice had no jurisdiction of the cause of action for the value of the jewelry, inasmuch as this demand was in tort and in excess of $50. 142 N. C. 359, 55 S. E. 194. Thereupon the plaintiff instituted this new action in the superior court, founded in tort, asking for the recovery of the value of the jewelry. A jury trial was waived, and thereupon the court found the facts to be as testified to by the plaintiff on the former trial. His honor further found the value of the jewelry to be $207.83. Upon the uncontroverted facts his honor, being of opinion that the plaintiff could not recover, nonsuited the plaintiff, and he appealed.

Mclntyre & Lawrence, for appellant.

McLean, McLean & McCormick, for appellee.

CLARK, C. J. The plaintiff is not estopped by the former judgment (142 N. C. 359, 55 S. E. 194), because it was held therein that the court of justice of peace (in which that action began) had no jurisdiction as to the tort for nondelivery of the jewelry. The subject-matter of this action was not passed upon, and could not have been, in that action. Harrington v. Hatton, 130 N. C. 89, 40 S. E. 848; Smith v. Garris, 131 N. C. 34, 42 S. E. 445.

The common carrier Is "insurer of the personal baggage of the passenger, and this Includes jewelry, carried for the personal use of the passenger, to a...