Cantling v. Han. & St. Joe. R.R. Co.

• Decision Date: 31 October 1873
• Citation: 54 Mo. 385
• Court: Missouri Supreme Court
• Parties: JACOB CANTLING, Respondent, v. HAN. & ST. JOE. RAILROAD COMPANY, Appellant.

54 Mo. 385

JACOB CANTLING, Respondent,

v.HAN. & ST. JOE. RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1873.

Appeal from Macon Circuit Court.

James Carr, for Appellant.

I. A dog is not baggage. Respondent had no legal right to have the dog in controversy carried; and if the appellant had refused to carry the dog it would not have been guilty of a breach of duty. (Bell vs. Drew, 4 E. D. Smith, 59; Hawkins vs. Hoffman, 6 Hill, 585; Cin. & Ch. R. R. Co., vs. Marcus, 38 Ill., 219; Pardee vs. Drew, 25 Wend., 459; Collins vs. Boston & M. R. R. Co., 10 Cush., 506; Orange Co. Bank vs. Brown, 9 Wend., 86; Harris vs. Han. & St. J. R. R. Co., 37 Mo., 307.)

II. Carrying a dog may be regarded more in the light of carrying live animals than baggage. The appellant is not liable for the loss of live stock unless guilty of negligence. (Carr vs. Lancashire & York R'way, 7 Exch., 712; McManus vs. Lancashire R'way Co., 2 Hurl. & N., 693; Palmer vs. Grand Junction R'way Co., 4 Mees. & W., 758; Clark vs. Rochester & S. R'way Co., 14 N. Y., 573; Mich. South. & N. Ind. R'way Co., vs. McDonough, 21 Mich., 165; Smith vs. New Haven & Northampton R. R. Co., 12 Allen, 531; North Eastern R'way Co. vs. Richardson & Cisson, 26 L. T., [N. S.] 131; Boyce vs. Anderson, 2 Pet., 150.)

III. The appellant was not acting in its capacity of common carrier in carrying the respondent's dog; the most favorable aspect in which the case can be viewed for the respondent is, that the appellant, was a private carrier for hire; and as such, it is only liable in case of negligence. (Ang. Car., §§ 46, 54; Story Bailm., § 495; Satterlee vs. Groat, 1 Wend., 273; Wells vs. Steam Nav. Co., 2 N. Y., 204; Caton vs. Rumney, 13 Wend., 389; Runyan vs. Caldwell, 7 Humph. 134; Alexander vs. Greene, 3 Hill, 9; Brind vs. Dale, 8 Car. & Payne, 207.)

Williams & Ederman, for Respondent, cited in argument, Brill vs. Flagler, 23 Wend., 355; 5 Seld., 188; 28 Mo., 127; 2 Redf. R'way [4 Ed.], 91-9.)

NAPTON, Judge, delivered the opinion of the court.

This action originated before a justice of the peace, to recover the value of a dog, alleged to be worth ninety dollars. It is averred that the dog was delivered to the baggage master of a train on which plaintiff was a passenger; and that the baggage master agreed to transport the dog to New Cambria, for $1.50 which was paid, and to deliver him at New Cambria to said plaintiff. The dog was lost and plaintiff therefore sued the R. R. Co., defendant.

The plaintiff recovered before the justice, had a verdict and judgment for $90, from which defendant appealed to the Circuit Court.

The facts as they appeared on the trial were about these. The plaintiff, on his return from a hunting excursion, took passage on the defendant's road at St. Joseph, and took the dog with him into the coach. About an hour after the train started, he was told by a brakesman that dogs were not allowed to ride in the passenger coaches, and that the dog must be put in the baggage car, and subsequently the plaintiff received the same information from the baggage master; whereupon the baggage master took the dog in the baggage car, and the plaintiff, after inquiring about the charge, paid the baggage master $1.50 for the transportation of the dog to New Cambria.

The principal witness for plaintiff proposed to state the value of the dog, but this was objected to on the grounds that dogs had no marketable price, and that the dog in question was not shown to possess any peculiar qualities which would make him vendible; but this objection was overruled and the witness said the dog was worth $100, after previously stating that the dog was a well trained setter and particularly valuable as a water dog. The same witness was asked what he gave for the dog, and this question was objected to as immaterial and the objection sustained.

Several witnesses were examined as to the value of hunting dogs and testified about their price varying from 50 to 75 dollars, admitting however that this depended very much on the fancy of the purchaser.

It seems, that certain rules on the subject of baggage had been at the time of this occurrence adopted by defendant, and posted up in printed form at the various R. R. stations. The only important part of these regulations is the following, “Live animals are allowed as baggagemen's perquisites.” The general baggage agent of defendant stated in his deposition that “it is the custom of R. R. Co. to allow baggagemen to receive and transport dogs on their own personal account and personal responsibility to their owners. None of the companies receive any part of the compensation or assume any of the responsibility for the care or delivery of such dogs.”

There was no evidence that the plaintiff knew of any such regulations, except from their being posted up as above stated.

The dog in question was not injured or lost, in the course of transportation, but the baggage master delivered the dog to some person, not the plaintiff, and at some way station, not New Cambria, and so the plaintiff lost him.

The court declared the law to be, that a dog is not baggage, and that defendant, as a common carrier, was not bound to receive and carry a dog in a passenger coach or in a baggage car attached thereto, although the owner was a passenger and that the measures of damages in the event of a finding for the plaintiff, was the actual market value of the dog in the vicinity of New Cambria and not any fanciful price of the owner.

The court also refused two instructions which are as follows: 1st. The defendant may make a rule permitting its baggage master to take a dog owned by a passenger upon one of its passenger trains into the baggage car of said train, for the accommodation of such passengers, and to receive the perquisites for feeding and watering and taking care of such dog for such passenger, and in the event that such dog should never be delivered to such passenger by said baggage master, the defendant would not be liable to him for failing to deliver such dog. 2nd. If the Court believe from the evidence that the plaintiff without the knowledge or consent of the agents or employees conducting and managing the train on which plaintiff took passage, took the dog sued for into one of defendant's passenger coaches...