Fleischman v. Southern Ry

• Decision Date: 08 March 1907
• Citation: 76 S.C. 237,56 S.E. 974
• Court: South Carolina Supreme Court
• Parties: FLEISCHMAN, MORRIS & CO. v. SOUTHERN RY.

76 S.C. 237

56 S.E. 974

FLEISCHMAN, MORRIS & CO.

v.SOUTHERN RY.

Supreme Court of South Carolina.

March 8, 1907.

1. Carriers—Baggage—Loss.

Where a carrier has some notice of the contents of trunks containing samples of merchandise, he is liable to the same extent as for personal baggage.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 1531-1534.]

2. Evidence—Judicial Notice.

The courts will take judicial notice of a general custom among carriers of transporting sample trunks as personal baggage.

[Ed. Note.—For cases in point, see Cent, Dig. vol. 20, Evidence, § 25.]

3. Appeal—Review.

The Supreme Court will not consider the constitutionality of a statute, where the question was not raised below.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1037.]

4. Carriers—Baggage—Sample Trunks.

Where a carrier voluntarily receives trunks containing samples an unreasonable time before the owner intended to take passage, it is liable for their loss as a warehouseman.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, §§ 1539-1543.]

5. Same—Evidence of Loss.

Where a passenger shows delivery of his baggage to a carrier and the carrier's failure to deliver the same, he makes out a prima facie case, and the burden is on the carrier to show that it has not converted the property.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 9, Carriers, § 1562.]

Appeal from Common Pleas Circuit Court of Richland County; Klugh, Judge.

Action by Fleischman, Morris & Co. against the Southern Railway. Judgment for plaintiffs. Defendant appeals. Affirmed.

E. M. Thompson, for appellant.

D. W. Robinson, for respondents.

WOODS, J. This is an action for the recovery of the value of two trunks of sample shoes destroyed by fire in the station of the defendant at Jonesville, S. C. The plaintiffs recovered judgment, and the defendant appeals, alleging error in the refusal to order a nonsuit and in the charge to the jury.

As no evidence was offered on the part of the defendant the case is to be considered in view of the facts testified to by the plaintiffs' witnesses: C C. Cooper, a traveling salesman for plaintiffs, who had been in the country selling shoes, on coming into Jonesville in the afternoon, carried his two trunks in a private conveyance to defendant's station and took the trunks out When he moved one trunk to the end of the station, and was in the act of moving the other to the same place, intending to leave them there, a negro porter came out of the station, and said, "Boss, we always lock the trunks up that are left here, " and then rolled the trunks in. The evidence tended to show the station agent of the defendant observed the act of the porter and made no objection. Cooper, the salesman, intended to leave Jonesville the next morning on one of defendant's trains, taking the trunks with him, but was uncertain whether he would go towards Asheville or Columbia. His intention with respect to the trunks was not communicated to the agent They were destroyed about 3 o'clock the next morning by a fire which burned the station. No evidence was offered as to the origin of the fire. The trunks were not represented to contain personal baggage; but, on the contrary, there was evidence tending to show notice to the agent of the character of the contents when he allowed them to be placed in the station. The size of the trunks, four feet long and three feet high, indicated they would not be carried by a traveler to contain his personal belongings going through the country in a private vehicle. The salesman, Cooper, testified: "Q. What sort of trunks were they? What was the size of the trunks? A. If there is any member of the jury who has ever seen a salesman's shoe trunk, he knows. I do not know what the trunks are made of." The motion for nonsuit, made on the ground that no other inference could be drawn from the evidence than that the defendant was a mere gratuitous bailee, and therefore not liable in the absence of proof of gross negligence, was properly refused; for, as will appear in the consideration of the exceptions to the charge, the question whether the defendant held the trunks as a common carrier or a warehouseman at the time of the fire was a question of fact for the Jury.

The defendant's first request to charge raises the question of the degree of liability of common carriers for trunks of samples taken by traveling salesmen with them for use in their business, without special notice to the carrier that they contain samples of merchandise. The request which the circuit judge refused was: "If the jury find from the testimony, if such testimony there be, that the trunks alleged to have been delivered to the defendant contained merchandise packed as baggage, then I charge you that the defendant could not be held responsible or liable for the loss or injury to the merchandise, except as a gratuitous bailee, unless its agent having control of the receipt of the baggage was informed or knew whatwas contained in the trunks." The cases In which the matter has been under review are cited in 6 Cyc. 668: Humphreys v. Perry, 148 U. S. 627, 13 Sup. Ct. 711, 37 L. Ed. 587; Trimble v. New York Cent, & Hudson R. R. Co., 162 N. Y. 84, 56 N. E. 532, 48 L. R. A. 115; New Orleans & N. E. R. Co. v. Shackelford, 87 Miss. 610, 40 South. 427, 4 L. R. A. (N. S.) 1035; Kansas City, M. & B. R. Co. v. Higdon, 94 Ala. 286, 10 South. 282, 14 L. R. A. 515, 33 Am. St. Rep. 119—and it will be found the proposition contained in the request has the sanction of many courts of high authority. Nevertheless we are unable to adopt it, because, as we shall endeavor to show, it leaves out of view a custom of business adopted by the railroads, now firmly established, which courts cannot refuse to recognize. Indeed, as has been remarked by another, the law as to the relation of carriers to trunks of samples carried by traveling salesmen is in a state of evolution, and we therefore feel free to adopt our own view untrammeled by the conclusions of other tribunals.

It is true as a general proposition, a common carrier is not liable for merchandise, as distinguished from personal baggage, which a passenger undertakes to carry as if it were personal baggage without the consent of the carrier; and it may be this rule should be held to apply even when the agent agrees to receive the merchandise as baggage, if the traveler knows in doing so he is violating a rule of the company. Weber Co. v. Railway Co., 84 N. W. 1043, 113 Iowa, 188. Personal baggage is not carried free. The charge for carrying it is estimated, and included in the price of the ticket The reason of the general rule that a traveler cannot take merchandise as baggage and hold the carrier liable is that the cost of carrying merchandise is not included in the passage money; and to allow it to be carried as baggage, and make the carrier liable for it as such, would be to sanction a fraud on the carrier in depriving it of its legitimate freight charges. But railroad companies themselves have chosen to modify this rule, for the advancement of their own business, by carrying the sample trunks of traveling salesmen as baggage, charging for the excess, when it with personal baggage, Is over a certain weight

It is true there was no proof in this case of the custom, but the court will take judicial notice of it. Courts do not require proof of the established business customs of the people whose affairs come before them; for, as has been well said, courts will not profess to be more ignorant than the rest of mankind. This custom of carriers as to salesmen's trunks of samples is as universal and as well known as the custom of checking ordinary baggage, and it would be as absurd for courts to require proof of one as of the other. It does not seem material how such trunks with their contents are designated—whether as baggage or freight The vital fact is that the railroads, with full knowledge of their character, receive them for transportation, carry them with the passenger on their passenger trains, and undertake to deliver them at his destination. In doing so the carriers themselves place sample trunks on the same footing as baggage, and as to such trunks and their contents they must be held to the same liability. The General Assembly recognized this course of railroads in treating salesmen's sample of merchandise on the same footing as personal baggage in the act of February, 1904 (24 St. at Large, p. 379), which provides "that on and after the approval of this act-by the Governor, all common carriers of passengers in this state using steam as a motive power shall safely transport to the destination of any passenger personal baggage or sample trunks or sample cases, not to exceed two hundred pounds in weight, for any one passenger holding a ticket or paying ordinary passenger fare, free of charge for such personal baggage, sample trunks or sample cases, and shall issue checks for such personal baggage or sample trunks or sample cases on request." We do not discuss the question of the right of railroad companies to make this discrimination in favor of salesmen's sample trunks, because that question could be made only by one who claimed to be discriminated against, and not by the railroad company. As we have endeavored to show, the plaintiffs' case does not depend upon the statute above cited. Its constitutionality was not drawn in question in the circuit court; hence any expression of opinion on that subject, though suggested by appellant's exceptions and argument, would be gratuitous.

In opposition to this view of liability for sample trunks, it is said great hardship would result, in that the railroad companies might be held responsible for samples of jewelry and...