Hubbard v. Mobile & Ohio Railway Co.
| Decision Date | 02 May 1905 |
| Citation | 87 S.W. 52,112 Mo.App. 459 |
| Parties | HUBBARD, Respondent, v. MOBILE AND OHIO RAILWAY COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Jesse A. McDonald Judge.
The appellant in this case is the Mobile & Ohio Railroad Company a corporation organized under the laws of the State of Alabama. The other defendant, the Terminal Railroad Association, is a corporation organized under the laws of the State of Missouri. On or about June 19, 1903, plaintiff became a first-class passenger on a train of the Mobile & Ohio Railroad Company at Cairo, Illinois, her destination being St. Louis, Missouri, to which point she paid her fare. She delivered her trunk to an employee of said railroad company at Cairo, Illinois, to be transported to St. Louis and received from the employee a baggage check for the trunk. Plaintiff had packed in a leather box in her trunk these articles of jewelry:
"Opera glasses and stick in lavender plush bag, one gold watch and chain, one enamel watch and fleur-de-lis pin, set with pearls, one pair gold bracelets, ruby set in each, one odd bracelet, one set, gold breast-pin and ear-rings, one diamond setting in each, one gold breast-pin and ear-rings containing five diamond settings, one gold crescent breast-pin set with pearls, one enameled four-leaf clover stick pin set with pearls, one handsome cameo ring, one turquoise ring, five stones, one opal ring, three stones, one emerald ring, one stone, one amethyst ring, one stone; one opal shirt stud."
Plaintiff reached the Union Station at St. Louis about seven-thirty p. m., June 19 and was met there by her brother, to whom she gave the check for her trunk. She went to her home at No. 4949 Fountain avenue that evening. The next morning her brother delivered the check to the Reliance Express Company and told that company to get plaintiff's trunk from the station and deliver it to her at her residence. The driver of one of the wagons of the express company called at the baggage department of the Union Station for the trunk, which was then in the custody of the Terminal Railroad Association, and on presentation of the check the trunk was delivered to him. The lock had been broken open and a rope tied around the trunk to keep the top on. The expressman refused to receive the trunk in that condition unless a notation was made by the agent of the Terminal Association showing that it had been broken open prior to the time it was turned over to the expressman. The trunk was taken from the Union Station about five o'clock Saturday afternoon and was delivered to the plaintiff the same evening in the condition it was in when the expressman received it. On looking over its contents plaintiff found the jewelry mentioned above had been abstracted. This action is to recover the value of the missing articles. No evidence was introduced by the defendants. That for the plaintiff goes to show the trunk was securely locked with the jewelry in question in it, when received and checked by the Mobile & Ohio Railroad Company at Cairo, Illinois. The testimony of the expressman was that the trunk had been opened before it was delivered to him and that whatever property was taken from it had been taken before then. Neither the ticket nor the baggage check issued to the plaintiff by the Mobile & Ohio Railroad Company was put in evidence, and all we know about the nature of her contract with said railroad company is that she paid her passage from Cairo to the Union Station in St. Louis and checked her trunk over the entire route.
The court instructed the jury, in effect, that if they believed plaintiff was a passenger from Cairo, Illinois, to St. Louis, riding on a first-class ticket which read from Cairo, Illinois, to the Union Station, St. Louis, Missouri, and plaintiff had delivered her trunk containing the articles in controversy to the Mobile & Ohio Railroad Company, at Cairo, Illinois, securely locked, and said railroad company accepted the trunk and contents as plaintiff's baggage, and the articles in controversy were being carried by plaintiff as part of her baggage and wearing apparel and for her personal use, and the trunk was delivered to plaintiff at the Union Station by the employees of the Mobile & Ohio Railroad Company within a reasonable time after its arrival, and that when the trunk was delivered to plaintiff the lock had been broken open and the articles enumerated stolen or lost in transit, the verdict should be for the plaintiff against the railroad company and the damages awarded should be the reasonable value of the articles as found from the evidence. The court refused a direction for a verdict in favor of the appellant, but granted that direction in favor of the Terminal Railroad Association. The appellant requested an instruction that if the jury found the plaintiff had delivered her trunk to appellant in good condition to be checked to St. Louis, and thereafter the said railroad company delivered it to the Terminal Association, the presumption is that the trunk was then in the same condition it was in when plaintiff delivered it to the Mobile & Ohio Company at Cairo, Illinois. This instruction was refused. The appellant also requested an instruction that if the jury believed the trunk was delivered to it at Cairo and was afterwards delivered by it (The Mobile & Ohio R. R.) to the terminal Railroad Association to deliver to the plaintiff, then before plaintiff can recover against said Mobile & Ohio Railroad Company she must show the damages occurred while the trunk was in its possession. Appellant excepted to the adverse rulings. The jury returned a verdict in favor of the plaintiff for $ 750.
Judgment affirmed.
R. P. & C. B. Williams for appellant.
(1) In the absence of evidence locating the damage to goods in transit over several connecting lines, a prima facie presumption arises that the last carrier is the negligent one. Lin v. Railroad, 10 Mo.App. 125; Crouch v Railroad, 42 Mo.App. 252; Flynn v. Railroad, 43 Mo.App. 424; Moore v. Railroad, 173 Mass. 335; Cate v. Railroad, 65 N.E. 400; Railway v Coolridge, 83 S.W. 232; Railway v. Birdwell, 82 S.W. 835; Faison v. Railroad, 69 Miss. 569; Railroad v. Harris, 26 Fla. 148; Railroad v. Edloff, 34 S.W. 414; Railroad v. Brown, 37 S.W. 785; Laughlin v. Railroad, 28 Wis. 204; Smith v. Railroad, 43 Barb. 225; Strong v. Railroad, 86 N.Y.S. 911; Shriner v. Railroad, 41 N.Y. 620; Express Co. v. Hess, 53 Ala. 19; Hutchinson on Carriers, section 761; Railroad v. Jones, 100 Ala. 263; Railroad v. Culver, 75 Ala. 587; Railroad v. McIntosh, 73 Ga. 532; McCormick v. Railroad, 4 E. D. Smith 181; Willett v. Railroad, 45 S. E. (S. C.) 93; Beebe v. Railroad, 90 Minn. 36; Railroad v. Shanley (Tex.), 81 S.W. 1014; Bebb v. Railroad (Tex.), 84 S.W. 663; Railroad v. Culver, 75 Ala. 587. (2) Plaintiff having in her amended petition specifically charged that the defendant was guilty of negligence in permitting her jewelry to be lost or stolen while in transit, was bound to make some proof of the specific charge, in order to make a prima facie case against this defendant. Milling Co. v. Transit Co., 122 Mo. 275, 26 S.W. 704; Read v. Railroad, 60 Mo. 199; Witting v. Railroad, 101 Mo. 631, 14 S.W. 743; Davis v. Railroad, 89 Mo. 340, 1 S.W. 327; Chitty v. Railroad, 148 Mo. 75, 49 S.W. 868; Waldier v. Railroad, 71 Mo. 514. (3) The amount and character of the articles contained in the trunk were so in excess of what is usually carried by ordinary passengers in their trunks, it became necessary as a part of plaintiff's case to show her financial condition, her social position, or her occupation, in order to be able to claim the value of the jewelry as baggage. Railroad v. Fraloff, 100 U.S. 24, 38 Central Law Journal, 5-6; 4 Elliott on Railroads, p. 2405; Dibble v. Brown, 56 Am. Dec. 460; Mauritz v. Railroad, 23 F. 765; Railroad v. Swift, 12 Wall. 272. (4) There being no evidence that the jewelry was lost, mislaid or stolen while in the possession of this defendant, and having delivered the trunk to the connecting carrier, which was deposited in its warehouse or baggage-room, and allowed by plaintiff to remain there for about twenty-four hours before being called for, this defendant could not be liable, and the Terminal Association would be liable, if at all, as a warehouseman and not as a common carrier. Gashweiler v. Railroad, 83 Mo. 112; Cohn v. Railroad, 59 Mo.App. 66; Ross v. Railroad, 9 Mo.App. 582; Hoeger v. Railroad, 63 Wis. 100; Railroad v. Mayhon, 8 Bush. 184; Jacobs v. Tutt, 33 F. 412; Lemon v. Chancellor, 68 Mo. 340; Lawson on Bailments, sec. 83, p. 141; Craig v. Childress, 14 Am. Dec. 751; Iron Works v. Hubburt, 158 N.Y. 34; Rankin v. Pacific Co., 55 Mo. 167; Holtzclaw v. Duff, 27 Mo. 524; Cramer v. Express Co., 56 Mo. 524; Eaton v. Railroad, 12 Mo.App. 386; Burdner v. Railroad, 13 Mo.App. 499; Transfer Co. v. Weiswanger, 18 Mo.App. 103; Budy v. Railroad, 20 Mo.App. 206; Hartman v. Railroad, 39 Mo.App. 88; Pindel v. Railroad, 41 Mo.App. 84; Ringwait v. Railroad, 45 Neb. 760; Nealand v. Railroad, 161 Mass. 67; Aiken v. Westcott, 123 N.Y. 363; Kohn v. Railroad, 115 N.C. 638; Cuimit v. Henshaw, 35 Vt. 605. (5) After the trunk arrived at its destination, and was unloaded into the baggage-room or warehouse, the relations of the parties changed, and the liability alone of warehouseman took the place of that of a common carrier. This defendant could in no event become liable to the plaintiff as a warehouseman, and such liability, if any existed, was against the Terminal Railroad Association alone. Gashweiler v. Railroad, 83 Mo. 112. (6) The articles lost not falling within the category of ordinary personal baggage, the defendant would not be liable for their loss or...
To continue reading
Request your trial