Kansas City, Ft. S. & M. Ry. Co. v. McGahey

• Decision Date: 09 January 1897
• Citation: 38 S.W. 659
• Parties: KANSAS CITY, FT. S. & M. RY. CO. v. McGAHEY.
• Court: Arkansas Supreme Court

Page 659

38 S.W. 659

KANSAS CITY, FT. S. & M. RY. CO. v. McGAHEY.

Supreme Court of Arkansas.

January 9, 1897.

Appeal from circuit court, Sharp county; John B. McCaleb, Judge.

Action by J. H. McGahey against the Kansas City, Ft. Scott & Memphis Railway Company for the loss of baggage. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Wallace Pratt and Olden & Orr, for appellant. Phillips & Horton, for appellee.

BATTLE, J.

"Baggage," as defined by Lord Chief Justice Cockburn in Macrow v. Railway Co., L. R. 6 Q. B. 612, is "whatever the passenger takes with him for his personal use or convenience, according to the habits or wants of the particular class to which he belongs, either with reference to the immediate necessities or to the ultimate purpose of the journey." As said by Mr. Justice Field in Railroad Co. v. Swift, 12 Wall. 272, the contract of the carrier to carry a passenger, as to baggage, "only implies an undertaking to transport such a limited quantity of articles as is ordinarily taken by travelers for their personal use and convenience, such quantity depending, of course, upon the station of the party, the object and length of his journey, and many other considerations." Under the statutes of this state, "each passenger who shall pay fare * * * shall be entitled to have transported along with him, on the same train, and without additional charge, one hundred and fifty pounds of baggage, to consist of such articles as are usually carried by ordinary persons when traveling." Sand. & H. Dig. § 6215. With the exception of the amount of the baggage, the statute is substantially the contract of the carrier with the passenger, as stated in Railroad Co. v. Swift, supra.

What is baggage, within the rule of the carrier's liability, is often difficult to determine. It depends, as already stated, in a great measure upon the condition in life of the passenger, and the length, nature, and object of his journey. According to this criterion, the following articles have been held to constitute baggage: The wearing apparel of the passenger in all cases; the easel of an artist on a sketching tour; the gun or fishing tackle of the sportsman when on a hunting or fishing excursion; the costly laces of a lady of wealth, high rank, and social standing, traveling on a railway; "a manuscript price book, which a commercial agent took in his valise, and used in making sales"; the surgical instruments of a surgeon in the army, traveling with troops; a few books carried for amusement or entertainment; and the manuscript books of the passenger used in the prosecution of his studies. Many cases upon this subject have been collected in a valuable treatise by Judge U. M. Rose upon the "General Liability of Carriers of Passengers for Baggage," in 2 Am. & Eng. R. Cas. (N. S.) 1.

When a passenger presents to the carrier for transportation his goods and chattels, and makes known what they are, or exposes them to view, or packs them in a way to give to any one concerned good reason to understand and know that they are not usually carried as baggage, and demands transportation of them as his luggage, and the carrier receives and carries them accordingly, he will be responsible for them as baggage, notwithstanding he was not bound to accept and transport them as such. If he wishes to avoid responsibility for them as baggage, he must refuse to receive them in that way. Railway Co. v. Berry, 60 Ark. 433, 30 S. W. 764; Minter v. Railroad Co., 41 Mo. 503; Sloman v. Railway Co., 67 N. Y. 208; Railway Co. v. Shepherd, 8 Exch. 30; Mauritz v. Railroad Co., 23 Fed. 765; Waldron v. Railroad Co. (Dak.) 46 N. W. 456; Oakes v. Railroad Co. (Or.) 26 Pac. 230; Railroad Co. v. Swift, 12 Wall. 262; Railroad Co. v. Capps, 16 Am. & Eng. R. Cas. 118; Packet Co. v. Gattman, 127 Ill. 598, 20 N. E. 662.

In Railway Co. v. Berry, 60 Ark. 433, 30 S. W. 764, this court held "that where a passenger, who is ignorant of the rules or instructions of railway companies forbidding agents to receive money for transportation as baggage, delivers to the baggage agent more money than the carrier is required to transport, and informs the agent of the amount (it being inclosed in the baggage, and concealed from view), if he accepts it to ship as baggage, and a loss occurs, the carrier's common-law liability will attach."

In Minter v. Railroad Co., supra, a passenger delivered his trunk and a piece of carpet to the baggage master of a railroad company. The carpet was exposed to view. The passenger received a check for the trunk, but was told that none was necessary for the carpet, as it would go safely. The carpet was lost, and a suit was brought for the recovery of its value. The court held that, inasmuch as the railroad company had received and treated the carpet as personal baggage, it was liable for the loss of it, although, by the printed rules of the company, the baggage master was forbidden to receive as passenger's baggage articles of merchandise.

In Sloman v. Railway Co., supra, the plaintiff's son, a lad 18 years of age, was employed by him as traveling agent, to sell goods by sample. He had two large trunks containing the samples, and a valise for his personal baggage. The trunks did not present the appearance of ordinary traveling trunks. They were 30 inches long, 27 deep, and 24 wide. One was covered with oil-cloth, and the other was of wood. "He delivered the trunks to a baggage master at a railroad depot, and, when asked where he wanted them checked to, replied that he did not then know, as he had sent a dispatch to a customer at Fentonville to know if he wanted any goods; if not, he wanted them to go to Rochester, where he expected to meet some customers. Soon after, he had them checked to Rochester, paying two dollars, and receiving a receipt ticket for them, headed `Receipt Ticket for Extra Baggage and Dogs.'" The court held that the jury were authorized by these facts to infer that the baggage master understood that the agent was traveling for the purpose of selling goods, and that these trunks contained his wares, and that he was not entitled to have them carried as his ordinary baggage, and further held that the railroad company, having this notice, was responsible for the loss of the trunks and their contents.

Some courts hold that where a railroad company receives for transportation property which it is not bound by its contract with the passenger to transport as personal baggage, of which it has notice, it must be considered to assume, with reference to such property, the liability of a common carrier of merchandise (Railroad Co. v. Swift, supra; Sloman v. Railway Co., supra); while others say that if it received the property, under such circumstances, as baggage, it will be responsible therefor as a common carrier, and will be estopped from denying that it was baggage (Railroad Co. v. Capps, 16 Am. & Eng. R. Cas. 118; Minter v. Railroad Co., 41 Mo. 503; Hoeger v. Railroad Co., 63 Wis. 100, 23 N. W. 435; Railroad Co. v. Conklin, 32 Kan. 55, 3 Pac. 762; Butler v. Railroad Co., 3 E. D. Smith, 571; Railway Co. v. Berry, 60 Ark. 433, 30 S. W. 764). It seems to us the latter view is sustained by the better reason and weight of authority; but, be that as it may, the liability of the carrier for loss and damage in transportation in either case is the same.

In the case under consideration, the plaintiff, McGahey, purchased for himself and his family, consisting of a wife and three small children, three tickets, which entitled him to transportation for himself and family and 450 pounds of baggage over the railway of the defendant railroad company, from Sulligent, in the state of Alabama, to Mammoth Springs, in this state. He delivered to the company his baggage, which was contained in two trunks and three boxes, and weighed over 500 pounds, and paid the usual rate for the...