Lake Shore & M.S. Ry. Co. v. Foster

• Decision Date: 29 December 1885
• Parties: Lake Shore & M. S. Ry. Co. v. Foster.
• Court: Indiana Supreme Court

104 Ind. 293

4 N.E. 20

Lake Shore & M. S. Ry. Co.

v.Foster.

Supreme Court of Indiana.

Filed December 29, 1885.

Appeal from Elkhart circuit court.

J. A. S. Mitchell, for appellant.

H. C. Dodge, for appellee.

ZOLLARS, J.

Appellee brought this action to recover the value of a trunk and its contents. Her counsel concede that the evidence in the case is correctly set out in appellant's brief. As there set out, it is as follows, except some immaterial omissions. Mary Foster, the plaintiff, testified:

“On the seventeenth day of November, 1882, I was going to Chicago on a visit, and on the evening before tried to find a man to take my trunk to the depot. I met Mel Quimby, and he said he would send a man. Will Spicer came to take my trunk. I told him to take it to the depot, and tell the baggage-man that I was going off on No. 5 the next morning. He is express-man for Mr. McGowan. I delivered the trunk to Will Spicer, the express-man, about half past nine o'clock on the evening of the fifteenth of November, 1882. I was to go off at 4:25 the next morning. The next morning, when I got my ticket, I went to the baggageman in the baggage-room and asked for my trunk. He said: ‘Which one of these trunks is yours?’ I said: ‘None of them.’ I asked Mr. Quimby the evening before to get the trunk checked. Mr. Wilcox said he did not know where my trunk was; that he had not seen it since immediately after the departure of No. 6 the night before, and that there had been baggage stolen there before from the platform. He said: ‘We do not take in baggage unless it is checked.’ I had sent my trunk down once before when I went east, and found it was all right. I had my wearing apparel in the trunk. An over-skirt and dress worth $40; a green dress worth $5; a dress-skirt worth $1; a hat, $7.50; oil paintings, $9; gold cross, $5; jewelry, $12; shawl, $3.50; table spread and napkins, $3.15; handkerchief and ties $2; a small gold watch, $15; and other articles I did not remember when I gave Mr. Dodge the list, but have missed since. When I did not find my trunk, I went back home, and did not go to see anybody until about 7 o'clock. I called at Colonel Tucker's office to see about it. Mr. Tucker said he would see that it was all made right, and would hunt it up for me. After buying the ticket I called for my trunk, but did not get it. I got it the next afternoon with two articles in it, and they were spoiled. Marshal Miller brought it to me. I have never been paid for those goods. The total value is $125.00.”

William Spicer, being called on behalf of the plaintiff, testified as follows:

“I live at Elkhart. Mr. Quimby saw me at the depot, and asked me if I would go and get a trunk up at Hayden's barber shop, and I went. Miss Foster gave me the trunk, and told me to take it to the depot, and I did. I put it where Quimby told me. He said: ‘Put it down there under the eaves in the dry.’ It was raining. I did so, and went off. I put it down under the eave of the depot building, near the baggage-room door. The baggage-man was not there. I have not hauled baggage long, only about a month. I deliver baggage to and from every train from the hotels. Sometimes we put it on the platform, and under the eaves. I was not acquainted with Mr. Wilcox. I knew the baggage-man when I saw him. He would take baggage when the owners came to get it checked. He would not take it until owners came to get it checked.”

Mel Quimby, being called upon to testify on behalf of the plaintiff, testified as follows:

“On the evening of November 16, 1882, it was raining. I was going to Chicago on No. 5 the next morning. I met Miss Foster, and walked up street with her. I said to her: ‘I am going to Chicago in the morning;’ and said, ‘I must go and get my trunk checked.’ She said she was going too, and asked me to get hers checked too. I employed Spicer to get her trunk and bring it to the depot. He went after the trunk with a truck. I was there when he came with it. I said to Spicer: ‘Dump it right down here near the baggage-room door, under the eaves, in the dry.’ I went to reach for the door, and Mr. Wilcox stepped out. He is the baggageman. I had started to open the baggage-room door. I said to Wilcox: ‘Here is a trunk for No. 5; put it in the baggage-room.’ He said: ‘No; leave it out there; it will be all right.’ This was about half past nine o'clock. It was Miss Foster's trunk.”

Henry Wilcox, being called on behalf of the plaintiff, testified as follows:

“I live in Elkhart. On November 16th I was employed in checking baggage. I was the night baggage-man. I receive baggage for the company when a ticket is presented, and then give a check for it, but not without. Quimby called my attention to the matter of the trunk the next morning, but not that night. He asked me the next morning whether I saw the trunk. I did not see Quimby at all the night before, and he did not call my attention to any trunk the night before. I did not tell him to leave it there. I did not know he left a trunk on the platform.”

On cross-examination:

“My duty was to receive baggage of passengers when they had tickets. I received baggage when persons had tickets, but not otherwise. I received trunks at the baggage-room door if persons were going away at once on the train; otherwise, in the room only,-when they got tickets and their trunks checked, and not otherwise. When baggage is put in the room unchecked it is at their own responsibility, and persons are told so. Quimby never called my attention to any trunk that night. I did not see him that night. Saw him in the morning when he was going off on No. 5. He came to get his trunk checked. He and Miss Foster asked about her trunk. I told them I didn't know anything about her trunk. Mr. Quimby did not claim that he called my attention to the trunk the night before; and never said anything about the trunk being there the night before. I never saw the trunk. It never was delivered to me, nor my attention called to it.”

On redirect examination:

“I said to Quimby and Miss Foster the next morning that I saw a trunk the night before, after No. 6 left, sitting about eight feet from the baggage-room door under the eaves; but that I did not know whose it was. I locked up the baggage-room when I left. I saw a trunk sitting there, but I did not know whose it was.”

Re cross-examination:

“Trunks are often left sitting there on the platform soon after trains arrive or just before they depart, but I pay no attention to them until they are pointed out to me by some one who wants them checked. The principal baggage-man is Mr. Barbour. His assistant is Mr. Hockman. I am night baggage-man. No one called my attention to the trunk the night before when it was left there.”

Redirect:

“I was discharged by the company soon after the loss of the trunk. I did not understand why. Heard it was something about the police duty. I was re-employed again.”

C. W. Green testified on behalf of the plaintiff as follows:

“I am the station agent of the Lake Shore & Michigan Southern Railway Company at Elkhart, and have charge of the company's business there. Mr. Wilcox was the night baggage-man for the Lake Shore & Michigan Southern Railway Company at Elkhart, Indiana, on November 16, 1882. The baggage-room in which Mr. Wilcox worked was the baggage-room of the Lake Shore & Michigan Southern Railway Company. He had authority to receive and check the baggage of passengers. The Lake Shore & Michigan Southern Railway Company is an incorporated company, I suppose, and is engaged in carrying passengers in and through the county of Elkhart and state of Indiana.”

On cross-examination:

“The baggage-man has no authority to receive baggage, except on presentation of a ticket showing the destination of the owner,-then the baggage is checked and received by the company. The company takes no charge of it until it is presented to the agent and checked. It would be impossible to do it otherwise. The company could not look after trunks that persons leave on the platform, and it never does do so until they are placed in charge of the baggage-man and checked. It occurs frequently that trunks are left on the platform by parties, but the baggage-men pay no attention to them until they are presented to them to be checked.”

Appellant demurred to the evidence. The court overruled the demurrer, and rendered judgment for appellee. Appellant prosecutes this appeal, and insists upon a reversal of the judgment, upon the grounds: First. There is no evidence that the trunk was ever delivered to or received by the appellant or its agent. Second. There is no evidence that the appellant's agent had any authority to receive the trunk in the absence of the appellee, and in advance of the time when she proposed to become a passenger on its train. Third. The evidence introduced by the appellee shows affirmatively that the appellant's agent had no authority to receive the trunk in the manner it was received by him.

It should be remembered at the outset that the case must be disposed of upon the demurrer to the evidence. So far as the questions have been presented, this court has, upon ample authority, laid down the following rules to be applied in passing upon such a demurrer.

First. A demurrer to the evidence admits all facts which the evidence tends to prove, or of which there is any evidence, however slight, and all inferences which can be logically and reasonably drawn from the evidence. Lindley v. Kelley, 42 Ind. 294;Newhouse v. Clark, 60 Ind. 172;Griggs v. Seeley, 8 Ind. 264;City of Indianapolis v. Lawyer, 38 Ind. 348;Eagan v. Downing, 55 Ind. 65;Pinnell v. Stringer, 59 Ind. 555;Thomas v. Ruddell, 66 Ind. 326;Atherton v. Sugar Creek, etc., Turnpike Co., 67 Ind. 334;Miller v. Porter, 71 Ind. 521;Ohio & M. Ry. Co. v. Collarn, 73 Ind. 261;Nordyke v. Van Sant, 99 Ind. 188;Kincaid v. Nicely, 90 Ind. 403;Hagenbuck v. McClaskey, 81 Ind. 577.

Second. The above rule has reference to the evidence of the party adverse...