Merritt v. Lehigh Valley Railroad Co.

• Decision Date: 01 March 1912
• Docket Number: 73-1911
• Parties: Merritt, Appellant, v. Lehigh Valley Railroad Company
• Court: Pennsylvania Superior Court

49 Pa.Super. 219

Merritt, Appellant, v. Lehigh Valley Railroad Company

No. 73-1911

Superior Court of Pennsylvania

March 1, 1912

Argued October 16, 1911

Appeal by plaintiff, from order of C.P. Wyoming Co.-1903, No. 55 entering judgment for defendant n. o. v. in case of Merritt Elliott & Company v. Lehigh Valley Railroad Company.

Trespass to recover for the loss of two trunks and their contents. Before Staples, P. J., specially presiding.

The facts are stated in the opinion of the Superior Court.

Verdict for plaintiff for $ 509.12. Subsequently the court entered judgment for defendant n. o. v.

Error assigned was in entering judgment for defendant n. o. v.

H. S Harding, for appellant. -- A passenger must be allowed a reasonable time after the arrival of his baggage to call for and take it away: Moyer v. R. R. Co., 31 Pa.Super. 559; Frank v. R. R. Co., 9 Pa.Super. 129.

P. F. O'Neill, with him James L. Morris and F. W. Wheaton, for appellee. -- There was no obligation on the part of the railroad company to carry merchandise as baggage: Hannibal R. R. Co. v. Swift, 79 U.S. 262; Jacobs v. R. R. Co., 19 Pa.Super. 13; Bullard v. R. R. Co., 21 Pa.Super. 583; Alling v. R. R. Co., 126 Mass. 121.

There is no obligation on the part of the carrier to carry the baggage of any other than the person who is riding on the ticket: Bullard v. R. R. Co., 21 Pa.Super. 583.

The railroad company made no express contract to carry the trunks and their contents as baggage for the appellants: Blumantle v. R. R. Co., 127 Mass. 322.

Even if it had been shown that the trunks were expressly received as merchandise to be carried as such for the rate or price established for the carriage of merchandise between the points of shipment and destination, the railroad company's responsibility as a carrier ended when the trunks arrived at Laceyville and were deposited in the baggage room. Thereafter the railroad company held them, not as a common carrier, but as a warehouseman: McCarty v. R. R. Co., 30 Pa. 247; Moyer v. R. R. Co., 31 Pa.Super. 559; Clark v. R. R. Co., 139 Mass. 423 (1 N.E. 128); Roth v. R. R. Co., 34 N.Y. 548; Chicago, Rock Island & P.R. R. Co. v. Fairclough, 52 Ill. 106.

Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.

OPINION

MORRISON, J.

This was an action of trespass brought to recover the value of two large trunks containing sample merchandise, and the court below submitted the case to the jury and there was a verdict in favor of plaintiff of $ 509.12. At the trial the defendant asked for a binding instruction, which request was refused, and after verdict the defendant's counsel moved the court for judgment non obstante veredicto, which was granted, and the plaintiff appealed and in a single assignment of error complains that the court erred in granting such judgment.

The facts developed at the trial, which are undisputed, disclosed that L. E. Hewitt, a traveling salesman employed by the appellants, went to the appellee's passenger station at Tunkhannock some time before six o'clock in the afternoon of September 2, 1902. He had with him two large trunks which he requested to have checked to Laceyville, exhibiting at the same time a mileage book as the transportation he had purchased. The trunks were found to be overweight and an excess baggage rate of thirty cents was demanded from and paid by Hewitt. The appellee's baggage master at Tunkhannock was acquainted with Hewitt and knew that he was a traveling salesman, but did not inquire, nor did Hewitt tell him what the trunks contained, or by whom the same and their contents were owned. It is now conceded that the trunks contained no personal effects or clothing of Hewitt, but consisted wholly of sample shoes designed for the purpose of effecting sales of similar goods; and that both the trunks and their contents were the exclusive property of the appellants.

The trunks were placed aboard a passenger train leaving Tunkhannock near six o'clock the same afternoon and they arrived safely at Laceyville not later than seven o'clock of the same evening. Upon their arrival at the latter place the trunks were removed from the train by the appellee's employees and deposited in the company's baggage room at that place to await Hewitt's convenience in calling or sending for them. Hewitt left Tunkhannock on the train which carried the trunks, but, without previously revealing any intention to do so to anyone representing the appellee, he stopped overnight en route at his home in Meshoppen, an intermediate station, and did not call or send for the trunks until the following morning between nine and ten o'clock. In the meantime, at about three o'clock of the same morning, the appellee's station and baggage room at Laceyville were entirely destroyed by fire, together with their contents, including the trunks. The appellee had men in charge of the station and baggage room at Laceyville both day and night, and the trunks were at all times, following their arrival at that point, and until the time of the fire, ready and accessible for delivery to anyone presenting himself and having a right to receive them. At the trial no attempt was made to allege or prove that the burning of the station and baggage room was in any way due to negligence on the part of the appellee.

At the trial of the case there was a dispute in the evidence as to whether the trunks left Tunkhannock at about three o'clock in the afternoon of September 2, 1902, or at about six o'clock of the same evening. The learned court below, then considering this an important question of fact, instructed the jury to find from the disputed evidence at which of the said times the trunks were shipped from Tunkhannock, and further plainly instructed the jury that if they were transported on the three o'clock train and arrived at Laceyville in due course, the appellee's agent ought to have called for the trunks that evening, and in that case the verdict should be for the defendant; " if however you find that these trunks were not shipped until about six o'clock, we say you should find in favor of the plaintiff, and as to the measure of damages we will instruct you later." In finding for the plaintiff the jury evidently found that the trunks were shipped on the six o'clock train.

The important question in this case is, were the trunks held by the appellee at Laceyville at the time of the fire as a common warehouseman and not as a common carrier?

Inasmuch as it is conceded that the loss to the appellant occurred without negligence on the part of appellee, there could be no recovery, if the appellants should have removed the trunks on the evening of September 2, 1902, or the morning of September 3, 1902, before the fire. It is conceded that the trunks arrived at Laceyville prior to seven o'clock in the evening and the court below, on the motion for judgment non obstante veredicto, reached the conclusion that the appellants did not call for the same within a reasonable time, and, therefore, the appellee had ceased to be liable for the trunks and their contents as a common carrier, and, therefore, the court entered judgment in favor of the defendant. In our opinion the learned court below reached the correct conclusion. It is too plain to require argument that Hewitt shipped the trunks from Tunkhannock to Laceyville intending to have them stored at the latter place until the next morning at about nine o'clock. It is perfectly clear and conceded that when he checked the trunks from Tunkhannock to Laceyville he only intended to go himself to Meshoppen, and therefore we draw the irresistible inference that he intended to have the appellee take care of his trunks as a warehouseman from about seven o'clock in the evening until he should arrive at Laceyville at about nine o'clock the next morning. If he had checked his trunks to Meshoppen and they had been taken care of by him at that point, they would not have been destroyed by fire. So also if he had gone on the same train with the trunks to Laceyville and had removed them on the evening of September 2, which would have been the reasonable thing to have done, they would not have been destroyed by the fire. The appellee was not charged with any negligence. Why then, should it suffer for what was caused by the negligent act of appellant's own agent?

In our opinion the learned court gives sufficient reasons and authorities in the opinion granting judgment...