OPINION
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 17th 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 baggageman that I was going
off on No. 5 the next morning. He is expressman for Mr
McGowan. I delivered the trunk to Will Spicer, the
expressman, about half-past 9 o'clock on the evening of
the 16th 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
overskirt 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; handkerchiefs 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."
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 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 eaves of the depot building, near the baggage-room door.
The baggageman 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 baggageman 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 in behalf of the plaintiff, testified as
follows:
"On
the evening of November 16th, 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 9
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 baggageman. 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
re-direct 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 baggageman is Mr.
Barbour. His assistant is Mr. Hockman. I am night baggageman.
No one called my attention to the trunk the night before when
it was left there."
Re-direct:
"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 and Michigan Southern
Railway Company at Elkhart, and have charge of the
company's business there. Mr. Wilcox was the night
baggageman for the Lake Shore and Michigan Southern Railway
Company at Elkhart, Indiana, on November 16th, 1882. The
baggage-room in which Mr. Wilcox worked was the baggage-room
of the Lake Shore and Michigan Southern Railway Company. He
had authority to receive and check the baggage of passengers.
The Lake Shore and Michigan 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
baggageman 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 so until they are placed in charge of the
baggageman and checked. It occurs frequently that trunks are
left on the platform by parties, but the baggagemen 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...