Union Pacific Railroad Company v. Grace

• Decision Date: 10 October 1914
• Docket Number: 767
• Citation: 22 Wyo. 452,143 P. 353
• Parties: UNION PACIFIC RAILROAD COMPANY v. GRACE
• Court: Wyoming Supreme Court

143 P. 353

22 Wyo. 452

UNION PACIFIC RAILROAD COMPANY v. GRACE

No. 767

Supreme Court of Wyoming

October 10, 1914

ERROR to the District Court, Laramie County; HON. WILLIAM C MENTZER, Judge.

The action was brought by Robert N. Grace against the Union Pacific Railroad Company. Upon a trial to the court, without a jury, judgment was rendered in favor of the plaintiff, and the defendant brought error.

The material facts are stated in the opinion.

Reversed.

Herbert V. Lacey and John W. Lacey, for plaintiff in error.

The statements by the parlor car cook, after plaintiff had alighted from the train, to the effect that he had seen someone, who might have taken the baggage, and would run and see if he could see him, and, after his return, that he was not able to find the man he referred to, were incompetent and immaterial as evidence and should have been excluded. The person making such statements was not shown to have had any authority or duty to receive the hand baggage of the plaintiff or other passengers or care for the same on behalf of the company. It cannot be claimed that he was a general agent; he had no such general powers or duties as a conductor, but his duties were only those of a cook; and he could not bind the company by anything done by him outside of the capacity of his employment, much less could he bind the company by anything he might say. (Vicksburg & M. M. R Co. v. O'Brien, 119 U.S. 99; Kyner v. Min Co., 184 F. 43; Williamson v. R. R. Co., 144 Mass. 148; Ry. Co. v. Fray, 35 Kan. 700; Silveira v. Iverson, 128 Cal. 187; Rice v. St. Louis, 165 Mo. 636, 65 S.W. 1002).

The plaintiff and his wife were traveling together, and the highest value of the hand baggage and contents, as shown by the evidence, was $ 54.25. The suit case, valued at $ 20, was the wife's property before her marriage. Several articles in the suit case belonged to the wife, and, according to the evidence, the value of her property, including the suit case, was $ 39.75. She had absolute title to such property and the right to maintain any necessary action in her own right respecting it. (Comp. Stat. 1910, Secs. 3908, 3910, 4311). No judgment in this case can bind the wife, but she can maintain an action for the loss of her part of the baggage, if it was lost under circumstances rendering the company liable. Yet the value of her property was included in the judgment in this case.

The company was not liable under the evidence. It was not shown that the parlor car was owned or operated by the railroad company, and there was no presumption that the company operated or owned the car. Since many railroad companies do not own or operate parlor or sleeping cars, any judicial notice that might be taken, would be of that fact, which would result in a finding against the plaintiff below. By the overwhelming weight of authority it is held that a railroad company is not liable for the acts or actions of any other company or its servants operating sleeping cars or parlor cars over its line. But had the car been operated and owned by the company, there would still be no ground for recovery. The allegation in the petition that the plaintiff and his wife were entitled by the purchase of their tickets "with their baggage" to be conveyed from Denver to Cheyenne does not authorize any recovery for loss of hand baggage en route. It is evident that the company cannot be held liable on the theory of a breach of its contract, or the omission to perform something required by the contract, for it appears from the petition that the contract was fully performed by the company. The attempt seems to be to show a new and distinct agreement by the averment that upon the arrival of the train in Cheyenne, the defendant by its agent and employe took plaintiff's said baggage from him and carried it out of the car. This is insufficient to show a contract or agreement by the company, without more particularly designating the agent or the character of his employment or duties. The principle is established that in the case of a bailment for the sole benefit of the bailor, otherwise known as a gratuitous bailment, the bailee is liable for the loss or destruction of the article bailed only in cases where the loss or destruction has been caused by the gross negligence or bad faith of the bailee. (Hibernia Bldg. Ass'n. v. McGrath, 154 Pa. St. 296, 26 A. 377; Minor v. Ry. Co., 19 Wis. 40; R. R. Co. v. Flanary, (Tex.) 50 S.W. 726; Whitney v. Lee, 8 Metc. (49 Mass.) 91). And upon the evidence as well as by the petition the bailment is shown to have been gratuitous, and hence there could be no liability unless the loss was caused by fraud or gross negligence of the bailee.

It is plain from the evidence that the new contract was made by the cook on his own responsibility and not as representing the company. He had no authority to make any contract binding upon the company. (Whicher v. R. R. Co., 176 Mass. 275, 57 N.E. 601; Springer v. Pullman Co., (Pa.) 83 A. 98; Sperry v. Ry. Co., (Conn.) 65 A. 962; Whitney v. Pullman Co., 143 Mass. 243, 9 N.E. 619; Barrott v. Pullman Co., 51 F. 798).

William B. Ross, for defendant in error.

The testimony of the plaintiff as to what was done by the person in charge of the parlor car was uncontradicted. There must have been someone connected with the railroad company besides the porter himself who knew the terms of his contract and the limitation of his authority, but no such witness was produced. If he did not have the authority of a regular porter it might have been shown by the company. But it made no difference whether he had authority to take out the suit case or not, the railroad company is responsible for what he did so long as he was allowed to act as a general porter. It has no right to allow a man placed apparently in charge of the car to receive and take charge of the baggage of passengers unless it expects to be responsible for his acts. (Fisher v. Geddes, 15 La. Ann. 14; Abbott's Proof of Facts, 175, 179; Fowles v. Evans, 52 Minn. 551; Titus v. Ins. Co., 81 N.Y. 410; 8 Abbott N. C. 315; Barnett v. Gluting, 3 Ind.App. 420; Wood v. R. R. Co., 8 N.Y. 167; Gallinger v. L. S. Traffic Co., 67 Wis. 534; Curtis v. Murphy, 63 Wis. 4; Green v. R. R. Co., 128 Mass. 221; Beattie v. R. R. Co., 90 N.Y. 643; Reynolds v. Collins, 78 Ala. 94; Leslie v. Knickerbocker, &c. Co., 63 N.Y. 35; Dunbar v. McGill, 69 Mich. 297; Stitt v. Wilson, Wright 505; Koch v. Howell, 6 Watts & S. 350; Mitchum v. State, 11 Ga. 615; Rutland v. Hathorn, 36 Ga. 380; Handy v. Johnson, 5 Md. 450; Perkins v. Wright, 37 Ind. 207). The conversation between the porter and the plaintiff was admissible as part of the res gestae. (Lund v. Inhabitants &c., 63 Mass. 36; Hooper v. Edwards, 20 Ala. 528; Wharton's Cr. Ev. par. 262; McLeod v. Ginther's Adm'x., 4 Ky. L. Rep. 276).

The plaintiff was entitled to recover the entire value of the suit case and contents, notwithstanding that part of the property belonged to his wife, under Section 4313, Comp. Stat. 1910, providing that a person with whom or in whose name a contract is made for the benefit of another may bring an action without joining the person for whose benefit it is prosecuted. (Dexter v. R. R. Co., 42 N.Y. 326; Baltimore S. P. Co. v. Smith, 23 Md. 407; Malone v. R. R. Co., 12 Gray, 388; Rogers v. R. R. Co., 1 N. Y. Supr. Ct. 396; Curtis v. R. R. Co., 74 N.Y. 116; Pullman Co. v. Gavin, 93 Tenn. 53). The fact that the baggage was not checked but under the control of the passenger did not release the company from liability. (Bonner v. DeMendoza, 16 S.W. 976; Ouimit v. Henshaw, 35 Vt. 605; Morris v. R. R. Co., 1 Daly, 202; Walsh v. The H. M. Wright, Fed. Cas. No. 17,115; Gamble v. R. R. Co., 24 U. C. Q. B. 407). Nor is it a good defense that the company did not own or was not operating the car. (Spaids v. Steamship Co., 3 Daly, 139; Kinsley v. R. R. Co., 125 Mass. 54; R. R. Co. v. Martin, 11 Ill. 219). There were not two contracts--one to convey the baggage and the other to take it from the car. (Cary v. R. R. Co., 29 Barb. 45). The carrier must deliver the property carried in order to terminate its liability. Under the circumstances the company was liable for the loss of the baggage, for it appears that it was lost through the carelessness and negligence of the company's servant. (Roth v. R. R. Co., 34 N.Y. 551; Richards v. Ry. Co., 62 Eng. Com. Law (7 Manning), 837; Green v. R. R. Co., 41 Ia. 414; Ditman &c. Co. v. R. R. Co., 91 Ia. 416; Ry. Co., v. Swift, 79 U.S. (12 Wall.) 262; Hawkins v. Hoffman, 6 Hill, 586; Merrill v. Grinnell, 30 N.Y. 594; Flaherty v. Greenman, 7 Daly, 481; Dill v. R. R. Co., 7 Rich. Law, 158, 62 Am. Dec. 407; R. R. Co. v. Katzenberger, 84 Tenn. 380).

BEARD, JUSTICE. SCOTT, C. J., and POTTER, J., concur.

OPINION

BEARD, JUSTICE.

Action by defendant in error against plaintiff in error to recover the value of a suit case alleged to have been lost through the carelessness of defendant. Judgment for plaintiff, and defendant brings error.

Plaintiff below alleged in his petition (so far as necessary to here state) "That on or about the 12th day of January, 1910 plaintiff purchased for himself and for his wife first-class passenger tickets from the Union Pacific Railroad Company, a common carrier, which tickets entitled plaintiff and his wife, with their baggage, to be conveyed from Denver, Colorado, to Cheyenne, Wyoming, over the railroad of the defendant. That on said date, in consideration of the sum then paid to it by plaintiff, the plaintiff and his wife were received by the defendant as passengers for the purpose of being carried, with their baggage, on the railroad in a certain train from Denver to Cheyenne. That plaintiff and his wife boarded said train at Denver, at said time, with his baggage...