Payne v. Boswell

WILLSON, C. J. (after stating the facts as above). [1] Appellant requested the trial court to instruct the jury to return a verdict in his favor, and in his first assignment complains of the refusal of the court to do so. The request was predicated on rule I, section A, o,f Baggage Tariff 25-2, set out in the statement above, on the fact that the ticket, by virtue of which the trunk was cheeked, was never used for any other purpose, and on the fact that neither of the ap-pellees traveled on the train which carried the trunk. Appellant argues that the carrier therefore was a gratuitous bailee of the trunk and was liable only for gross negligence in handling it. The testimony did not authorize a finding, he insists, that the carrier was guilty of such negligence, and hence it was error, he asserts, to refuse to give the requested instruction. The assignment is overruled. By force of the statute of this state (article 6618, Vernon’s Statutes), had either of the appel-lees traveled to Childress on the train that carried the trunk to that place he or she would have been entitled, had the trunk not weighed over 100 pounds, to have it carried for the consideration paid by Boswell when he purchased the ticket; and, in the event stated, if the trunk had not weighed more than 150 pounds and exceeded $100 in value, the carrier would have been bound by rule 10, section A, set out in said statement, to have carried it for that consideration. As we understand appellant, he does not contend that the carrier would have been a gratuitous bailee under the circumstances stated. His contention seems to be that the carrier was such a bailee, not because nothing was paid for the carriage of the- trunk, but because neither of appellees accompanied it on train. The contention is supported by authorities appellant cites, but there are authorities to the contrary which we think state the better rule, when the changed conditions under which people now travel on railroads are kept in mind. Sup. 1, R. C. L. 1334, and cases there cited; Ry. Co. v. Knox, 184 Ala. 485, 63 South. 538; Larned v. Ry. Co., 81 N. J. Law, 571, 79 Atl. 289; Ry. Co. v. De Witt, 115 Ark. 578, 171 S. W. 906; Ry. Co. v. Dinkins, 139 Ga. 332, 77 S. E. 147, 43 L. R. A. (N. S.) 806; McKibbin v. Ry. Co., 100 Minn. 270, 110 N. W. 964, 8 L. R. A. (N. S.) 489, 117 Am. St. Rep. 689. The’view now generally taken of the question by the courts is stated as follows, in the volume of Ruling Case Law cited: “The view that the carrier is only liable as a gratuitous bailee where the passenger does not accompany his baggage has been the subject of severe criticism, as not fitted to modern *764 conditions. Thus it has been said: ‘There seems to be nothing whatever in the modern practice i of railroad transportation, with the system of checking baggage, to make it an implied part of the contract that the passenger shall go upon the same train, or, indeed, avail himself of his right to be carried at all, unless he chooses to do so.’ Having paid for two privileges, there is no reason why he should be compelled to avail himself of both or neither, unless the carrier’s burden in respect to one of them is increased by his failure to exercise the other. It is not possible to see how this is the case. The carrier’s duty with respect to the baggage is in no sense more onerous by reason of the owner’s absence from the train. The carrier is, indeed, entitled to have its liability as such terminate within a reasonable time after the journey ends, but this is the same whether the owner has come on the train with it or not.” It appeared, without dispute in the testimony, that Boswell purchased the ticket by virtue of which the trunk was checked for use by his wife in going to Childress on the train which carried the trunk, and did not know, until after the trunk was cheeked, that she would not go that way. And it did not appear that the ticket was sold to him under a special contract or for a less sum than the regular price charged by the carrier for transporting persons from Memphis to Childress. [2] The contention that the judgment was unauthorized, so far as it was for a sum in excess of $100, is based on rule 10, section A, rule 10, section D, and rule 13, set out in said statement, and on testimony showing, as appellant construes it, that Boswell did not, at the time he checked the trunk, declare it had a greater value than $100, and testimony showing that appellees did not pay the carrier for the excess value of the trunk and its contents above $100, and that the trunk was not carried on a C. O. D. check. Payne v. McConnell, 234, S. W. 942, decided by this court, and Hines v. Burnett, 107 S. E. 657, decided by the Supreme Court of Appeals of Virginia, are cited as cases supporting the contention. But those cases are plainly distinguishable from this one in their facts. In neither of them did it appear, as it does in this one, that the plaintiff offered to declare the excess value and pay the excess charges at the time the oaggage was checked. It will be noted that the rule invoked (rule 10, section D) contained a qualifying clause,' to wit, that ‘‘charges for excess value should be prepaid whenever possible,” indicating that, under exceptional circumstances, the excess value charges need not be paid at the time the baggage was checked. Such circumstances existed in this case in the facts shown in the testimony of Boswell, set out in said statement, that the agent of the carrier, who checked the trunk, declined Boswell’s offer to declare the excess value because the agent of the carrier who looked after that detail of its business was “up town.” The absence of that man’ doubtless also accounted for the fact that a C. O. D. check was not given Boswell when the carrier declined Boswell’s offer to * declare the excess value. Boswell would have paid the charges for such value at the time he checked the trunk had he been given an opportunity to do so, he testified, would have paid same at any time thereafter had the carrier demanded it, and; in his pleadings at the trial tendered payment thereof. Under such circumstances, we do not see how it can be contended with reason that to sustain the recovery had by appellees would be a discrimination in their favor against others for whom the carrier transported baggage. Therefore the contentions presented by the third, fourth, fifth, sixth, and seventh propositions in appellant’s brief are overruled, as are also the ninth and tenth, which present other contentions we regard as without merit. [3] The contention remaining undisposed of is that the trial court erred when he overruled appellant’s exception to the part of appellees’ supplemental petition charging the carrier with a conversion of the trunk and its contents, set out in said statement. The ground of the exception was that the charge constituted a new cause of action which should have been set up by an amended petition and could not be set up by a supplemental petition. What has been said in disposing of the other contentions made by appellant was with reference to the case made by the amended petition. If the conclusions reached are correct, the error of the trial court in overruling the exception, if it was error, would not be a reason why the judgment should be reversed. On the other hand, if it was not error to overrule the exception, the judgment should be affirmed, even if those conclusions are incorrect; for the testimony was amply sufficient to support a finding that the carrier was guilty of a conversion of the trunk and its contents as charged, in that it appeared without dispute that the trunk was delivered to it at Memphis, that it carried same to Childress, that appellees there repeatedly demanded same of it, and that, without offering any excuse whatever for so doing, it failed and refused to deliver same to them. For anything appearing to the contrary in the record, the carrier had the trunk and its contents in its possession at the time the demands were made and at all times thereafter to and including the time of the trial. 38 Cyc. 2031; 26 R. C. L. 1117. On the theory that the cause of action declared on in the original petition was for breach of a contract, and that set up in the supplemental petition was for a tort, we are inclined to think the exception should have been sus *765 tained, but, for the reason stated, we do not think the error, if it was one, requires a reversal of the judgment. The judgment is affirmed. Footnotes [1] <§rs>For other cases see same tosic and KEY-NUMBER in all Key-Numbered Digests and Indexes