Millard v. Missouri, Kansas & Texas Railroad

Barnard, P. J. : There is but a single question presented by this appeal. The facts are undisputed. The plaintilf and one Brady were passengers upon the defendant’s road, having purchased tickets at St. Louis, Mo., for Dennison, in the State of Texas. Each had what is technically known as baggage, and each beside had articles and merchandise, not baggage, in separate trunks and boxes. The agent of the defendants refused to check the baggage and merchandise without extra charge. He was informed that the trunks contained articles other than baggage. The trunks were weighed, and a special rate of freight charged for and paid by plaintiff and Brady. The defendants failed to carry the same safely, and it was entirely lost before reaching Dennison. The plaintiff brought his action in the Supreme Court of New York, claiming to recover the entire damage under the name of the descriptive [194] word, as stated, of baggage. Upon the trial the defendant objected that the articles now sued for did not come within the description of baggage, and the judge who tried the case so decided, and, as to the articles now in question, dismissed the complaint. The plaintiff, who is also the assignee of Brady, now seeks to recover for the articles which were not comprised within the term baggage, and the defendant claims that the former action is a bar to his recovery. A former action is a bar to a subsequent one only as to those claims which were in fact litigated or might have been litigated under the issues as made. There was no issue made except as to the baggage. All other proof was excluded by defendant, thus confining the former action to tha,t alone. Some cases even hold that when a clainq is within the issues, if it was not in fact litigated, the former action is no bar to a subsequent action for the claim not litigated. In this case the articles now sued for were formally withdrawn by the plaintiff, after the judge decided that nothing but baggage could be recovered for under the pleadings in the former action. The ruling seems to be sustained by authority that the present articles could not be included as baggage. (Dexter v. Syracuse R. R. Co., 42 N. Y., 326.) The objection being made by defendant that they were not so included, and the claim, in consequence of such objection having been withdrawn, it should, as between the parties, be held conclusive in this case. It was not an entire contract which could not be severed, as to baggage and. things not so classed. The defendant having been informed that the trunks and boxes contained other articles, and a special rate having been charged therefor, there were two- agreements: one to carry the passengers and their baggage, and the other to carry their merchandise with the baggage. (Sloman v. The Great Western Railway Co., 67 N. Y., 208 ; Stoneman v. Erie Railway Co., 52 id., 429.) The judgment should therefore be affirmed, with costs. Gilbert, J.: I think that the judgment in the former suit is not a bar : (1.) That was a suit to recovér for the loss of personal baggage, whereas this is one to recover for the loss of merchandise. (2.) [195] Separate contracts were made for the transportation of each description of property. (3.) If either of these facts were susceptible of doubt that is obviated by the defendant’s conduct upon the former trial. The defendant then objected to the admission of evidence of the loss of the items embraced in the present action, upon the ground that they did not come within the description of personal baggage, and, therefore, such evidence was excluded, and all claim for such loss 'was voluntarily withdrawn from the consideration of the jury by the plaintiff. The rule that an entire claim cannot be divided and so made the subject of several actions, and that a judgment for a part is a bar to another suit for the remainder, is one for the protection of the debtor and may be waived by him. Such a rule cannot be perverted into an instrument of fraud or injustice. (Mills v. Garrison, 3 Keyes, 40.) Moreover, it is plain that tlie articles included in this action were not personal baggage. (Dexter v. Syracuse R. R., 42 N. Y., 326.) Hence the defendant might properly exact compensation for the transportation of them as merchandise. Its agent did so, and the extra compensation was paid. The law implies from such a transaction a contract distinct from that which springs from the purchase of tickets. The latter imposed only the obligation of carrying the passenger and his baggage, while the former was made at a subsequent time and imposed a different obligation. (Stoneman v. Erie R. Co., 52 N. Y., 429; Sloman v. Great Western R. Co., 67 id., 208.) Nor can a railroad company be heard to claim that merchandise, for the transportation of which extra compensation had been exacted by them and paid, is baggage, because its weight, together with that of the other articles received for transportation, did not exceed the weight which the passenger was entitled to have carried as baggage. The judgment must be affirmed, with costs. Present — BarNard, P. J., and Gilbert, J.; Pratt, J., not sitting. Judgment affirmed, with costs.