Illinois Central Railroad v. Handy

Cooper, C. J., delivered the opinion of the court. The appellee, a resident of Canton, Miss., on the — day of - A. D. 188 , desiring to pay certain debts which he owed in the city of New Orleans, took passage on the appellant’s train on the evening of that day. He had, as he testifies, about three hundred and seventy dollars in currency and some checks, all contained in a large leather pocket-book which he carried in the hip-pocket of his trousers. At Jackson he entered a chair car of the defendant, paying one dollar for the privilege of riding therein. He took off his coat and vest and went to sleep. The train arrived at New Orleans early in the following morning and appellee put on his coat and went to a hotel, and soon afterward discovered that his book, with its contents, was missing from his pocket. He immediately returned to the office of the company and was there handed his pocket-book by one of its officers to whom it had been delivered by the porter of the chair car, who testified as a witness in this case and said that he found it a seat or two from that which had been occupied by Mr. Handy, and that he delivered it without opening it to the agent by whom it was given to him. On opening the book it was found that there was in it only fifty-seven dollars in money ; the appellee stated to the agent that it “ was all right,” took the book and its contents, but in an hour or less went to the principal office of the defendant and claimed that three hundred and eight dollars in money had been abstracted from it. The company refused to recognize its liability for the loss, and this suit is brought to recover therefor. On the trial it was shown that chair cars are in charge of the porter, there being no conductor required for them specially, and that the porter of this car was at his post of duty during the night. No particular act of negligence while the car was en route is charged, but it is shown that after the passengers had left the car and before the porter had cleaned it out a person who was not employed by the company, but whom the porter occasionally hired to aid him in cleaning up the car, was permitted to enter it, and it is suggested that perhaps the theft was committed by him. On the trial the court instructed the jury that the company was [614] responsible for the loss if it resulted from, the negligence of its servants to so keep watch over the passengers as to prevent theft; that it was liable if the theft was committed by its own servants or by the person in New Orleans who was permitted to enter the car after the passengers had left it, and that this liability extended to such sum of money as the jury might think it “ was reasonably prudent for Handy to have with him on the journey he was on.” Because of the invitation extended to travelers by sleeping-car companies to sleep upon their cars, it has been held that they owe and assume to their patrons the duty of exercising such reasonable guard over them, to prevent theft of their personal effects, as the circumstances admit and the passenger has a right to expect. This obligation is not such as pertains to common carriers or innkeepers, and such companies do not occupy the relation of insurers against all loss under all circumstances. The accommodation offered implies a certain degree of privacy for the passenger upon his retirement to rest, an intrusion on which by the servants of the company w'ould be rightly resented by him. If the company should be held liable to one passenger for a theft committed by another, it must be either upon the ground that it is, under the common-law liability of an innkeeper, a view not sanctioned by any court, so far as we are informed, or because by its contract it may be fairly said to bind itself to keep watch upon each traveler on its car, which would result in the establishment of a system of intolerable espionage. One who avails himself of the comfort afforded on such cars does so with full knowledge of the fact that others, whose character the company cannot possibly know, may become fellow-travelers with himself, and that the arrangement of the car into berths or sleeping-chairs is such that he will necessarily, while asleep, be subjected to easy approach by any dishonest traveler in the same car. The risk of loss from such persons he assumes as an incident of his circumstances, and the company can only be made responsible by evidence of its neglect to keep that reasonable guard which its contract implies that it will. Where the doors of the car are left open and unguarded so that unauthorized persons may have access to it, or the officers [615] charged with its superintendence leave it without that supervision by them which the passengers had a right to rely on, as in the cases of Blum v. R. R. Co., 1 Flip. C. Ct. 500, and Woodruff v. Deihl, 84 Ind. 474, it would seem that such negligence is shown as would render the company liable for a loss. But there is no evidence in this case that the car was at any time unguarded, and under such circumstances there is, in our opinion, no liability for a theft committed by a fellow-passenger. We speak, of course, of a theft the circumstances of which are unknown to the employees, and not of such as might be committed by one in the presence of the servants, or under such circumstances as would reasonably suggest to such servants that a theft was being or about to be committed. If the appellee carelessly and negligently left his pocket-book on the car when he reached his destination, and its contents were abstracted by persons other than the servants of the company, there would be no liability on the part of the company, for it is only by reason of the fact that the company owes some duty to the passenger as such that there is any sort of responsibility resting on it in relation to his property, which, for the time, is considered as a part of the person. But when a passenger leaves the train at his destination the company may reasonably think that he has taken with him all those things which one is accustomed to carry about his person, and until it is shown that the property is discovered by its agents to have been left behind, we know of no principle of law by which it can be charged with any duty concerning it. The plaintiff contends that the jury was authorized by the evidence to find that the pocket-book was found or stolen by the porter who had charge of the car and was rifled by him, and that if such be the case the company is responsible for the loss, because it vouches for the honesty of its employees. This, we think, is correct within certain limits, viz.: that the company is responsible to its patrons for the conduct of its employees as to any property as to which it is brought into contract relations with its owner. But as to any other property, whether owned by a passenger or a stranger, it has no sort of connection, and as to such it lies under no greater obligation than it owes to property of all other persons, [616] the measure of which is fixed by the maxim sic utere tuo ut non alienum loedas. The extent to which liability has been fixed in cases of this sort has not been held to include anything except the clothing, ornaments, and such articles as are usually carried by travelers in their hands, together with a sum of money reasonably sufficient for the expenses of the journey in which one is engaged. It appears from the testimony of Mr. Handy that the money lost was being carried by him to New Orleans, to be used in the payment of a debt due to persons there. It.was a much greater sum than was necessary for the payment of any expenses incident to the journey he was upon, and as to all in excess of such sum there was no liability of the company, even though it was stolen by its servants, for the reason that as to such excess it stood in no contract relation with him, owed and undertook no duty, nor authorized its servants to do anything in reference to it. The case of the First National Bank v. R. R. Co., 20 Ohio St. 259, is strictly analogous on this branch' of the case, and in the conclusion there reached we fully concur. The judgment is reversed and cause remanded.