Miss. Central Railroad v. Kennedy

Peyton, J., delivered the opinion of the court. The defendant in error institirtes his action of assumpsit in the Circuit Court of Carroll county, to recover of the plaintiffs in error, as common carriers, the value of a trunk and its contents, delivered to the plaintiffs in error, to be transported by them on their railroad from Grand Junction in Tennessee to Winona in Mississippi, which, it is alleged, were wholly lost to the defendant in error, through the carelessness, negligence and default of the plaintiffs' in error. To the declaration, the plaintiffs in error filed-the.pleas of not guilty and non assumpsit, and four special pleas, to which demurrers were sustained, and leave given to plead over, which they declined to do. On the issues presented by the two first pleas, the cause went to trial, which resulted in a verdict and judgment in favor of the defendant in error for the sum of $488.57. To reverse which judgment, the plaintiffs in error now prosecute their writ of error here. The first error assigned is, that the court ■ erred in allowing any proof to be made as to watches, ladies’ dresses, and other [678] articles in the trunk of the defendant in error, not part of his ordinary baggage. The defendant in error offered to prove, as appeal’s by the bill of exceptions, that the trunk contained, among other things, two silver watches and two gold watches. To the introduction of this testimony, the plaintiffs in error objected, the objection was overruled by the court, and the testimony admitted. The watches in the trunk, the defendant wearing one upon his person, were clearly no part of the baggage; the court therefore erred in admitting the testimony. The implied undertaking of the proprietors of stage-coaches, railroads and steamboats, to carry in safety the baggage of passengers, is not unlimited, and cannot be extended beyond ordinary baggage, which consists of such articles of necessity or convenience as are usually carried by passengers for their personal use, comfort and convenience; and not merchandise or other valuables, although carried in the trunks of passengers, which are not designed for any such purposes. Angelí on the Law of Carriers, 115 ; Story on Bailments, § 449 ; 6 Humphrey, 624 ; Bomar v. Maxwell; 9 Humphrey, 620 ; Jordan v. Fall River Railroad, 5 Cushing, 69; Collins v. Boston & Maine Railroad, 10 Cushing, 506; Johnson v. Stone, 11 Humphrey, 419. In the case of Bomar v. Maxwell, the court say: It is obviously impracticable to prescribe any uniform or definite rule in respect to what shall be deemed baggage. This must be left to the jury to determine in each particular case, from the habits, rank, and condition of the passenger, with all the circumstances relevant to the inquiry. And in the case of McGill v. Rowland, 3 Barr, 451, the court say: That if there be any attempt at imposition by the passenger upon the carrier, the court must to some extent rely upon the intelligence and integrity of the jury to apply the proper corrective. Common carriers are not liable for articles not transported to supply any wants of the traveller, as such, on his journey, and not made known to the carriers or their agents, nor paid for as freight, but put aboard the conveyance by the passenger, simply ■ as baggage, and so treated by himself on his journey. A reason [679] able amount of baggage, by common usage, is deemed to be included in the fare of the passenger; but the courts should not allow this custom to be abused, and, under pretence of baggage, include articles not within the scope of the term or intent of the parties, and thereby defrauding the carrier of his just compensation, besides subjecting him to unknown hazards. Doyle v. Kiser, 6 Indiana, 242; Pardee v. Drew, 25 Wendell, 459 ; Pettigrew v. Barnum, 11 Maryland, 449 Articles treated as baggage may consist of clothing, money for defraying travelling expenses, a few books for the amusement of reading, a lady’s jewellery for dressing, a watch, fishing tackle, a gun and a pair of pistols. The second error assigned is, that the court erred in admitting proof of the money spent by the defendant in error in search of his trunk. The defendant in error offered to prove, as appears by the bill of exceptions, the expense incurred by him in searching for his trunk. To the introduction of this testimony the plaintiffs in error objected; the objection was overruled by the court, and the testimony admitted. In admitting this testimony the court erred. The usual contract of a carrier of passengers includes an undertaking to receive and transport their baggage, though nothing be said about it, and if it be lost, even without the fault of the carrier, he is responsible. But this implied undertaking has never been extended beyond ordinaiy baggage, the value of which when lost is all that can be recovered, the action not being in tort, but for a breach of contract. The aetrnal damage arising from the breach is the measure of recovery in this form of action. New Orleans, Jackson and Great Northern Road, v. Moore, 40 Miss. 39. The plaintiffs in error asked the court to instruct the jury that the plaintiff, in the action which he has instituted, is not entitled to recover for anything except that which properly falls within the term baggage. We believe this instruction states the law correctly and should have been given. The court therefore erred in refusing to give it. [680] For these errors the judgment will be reversed, the cause remanded, and a venire de novo awarded.