STROUSS V. WABASH, ST. L. & P. RY. CO.
and others v.
L. & P. Ry. Co.
(Circuit Court, N. D. Ohio, TV. D.
CARRIER OF PASSEXGERS GAGE.
JUllil Term, 1883.)
LIABII,ITY FOR l\IEHCUANDISE CARRIED AS BAG-
1\. carrier of passengers is liahle as a common carrier for the ordinary baggage of passengers upon its trains, Imt it is not Iiahle for loss or injury packages of mercl1'lnd;se, pas;ecl as baggage, unless it£< agent having control of the receipt of the l.111ggage was informed or knew what was contained thp.rein, and no misrepresentation was made by the owner to the a6ent haVing charge of the husiness of chccking the baggage.
!:l.UIE-LIABlLITY FOR EXTRA BAGGAGF.-DELtVETIY.
A railroad company is liable as a common carner to the owners of extra haggage, where it is shown that the bag,gage-master accepted it wit.h the knowledge, ancl with the UnderSI anJing and arrangement [,etween the passenger and himself, as the agent of the company, that extra pay should be made for tIle transportation thereoJ, find if he receive the extla baggage, g'ives his cheeks therefor, upon payment of the extra charge, the company will he liahle aq a common carrier to cleliver the trunks at the place des.gnated liy the checks or contract of carriage. and IS responsihle for any lIljury occurring to the bagg'lge in its transportatiOn, and before its delivery at the place where it was to be delivered.
SAUE - IMPLIED AUTHORITY BAGGAGE. OF BAGGAGE-MASTER ACT OF GOD Loss OF
'Vherc a railroad company place a ba.l"gage-master Ul ItS it holds out to the public tilat he has aUl.hor,ty to make arrangements as \0 what sort of baggage shall he carried by the company, and a contract to carry extm baggag;c npon the payment of an extra charge made by him will be binding on the ompany, and It can only be excused from the safe delivery of such haggage by sll')w.ng that it was lost. by sO.ne act of God, or the pUlJlic enemy, which could not be prevented by the exercise of proper care on iiS part.
SAUE-DUDDEN FLOOD-QUESTION Fon JURY.
A sudden and extraordinary flood iu a river is to be rea-arfll'fl as .he apt of God; and in un action ur tile owner c.f for damage caused thereby, the jury are to determine, flom all the circumstances of the case, whdher, after the baggnge. master of the railroad company received and checked such baggage tbe Hood came so snddenly that, under tbe pircumstances, the injury could not have Itasonal.ly lJCen pr, vented hy tbe company or Its agents by tIlJ use of all possih:e menns; and if they tind that it could have been done with tllC of reasonal,le ancl pro, er and all po,sil,le means that could be exerCIsed and used by ils agl'nts, it wns bound to place stich haggage in a place of safety and prevent damnge 10 the goods, and the owner is entitled to recover.
OF GOODS AFTI'R DEI.IVEHY TO CAnmER.
Afler goods are delivered to a carrier to he transporteJ to a particular place, they 'ire in the custody of th,' carl'll r, and it is the duty of the carrier to preserve them from damage hy renson of a sudllen Hovd, as far as is in his power, and not the duty of the owner the. eof.
The measure of damages in such a case is the loss which thl.. owner of the goods has stlslllinC'd by the breacb of the contra.t. The jury are 10 judge of the value of the goods, and where a part of them have been sold, whatever was realized from such sale is to be d. dueted from the general value thereof, and tbe bala!!!:e would be the measure of damages.
ltlr. Hubbud, for plaintiff'!. for John R. v.17,no.3-H
WELKEU,· J., (charging jury.) The plaintiffs were clothing merchants in the city of Rocheilter, New York, and one of their firmMr. Isaac J. Beir-was in the city of Toledo, on the eleventh day of February, 1881, with three trunks, such as are usually carried by commercial travelers, filled with goods in their line,-with clothing belonging to plaintiffs,-and Beir desired to go as a passenger on the passenger train of the defendant, to start that night at 12 :05, from Toledo to the town of Napoleon, on the railroad of the defendant, and take with him, as baggage, the three trunks. He left the Boody House shortly aftor 10 o'clock in the evening, on the omnibus of the rroledo Transfer Company, with his three trunks, and went to the depotof the defendant, where the trunks were placed by the agent of the Transit Line, on the truck of the defendant, and placed by him in the baggage-room of the defendant at the depot. Shortly afterwards, Beir, having purchased a ticket for Napoleon, went into the baggage-room and asked the baggage-master to check tle three trunks to Napoleon, informing him they weighed some 600 pounds more than was allowed as baggage; whereupon the baggage-master charged him two dollars and forty cents extra for the trunks, which he then paid him, and the baggage-master gave him three checks fot the trunks, in the usual way. Beir then soon after went on to the passenger train of the defendant to await its starting for Napoleon. While Beir was in the baggage-room of defendant the water began to cover the floor of the room, and the baggage-master left the trunks in the room on the trucks, and carried Be:r on his back to a higher point near the ticket-office, where he left him, and did not return for the trunks to put them in the baggage-caz, but, soon after, left the depot in the United States mail wagon on account of the high water. Soon after, the water came in and the trunks, and the depot and the railroad tracks, so that the train did not leave that ni&ht, and Beir was taken from the train in a boat. By morning there was some six feet of water in the depot, wetting the goods in the trunks and doing great damage to tnem. Plaintiffs sue to recover the loss of the goods contained in the trunks, on the ground that the defendant did not delivet the trunks at Napoleon according to its contract as a common carrier, and was also guilty of negligence and carelessness in not placing the trunks in a safe place, and in not taking proper care of them as common carriers, by reason of which the good:; were damaged and injured. This carelessness and negligence are denied, and it is claimed by defendant that the injury was occasioned by a sudden and unexpectecl flood of the river, being the act of God, and which the defendant could not foresee or provide agai1l5t. . The defendant, being a carrier of passengers, is liable as a common carrier for the ordinary baggage of the passengers upon its trains. As carrier of passengers, defendant.was not liable for loss or ininry to packages of merchandise, packed as baggage, unless its agent
STROUSS V. WABASH, ST. L. &- P. BY. CO.
having the cOlltrol of the receipt of the baggage was informed or knew what was contained in the trunks, and no misrepresentation made by the owner to the ag'1nt having charge of the business of checking the baggage on that occasion. The company is liable as a common ca·rrier to the owners of extra baggage where it is shown that the baggage-master accepted it with the knowledge, and with the understanding and arrangement between the passenger and himself, as the agent of the company, that extra payment should be made for the transportation thereof. If he took, under such an ar" rangement as that was, the three trunks, and gave his checks for them, then it made such a contract between the railroad company and the plaintiffs in this suit, for the breach of which an action might lie in favor of the plaintiffs for injuries sustained to the goods. If the baggage-master had knowledge of the character of these trunks, that they contained merchandise, and contained other matters than the personal baggage of the plaintiffs, or this member of the firm of the plaintiffs, then if he charged for the extra baggage and accepted it as' such, it makes the company liable as common carriers to deliver the trunks at the place designated by the checks or contract for carriage between the plaintiffs and the railroad company, and it would be responsible for any injury which would occur to this baggage in its transportation and before its delivery at the place where it was to be delivered. The railroad company, having placed the baggage-master in its baggage-room, holds out to the public that he has authority to make arrangements as to what sort of baggage shall be carried by the railroad company, and having given him the direction and the control and the management of these articles of freight, he, in the eye of the law,-so far as the ontside public is concerned,-"'ould be au-' thorized and have authority to make such contract as is claimed by the plaintiffs in this suit that this baggage-master did make, and to bind the company in that respect. So that, although these trunks were not filled with thp, ordinary baggage of the passenger, if he accepted them as merchandise and took extra pay for them, and gave a check indicating their receipt on behalf of the railroad company, that would be such a contraet as would authorize plaintiffs to bring suit in- case it was broken. ·As soon as the baggage-master in the room accepted the extra pay and gave his checks to Beir, the trunks passed into the possession of the defendant, and at that time the relation of common carrier between the plaintiffs and the defendant railroad company was created,and the responsibilities and rights growing out of that relation, attached thereto. Now, by the implied contract resulting from this relation of common carrier of these goods,-(and it does not matter very much whether they were shipped as mere baggage or afl merchandise, if they were accepted by the baggage agent without any misrepresentation or fraud on behalf of the plaintiffs, or member of their firm; ,it. makes bllt: fe.ry' lIttle difference as to' their '-iialJility'
whether they were to be shipped as merchandise, or as trunks of gage,-the same liability is upon the company, as a common carner of merchandise, as is incumbent upon the company as a common carrier of passengers,)-by the implied contract the defendant undertook to carry this baggage to Napoleon. 'rhe defendant can only be excused from the safe delivery of these trunks by showing that the baggage was lost by the act of God or the public enemy, and which could not e prevented by the e.Jerciso of proper care on its part. A sud4en and extraordinary flood in the river is to be by you as the act of God. The fad of the rumors of flood up the river, and the of a rise of the water, in the Exchange-room and about the city of Toledo for two or three days before, does not have mnch bearing upon this case, because, unW the baggage of the plaintiff went to the depot and the trun!,s welie checked, this railroad company owed them no duty. There was no contract them which required the defendant to know whether there was gomg te be a great flood or a WlaU freshet. That does not enter into the character of this contract; but when these trunks were delivered there, then there was created a relation, and a duty incumbent upon this railroad company to transport these trun ks according to contract. You will take the parties, then, as they were at the time when this con.tract was made, and you will measure the rigMs of the ph·.intiffs and the liabilities of the defendant from that time forward; so that although, as a matter of fact, the rumors were afloat around the city, (and it may be that in class of cases this railroad company and its officers ,,'ere bound to take notlee of an impending flood and take care of prop'"fty intrusted to tlleir care in other relations as well as common carrier; it may be they were required to UBe such means r.s would protect the property before the flood came on, Lut that would only be in cases where it had the property of the party in P'lsession before that time, and while that relation existed between plaintiJi and defendant;) but this relation was created so late in the evening that you must take the parties at that time, and judge of their righta and liabilities in that connect,itm. In the first place, the defendant, at the late period when this conteact was made, could not chunge its depot grounds and propertyconld not make them any more secure against the impendin rr flood. Immediately after the receipt of these goods the was bound, in its relation of common carrier, to exercise certain care and duties connected with these trunks, and that duty consisted in taking care of them, and preventing them from being damaged bJ' flood that had then commenced to come into the depot. You will see, then, from the statements of these general principles, that the important question for you to settle from the evidence is whether, after these trunks were received by the baggage-master and checked, the flood came so sueldenly that, under the circumstances, the injury could not bare reul:iollubly been prtl\ented by the defend-
WABASH, ST. L. & P. ny. co.
ant, or its agents in charge of the trunl\s, by the use of aU possible means. If it could have been done with the exercise of reasonable and proper and all possible means that could be exercised and used by these officers, then the defendant was bound to place the trunks in a place of safety and prevent damage to the goods in the trunks. If, under the circumstm.1ces, it could not have been so reasonably and possibly done,-with the surroundings of the parties at that time, from the impending fIood,-the sudden character of the fIood,-if they could not take care of the goods these circumstances, then you will be justifiable in saying that they were injured by the act of God; but the theory of that is that the company must use every possible means to prevent the fIood from damaging the goods. The general rule is that if goods in the hands of a common carrier are aamaged by the public enemy,-as in case of the army destroying goods at a depot in the late war,-then the law says the common carrier is not to be held responsible for the loss of the goods, And so 0: sudden floods and cyclones, that render it beyond the power of the company to take care of the goods and protect them. And this question narrows itself dnwn to the fact as to what care this defondant gave, under the circnmstances, to these goods that night, in order to save them from injury, and what it did do. If, uy the exercise of the means within its control, with all the surroundings as the depot was fixed, (the phintir.'s put their trunks there in the depot as it was constructed,) and you could not expect the railroad COffipanj' to make any extraordinary provisions slwh as were only required on extraordinary occasions, but it would be required to use all the machinery it had around it to make this baggnge secure, -its officers did all that was pos3ible to be done under the circumstances, then it is not liable; if they did not do that, then it is liable to this plaintiff for the damages resulting from its failure to carry these goods safely to Napoleon, and is only to be excnsed from the performance of this contract by the happening of an act of Provto that point idence that they could not avoid. Apply the and that will settle the liability of t1lis railroad company. Do not bother yonrselves very mnch about these general rumors, because, at the time these rumors were on the street, this contract did not exist between these parties; no relation exi:>ted between them. Something has been said in regard to the duty of the plaintiffs after the flood wal!l O\'er. It is claimell by the defendant that Col. Andrews, the general agellt, said to the plaintiff, "Go and get Jour trunks down at the depot and take care of them yourself." And it is said by the plaintiffs that they offered to give Col. Andrews the keys, so that he might have the trunks opened and save what he couid. It seems that the goods where left in there longer than they ought to have been on account of the misundersta.nding between the parties. I direct you that this common carrier was to take the goods and carry them to NapOleon, and notwith::;tanding Col. Andrc\\l:l B!ud the plain-
tiffs must go and take care of the goods, their failure to do so does not· relieve the railroad company for the injury sustained by the delay. 'rhe railroad company could have opened out these goods and taken care of them, for the reason that it was the custodian of them; they were in its possession for transportation and delivery at Napoleon, and it could not compel the plaintiffs to take the goods until they were delivered at Napoleon, and if it let them get damaged by remaining longer in the water, it did it at the risk of having to pay more damages than if it had taken them out earlier after the flood. It was the duty of the railroad company, if it wanted to relieve from liability, to have taken these goods out as early as possIble, and to save as many as it could. It was not the duty of the plaintiffs to take charge of them. They were locked up in the baggageroom, and plaintiffs had no business to take· possession of them, and, could not. The burden is upon the railroad company to show that it could not, under the circumstances, comply with the contract by reason of the great flood. If it has succeeded in satisfyng you that it .could not perform this contract, that will relieve it from liability for injuries to these goods; if it has not done so, then plaintiffs are entitled to the damages sustained to the goods. If you find t,hat the defendant did discharge its duty, your verdict will be for the defendant. If you find otherwise,. :you will proceed to determine the amount of the injury which the plaintiffs have sustained by reason of the failure to perform this contract on behalf of the railroad company. The measure of recovery is the loss which the parties sustained by the breach of the contract. The rule is to restore to them whatever damages they have sustained. You are to judge of the value of the goods. A part of the goods were sold; whatever was. realized from tho salo of the goods is to be deducted from the general value thereof, and the measure of. damages would be the balance after deducting the amocut realized from the total damages 6ul:ltal11od by reason of the goods having been wet. Verdict for the plaintiffs, and motion for new trial overruled.
GRAND LODGE, OHIO DIVISION, INDE'PE:\!DENT FORESTERS.
(CITcuit CouTt,N. D. Ohio, E. D.
April Term, 1883.)
BEXEFICBL SoCIETY-SUIT TO RECOVER llEXEFIT-SUSPENDING URE TO PAY DUES.
S. was a member or' B Bubora!natc lodlTc of defendant, and thereby, by the. constitution and by-laws, became a memetier of the grand lodge. The death assessmcnts werc required to be collected by the subordinate lodge and for-wanled to the grand lodge, the s\l.bordinfltc lodge.bein,gcompelled to alcount, for these assc5smentsand pay them to. t4e grand lodge, the member had.
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