35 Kan. 740 | Kan. | 1886
The opinion of the court was delivered by
“The ticket and check given by the Chicago & Milwaukee Railway Company implied a special undertaking by that company to safely transport and carry, or cause to be safely trans-. ported and carried, the plaintiff and her baggage over the roads mentioned in the complaint, from Milwaukee to the city of New York. This we think must in legal contemplation be the nature and extent of the contract entered into and assumed by that company when it sold the plaintiff the through ticket and gave a through check for the trunk, and received the fare for the entire route.” (Candee v. Pennsylvania Rld. Co., 21 Wis. 582; Ill. Cent. Rld. Co. v. Copeland, 24 Ill. 332; Carter v. Peck, 4 Sneed [Tenn.], 203; Railroad v. Weaver, 9 Lea, 38; B. & O. Rld. Co. v. Campbell, 36 Ohio St. 647; same case, 3 Am. & Eng. Rld. Cases, 246; 2 Rorer on Railroads, p. 1001.)
The defendant company cannot, however, be held liable upon that ground, because there is no evidence that the baggage was injured or lost while in the custody of that company, nor Was it in fact shown upon what part of the route the injury or loss occurred.
Among the cases relied on by the defendant in error is Hart v. Rld. Co., 4 Selden, 37. In that case the defendant, which was one of three railroad companies owning distinct portions of a continuous road, was held liable for the loss of the bag-? gage of a passenger received at one terminus to be carried over the whole road. The liability was not, however, based alone upon the selling of the ticket and the checking of the baggage. In addition to through tickets, it appeared that under the agreement made each of the railroád companies ran its cars over the whole route, and employed the same agents to sell passage-tickets. Besides these facts, it appeared that the lost baggage had been placed directly in charge of - the servants of the defendant company, and that its loss was due in part to the negligence of that company.
Texas & Pacific Rld. Co. v. Fort, a decision by the commission of appeals of the state of Texas, reported in 9 Am. & Eng. Rld. Cases, 392, is also relied on. There it is held that the delivery of through cheeks upon which were stamped letters indicating the different railways over which the baggage would go, constituted a contract under which the several companies were liable, regardless of th'e line upon which .the loss occurred—a proposition to which we cannot accede. The decision in this case is based upon the ruling in Hart v. Rail
The only other case relied on is Wolf v. Central Rld. Co., 68 Ga. 653. It was there held that where a passenger with a through ticket over a connecting line checked his baggage at the starting-point through to his destination, and upon arrival there found that it had been injured, he might sue the railroad company which issued the check.or the one delivering the baggage in bad order. Upon the facts in that case the court determined that the company selling the tickets was to be regarded as the agent of the other companies composing the line, and intimated that where a passenger travels over a continuous line on a through ticket, and the baggage is sent on a through check, that any one of the companies may be held liable for spoliation of the baggage, irrespective of the point at which jf actually occurred; and the query is also raised as to whether, they are jointly liable as partners. The writer of the opinion held that by the sale of the tickets and the division of the receipts at periodical settlements, they acted as principals and not as agents, and that by such action they stood substantially in the position of partners in the through business, and were jointly and severally liable as such. The concurrence of the other justices was,' however, placed upon the ground that as the last carrier,- and the one which was ■ sued, received the baggage in apparent good condition, it was presumably liable, and the chief justice stated that this was the exact point decided. It is difficult in many cases to determine whether the arrangements and agreements of connecting carriers are such as to constitute each of them principals, or to place them in the.relation of partners; but neither upon reason nor authority can we hold that the sale of through tickets and the checking of baggage over the connected lines
The instructions of the court not being in accord with the views herein expressed, and the evidence being insufficient to support the verdict, the judgment of the district court must therefore be reversed, and the cause .remanded /or another trial.