23 Md. 402 | Md. | 1865
delivered the opinion of this Court:
The appellee brought this suit to recover the value of a-trunk and contents, lost while being transported from Baltimore to Wilmington, North Carolina.
The evidence shows, that the appellant was proprietor of' the Bay line of steamboats running between Baltimore and Portsmouth, Ya.; that in March 1857, the appellee, with his daughter and servant, as passengers on through tickets from New York to Wilmington, traveled on one of the appellants’ boats from Baltimore to Portsmouth, and thence-by the Seaboard & Roanoke Railroad, and the Wilmington Railroad to Wilmington; that his baggage was delivered on board of the boat at Baltimore, and checked for Wilmington, at which place he presented the check offered in evidence, and demanded the trunk, for which it was given;, that the trunk called for, could not be found, and that it belonged to him, and contained wearing apparel prepared for his daughter, then nineteen years of age.
The exceptions of the defendant below, present the onlv
The evidence relied on by the appellant, as tending to show that the trunk was delivered to the Seaboard & Roanoke Railroad Company, and, for that reason, was legally sufficient to go to the jury, was, that of a clerk employed on one of the appellants' boats, who testified, that “if a trunk is not delivered to the Seaboard & Roanoke Railroad Company at Portsmouth, it is always brought back to the office in Baltimore; that he knew of no such occurrence in March 185*7; that the baggage agents on board of the appellants' boats, made lists of the through baggage delivered by them to the Seaboard & Roanoke Railroad Company, and that these lists were not preserved." This testimony proves but little, if anything more, than the appellants’ usual or customary course of dealing with baggage received for transportation, and in that respect, no more than would be presumed of any one engaged in the business of a common carrier. The nature of that kind of undertaking, not only requires, but implies the adoption of some regular method or system in receiving, transporting and preserving such property as the carrier receives in the way of his business; and in this case, without positive proof that the trunk was properly delivered by the appellant at Portsmouth, any presumption that could arise in the appellants’ favor, from the evidence in question, would be repelled by one equally strong in favor of the carriers from that point to Wilmington. And, besides, the loss of the trunk under the circumstances shown here, was evidence, so far conclusive of negligence on the part of the appellant, that it could not be rebutted, nor the appellants’ liability for the loss discharged, by any general inferences drawn from its mode
For these reasons we hold, that the testimony relied on as evidence, that the trunk was delivered to the next carrier at Portsmouth, was legally insufficient for that purpose, and we think there was no error in so instructing the jury.
The remaining question appears to us to be entirely free from difficulty. The fact that the lost clothing was prepared for the daughter of the appellee, does not, in our opinion, divest him of the right to recover its value in this action. If we go further, even than the evidence warrants us in doing, and concede that the exclusive right of using, and in that way the sole and exclusive right of consuming the clothing contained in the lost trunk, was vested in her, yet, looking to the appellee’s legal obligation to provide for her, we should be constrained to hold, that he had such an interest or property in the lost clothing, as would enable him to maintain an action to recover its value. The loss complained of, was not so much a loss to the daughter, as to the father, who, by the nature of his obligation to her, was bound to make a new provision for her, and in that way bear the actual burden of the loss sustained. This point, so far as we have been able to discover, does not appear to have been considered or raised in any decided case, and in the absence of authority to the contrary, we adopt the conclusion stated, as most consistent with the general doctrines pertaining to the rights of parties so related. The question does not, however, depend on these considerations alone. The contract for the transportation was made with the ap-pellee; the checks for the baggage, including that of the lost trunk, were delivered to him, and as holder of the checks, which took the place of a bill of lading, he was entitled as consignee, as well as upon the contract made with him, to demand a performance of the contract by the ap-
We think, the rulings to which these exceptions were taken, were correct. The questions raised upon the cross-appeal of the plaintiff below, are important, but it will not be necessary .to consider them, as the judgment must be affirmed upon our review of the exceptions of the defendant.
Judgment affirmed.
