Hœger v. Chicago, Milwaukee & St. Paul Railway Co.
23 N.W. 435
Wis.
1885
Check Treatment
Cassoday, J.

Which party must suffer the loss of the trunks and their contents, upon the facts stated? The counsel for the plaintiffs frankly concedes that if the trunks and their contents are to be regarded as baggage, and the stringency of the defendant’s liability, after the trunks arrived at Hastings, is to be no greater than in the case of ordinary baggage, then that there can be no recovery. With equal frankness the counsel for the defendant concedes that if the trunks and their contents are to be regarded as freight, and the stringency of the defendant’s liability, after the trunks arrived at Hastings, is to be the same as in the cases of ordinary freight, then that the defendant is liable. The learned counsel on both sides assert that there is no reported case involving the precise question here presented. With faith in the fidelity of their research, and a.clear conviction as to what the law in such cases ought to be, and, as we think, is, we have made no attempt to examine through the multitude of cases bearing upon the question, in verification of their assertion. Had the defendant failed to deliver the trunks at the depot in Hastings, and had they been destroyed in transit, or carried elsewhere and lost, then the defendant might have been liable for their value as a common carrier.

Dilg having engaged the defendant to transport the trunks as his baggage, and the defendant, knowing their contents, having received and checked them as his baggage, and Dilg and the trunks having been carried from Red Wing to Hastings on the same passenger train, we must, under the facts stipulated and found, hold that both parties were, by their contract, conclusively estopped from claiming that the trunks were not to be carried as baggage, or that they were not to be received, treated, and cared for on their arrival at Hastings as baggage, and not as ordinary freight. In one portion of the opinion in the recent case of Texas, etc., R. Co. v. Capps, 23 Am. Law Reg. 377, not cited by counsel, this proposition is asserted so far as estopping the railroad *105company. But it is well established that estoppels, to be binding, must be mutual.

Under that contract the defendant was bound to safely carry the trunks and their contents to the passenger depot at Hastings, and there place them upon the platform or other customary place of delivery, and keep them there for a sufficiently reasonable length of time for the duplicate checks to be presented and the trunks claimed. Patscheider v. G. W. R. Co. L. R. 3 Exch. Div. 153; .Dininny v. N. Y. & N. H. R. Co. 49 N. Y. 546; Ouimit v. Henshaw, 35 Vt. 605; Hutchinson on Carriers, §§ 707-710; Thompson on Carriers, notes, p. 534, § 22. It stands confessed that this duty of the defendant was fully performed. Being performed, its duty as a common carrier of baggage ended, and its duty as a bailee for hire or a warehouseman began. Hutch. Carr. §§ 707-710; Thompson on Carriers, notes, pp. 534, 535, § 23; Roth v. B. & S. L. R. Co. 34 N. Y. 548; Louisville, C. & L. R. Co. v. Mahan, 8 Bush, 184; C., R. I. & P. R. Co. v. Boyce, 73 Ill. 510; Texas, etc., R. Co. v. Capps, supra. That duty required the defendant to then place the trunks in a proper and suitable baggage-room, and then exercise ordinary care and diligence in safely keeping them there. These things were done. The destruction by fire being without the fault or negligence of the defendant, there was no liability.

By the Court.— The judgment of the circuit court is affirmed.