192 P. 1058 | Or. | 1920
The defendant claims that the evidence shows that the trunk was stolen. The defendant admits that it received and'stored the trunk in its warehouse. There is nothing to indicate that the trunk was stolen, except the fact that when the plaintiff called for the trunk the defendant searched for it, but could not find it, and the further circumstance that the company kept a watchman in the warehouse.
The defendant contends that because of language employed in the amended complaint the action must be held to be an action in trover, and that therefore the plaintiff cannot prevail if the trunk was stolen, even though the defendant was negligent. The plaintiff asseverates that the action is not in trover, but is in assumpsit on a bailment contract.
The check which the defendant gave to Norcross is labeled on its face “Duplicate Baggage Check.” The ñame of the defendant, its street address in
“This check is issued to cover traveler’s baggage only, consisting of passenger’s wearing apparel, and the maximum liability assumed by this company in case of loss or damage is limited to $100, unless a greater value is declared by owner at time of checking and payment made therefor at the rate of 50c for each $100 additional value.
“Receptacles not locked and baggage in damaged condition are accepted at owner’s risk of loss of contents by pilfering or otherwise.
“Baggage under this check will be stored free for three days.”
The check is 2% inches by 2yé inches in size. There is no evidence to indicate that Norcross had knowledge of the fine print, except the mere fact that the check was delivered to him. The plaintiff testified that she had no knowledge of anything on* the back of the check “until she saw the same in her attorney’s office at the time of the beginning of the case.”
It may be assumed that, as contended by the defendant, the corporation occupied the position of bailee, with the duty of a warehouseman, and that only ordinary care was required of it in the performance of that duty. It may also be assumed that, although the bailee could not have exempted itself by contract from its own negligence (Pilsen v. Tiptop Auto Co., 67 Or. 528, 535 [136 Pac. 642]), nevertheless, as argued by the defendant, it was lawful to agree upon the value of the subject matter of the bailment: Normile v. Oregon Nav. Co., 41 Or. 177
The corporation next insists that the trunk was received and stored by it as baggage, and that, since the plaintiff did not inform the defendant about the contents of the trunk, it cannot be held liable for any articles not properly classed as baggage. The plaintiff did not inform the defendant of the nature or value of the contents of the trunk, and there were no representations made except such, if any, as were implied by the circumstances. The defendant came into possession of the trunk through a railroad baggage' check delivered to it by the plaintiff, and the defendant contends that this fact, together with, the attending circumstances, amounted to an implied representation that the trunk contained baggage. Indeed, the voucher given to the plaintiff was called a “duplicate baggage check.” We shall assume, without deciding, that the plaintiff can recover the value of such articles only as could properly be classified as baggage if the controversy were one between a carrier and a passenger.
The defendant takes the position that 19 of the articles contained in the trunk were not baggage. These disputed items, with their values, are as follows: Japanese basket, $3.75; aluminum needles, $5; teddy, $1.50; gold and pearl opera-glasses, $25; 3 thrift stamps, $.75; silverware, $8; linens and towels, $7; 1 dozen new photographs, $14; box of jewelry, $10; books, $2; electric iron, $5.50; 2 new leather
The statement has been frequently made that it is not practicable to say with precise accuracy just what the term “baggage” includes: Oakes v. Northern Pac. R. R. Co., 20 Or. 392, 395 (26 Pac. 230, 23 Am. St. Rep. 126, 12 L. R. A. 318); Hawkins v. Hoffman, 6 Hill (N. Y.), 586 (41 Am. Dec. 767); Johnson v. Stone, 11 Humph. (Tenn.) 419. The difficulty encountered in any attempt to frame a definition which will include all possible articles and exclude all else comes from the fact that, although there is a general rule commonly applied by the courts, a given article may properly be classified as baggage in one case and with like propriety be excluded from that classification in another ease. The definition, or generalization rather, usually found in the books, is to the effect that “baggage” includes whatever articles a passenger usually takes with him for his own personal use, comfort and convenience, according to the habits or wants of his class, either with reference to his immediate necessities or to the ultimate purpose of his journey.
Whether or not an article is to be treated as baggage “is to be determined from the character and length of the journey the owner is on, its purposes and objects, his station in life, and the habits and usages of the class of travelers to which he belongs”: 10 C. J. 1188. A traveler may carry with him such articles as are fairly and ordinarily necessary to his personal comfort and convenience, both during the journey and for a reasonable time after its termination; and due consideration must be given to the nature of the journey, its immediate necessities, and
It has been held that money in a trunk is not baggage; hut the weight of authority is that the term “baggage” includes money reasonably necessary and intended for traveling expenses: 10 C. J. 1190.
The term “baggage” has been held to include a reasonable quantity of a watchmaker’s tools (Wells v. Great Northern Ry. Co., 59 Or. 165 [114 Pac. 92, 116 Pac. 1070, 34 L. R. A. (N. S.) 818, 825]); a dress pattern containing twelve yards of cloth, valued at $8.85, purchased en route to take home to a member of the family (Kansas City S. R. Co. v. Skinner, 88 Ark. 189 [113 S. W. 1019, 21 L. R. A. (N. S.) 850]); a manuscript manual on Greek grammar prepared by a teacher with a view to ultimate publication, hut carried about by him to aid in his work of teaching (Wood v. Cunard Steamship Co., 192 Fed. 293 [112 C. C. A. 551, 41 L. R. A. (N. S.) 371]); a woman’s fancy work and miscellaneous ornaments, a saving’s hank and contents, and a zither key (Railroad Co. v.