43 Pa. Super. 303 | Pa. Super. Ct. | 1910
Opinion by
On the afternoon of August 2, 1907, the plaintiff, who was then temporarily stopping at the Imperial Hotel in New York city, sent her dress suit case and trunk to the Grand Central station of the defendant in that city. They were delivered to the defendant’s baggage agent, who gave separate receipts for each, and placed in the outgoing baggage room where trunks are ordinarily taken to be checked. No instructions were asked for by the defendant, nor any given by the plaintiff, either at the time the trunk and suit case were so delivered, or subsequently, as to their destination; nor had she instructed the express agent to put any value on the trunk or suit case, and no statement of value was given to or asked for by the defendant’s baggage agent. At the time the baggage was delivered to the defendant the plaintiff intended to go from New York city to a place called New Rochelle, which is on the New York, New Haven & Hartford Railroad, spend the night there, return to New York city the next day, and purchase a ticket and have the trunk checked to a place called Catskills, which is on one of the defendant’s lines. Nothing was said, however, to the defendant’s baggage agent of this intention, and she had not and did not afterwards purchase a railroad ticket from the defendant. During the same afternoon she changed her mind and abandoned her trips to New Rochelle and to Catskills. The next day she went to get her baggage. The dress suit case was delivered to her, but the trunk was not. Diligent search was made for it, but it was never found. The plaintiff then brought this action to recover
The defendant contends on this appeal for three propositions: 1. The defendant was not under the law of New York a warehouseman with respect to the plaintiff’s trunk; 2. It was at most, under the law of New York, liable as a common carrier with respect to the trunk, and as such common carrier its liability, the value of the trunk and contents not having been declared, is limited to $150;
Was the defendant a gratuitous bailee? In determining this question the fact must not be overlooked, although it was not expressly announced to the defendant, that the plaintiff was an intending passenger and that the place at which the trunk was delivered to and accepted by the defendant’s baggage agent was provided by the defendant for the reception and checking of baggage of intending passengers and for the storage of the same for the reasonable time that commonly intervenes before the passenger purchases his ticket and has his baggage checked. According to the testimony of the defendant’s witnesses the intending passenger who has delivered baggage at that place has twenty-four hours within which to obtain his ticket and have the baggage checked, without charge for storage. If the baggage is not checked within that time storage is charged, and in the ordinary course of business the same is done if the owner, having, changed his mind as to going upon the journey, calls to take the baggage away. We quote from the testimony of the station baggage master upon this subject: “Q. In your long experience as baggage master there you have had many cases where people have sent their baggage there to the road and then countermanded it and taken it away without sending it out on a ticket, haven’t you? A. It has been done; yes, sir. Q. Well, if a person sends baggage there to your road and it remains there for more than twenty-four hours and from a change of mind of the intending passenger they recall the baggage, it is customary to charge a storage, isn’t it? A. Yes, sir. Q. If they come with a ticket within twenty-four hours you do not charge storage. A. No. . . . Q. And in this particular case it has been testified that this plaintiff did not buy a ticket but carné there with, a cab and demanded her baggage. Now if the trunk had been found and had remained in your place more than twenty-four hours, you would unquestionably
Before discussing the other two propositions it is advisable to notice the question as to the burden of proof and the prima facie presumption of negligence, which is raised by the fifth assignment of error. In determining this question it is unimportant whether the defendant as to the trunk was responsible as carrier or as warehouseman. In either case the general rule would apply that an unexplained loss of the property in the hands of the bailee gives rise to a presumption of negligence, where the bailment is for the mutual benefit of the bailor and bailee and the duty of exercising ordinary care exists. See Hoyt
We come then to the difficult question raised by the appellant’s first and second propositions, which may be considered together. The necessity of determining this question arises from the provisions of sec. 38, chap. 429, of the laws of New York, approved June 6, 1907, and known as the “Public Service Commissions Law of New York,” which was duly offered in evidence. The section is entitled “Liability for damage to property in transit.” As counsel for the defendant correctly say, the first three sentences of the section clearly relate to freight, and not to baggage. The fourth sentence relates to baggage and reads as follows: “Every common carrier and railroad corporation shall be liable for loss, damage and injury to property carried as baggage up to the full value and regardless of the character thereof, but the value in excess of $150 shall be stated upon delivery to the carrier, and a written receipt stating the value shall be issued by the carrier, who may make a reasonable charge for the assumption of such liability in excess of $150 and for the carriage of baggage exceeding one hundred and fifty pounds
The question raised by the sixth assignment of error, so far as it relates to the value of the plaintiff’s clothing contained in the trunk for use by her, as distinguished from what it could be sold for in the market, is answered by the decision in Fairfax v. New York Central & Hudson River Railroad Co., 73 N. Y. 167, where the court said: “The court did not err in charging the jury that the plaintiff was entitled to recover the full value of the clothing for use to him, in New York, and not merely what it could be sold for in money. The clothing was made to fit the plaintiff, and had been partly worn. It would sell for but little, if put into market to be sold for secondhand clothing, and it would be a wholly inadequate and unjust rule of compensation to give plaintiff, in such a case, the value of the clothing thus ascertained. The rule must be the value of the clothing for use by the. plaintiff. No other rule would give him compensation for his damages. This rule must be adopted because such clothing cannot be said to have a market price, and it would not sell, for what it was really worth.”
The judgment is affirmed.