| Mo. | Oct 15, 1867
delivered the opinion of the court.
Plaintiff brought his action in the court below against the defendant, as a common carrier, for the value of a piece of carpeting, alleged to have been delivered to the defendant for transportation from St. Louis to Kansas City, and by. the defendant lost. The defendant denied that the carpeting was ever delivered to it, and on this fact issue was joined. The facts appear to be that, on or about the 20th of October, 1865, plaintiff came to defendant’s passenger depot at St. Louis, Missouri, having with him a trunk and the piece of carpeting in controversy ; that, having purchased a ticket to his destination in Kansas City, he demanded of the defendant’s agent for receiving and checking baggage at the depot a check for the trunk, which was given, and at the same time asked for a check for his carpeting, when the agent told him that “ it was unnecessary,” that “ he would strap it on the trunk; one check would do for both ; it would go safely.” Plaintiff then delivered the same to the baggage agent, who took it into his care and custody, but it was lost in the course of the transit and never returned to plaintiff. The trunk went safely and was duly delivered. The defendant resisted a recovery exclusively on the ground that the agent had no autliority to receive the carpeting to be carried by the passenger train, and that it should have been taken as freight to another and distinct depot and carried on another train. It also introduced in evidence its instructions to baggage men, by which'they were prohibited to check or receive any articles of freight or merchandise on passenger trains. On the above facts the court gavejudgment for the plaintiff.
A delivery to a servant or d.Uv authorized agent of a common carrier, who is in the habit ot receiving packages, is unquestionably to be considered a sufficient delivery — Ang. on Car. § 146. But to make the common carrier responsible as such, the delivery must be made to a servant who is instructed to receive the goods and not to a person engaged in other duties — Ang. § 129. In Blanchard v. Isaacs, 3
Will the fact that the company instructed the baggage master not to receive or check any article of merchandise on the passenger train exonerate them from liability ? It is not pretended that the plaintiff had any notice of such instruction, or that the agent was not acting within the general line of his duty. The general rule is that “ If a servant is acting in the execution of his master’s order, and by his negligence cause injury to a third party, the master will be responsible, although the servant’s act was not necessary for the proper performance of his duty to his master, or was even
Now, the right of the plaintiff to recover here, is because the carpeting was placed in charge of the baggage master to be transported to Kansas City. The company had entrusted to their agent authority to receive and check baggage, and have also given him power to determine what property came within that clas, or description of property. The agent, in the usual and .ostensible scope of his employment, received the carpeting without hesitation, and said that one check would answer for both the carpeting and the trunk; that he would strap them together and they would go safe. This was a complete reception by and delivery to the company. The plaintiff was not apprised or notified that it was against any law or regulation of the company for the article to be carried on the train on which he took passage ; the person authorized and appointed for that purpose received it willingly, and any private order or instruction given by the company to its agents as to what articles should be received and checked for, could not exonerate it from liability or impair the rights of the plaintiff. The disobeying of orders on the part of the servant cannot be allowed to work an injury to innocent third persons.
Judgment affirmed.