40 So. 427 | Miss. | 1905
delivered the opinion of the court.
On April 22, 1905, Lee Shackelford, the appellee and cross-appellant herein, a drummer for the Melton Hardware Company, applied for and obtained from the agent of the appellant, the New Orleans & Northeastern Railroad Company, at Vossburg, Miss., a check for his sample case, having supplied himself with a thousand-mile ticket over said road, and, with his mileage ticket and a check for his sample case as baggage, he boarded the train of the said appellant to go from Vossburg to Pachuta. He arrived at Pachuta about twelve o’clock at night, and went afterwards in search of his baggage, which had been checked, and was met by the agent of the appellant railroad company at Pachuta and informed that his baggage had been destroyed ^or stolen, and was asked by the agent to give him the amount of the contents of the said baggage, or sample case, which he accordingly did, and the agent forwarded said statement of the contents and value of said sample case to a superior officer of the railroad company. Not having been paid for the sample case and contents, he afterwards — to wit, on September 22, 1905 —instituted this suit before a justice of the peace for double the value of the property, as shown by the record. Thereupon a trial was had before said justice of the peace, and the market value of said property so lost and destroyed was shown to be $78.09, and he obtained a judgment for $156.18 — the same being double the value of said property, as claimed, under Code 1892, § 3569, together with all the costs expended in said cause.
Prom this judgment there was an appeal taken by the New Orleans & Northeastern Railroad Company to the circuit court, in which court a trial was had, in which it was shown by the testimony of the plaintiff that he was a drummer, and had traveled over the railroad for two years, and that it was customary for the railroad company to check drummers’ samples; that in this particular case, the agent of the railroad company knew that it was a sample case at the. time he gave plaintiff the check for
The testimony makes it plain that the agent knew that Shackelford was a drummer, and that this was a sample case, and not a trunk or valise for ordinary baggage. The agent testifies that he did not know the contents of the sample case, but the jury might very fairly have inferred from his knowledge of the sample case that it was filled with some heavy samples of some sort. It also appears that the railroad company has been in the habit of checking this sample case as baggage for some two years here
The action of the court and the finding of the jury were correct on the direct appeal. Code 1892, § 3569, is in the following words:
“If a railroad company carelessly or willfully injure or allow to be injured or lost any trunk or baggage, either by improper handling or otherwise, it shall be liable to the owner in a sum not less than double the amount of the actual damage.”
The court below refused to give- a charge for double damage, and, we think, correctly. This statute is a highly penal statute-, and was clearly meant to apply only to such baggage as, in a proper sense, personal baggage — articles of wearing apparel, etc. —contained in the usual trunk carried for personal convenience as a receptacle for wearing apparel and the like. It was never in the mind of the legislature to visit this penalty upon the railroad companies in a case like this, where the articles are not, in a proper legal sense, baggage, and where the liability of the railroad company arises from the fact that it knew the character of the articles, and, consequently, that they were not strictly baggage, and yet agreed and contracted to transport them’as baggage — -in other words, out of the estoppel arising against the railroad company in such case to deny.that the articles were baggage and to be transported as such.
The result is that the judgment of the court. below is affirmed on appeal and cross-appeal.