234 P. 195 | Okla. | 1925
Parties will be referred to as they appeared in the trial court, inverse to their order here. Mike Samuels, plaintiff, had judgment against said receiver for $662.32, verdict and judgment being also for defendant Williams. Williams, in the transfer business, about six o'clock p. m. on Sunday, in 1921, at the request of plaintiff, a traveling man, stopping at a hotel in Oklahoma City, transferred a sample trunk and a sample case of the latter from the hotel to the depot of the defendant. Plaintiff intended to purchase a ticket and go to Cushing on the eleven o'clock p. m. train. On account of a rain storm he changed his mind and decided that he would not make said trip, but would go to Chickasha the next day on another road. This he did. Williams deposited said sample case in defendant's baggage room in the presence of the agents, but gave no verbal notice of ownership or destination of either the trunk or case. The evidence tends to show that the sample trunk was deposited on a platform a few feet from the depot, being the usual and customary place for placing trunks of passengers. Williams attached to the trunk and case claim checks issued by himself, a duplicate of each of which was delivered to plaintiff. On the following morning, pursuant to the change of plaintiff's plan and at his direction, Williams repossessed the said sample case for plaintiff, but was unable, with the assistance of defendant's employes, to recover said trunk, which was thereby lost to the plaintiff. Plaintiff neither purchased a ticket to Cushing, nor in any manner advised the defendant of his intended passage, except as stated. He did not go in person to the depot.
1, 2. After instructing upon the question of delivery, the court informed the jury that if plaintiff intended to become a passenger upon its railway at the time said trunk was delivered to the baggage department of the company, notwithstanding plaintiff may have changed his mind and decided to become a passenger on some other road, nevertheless the relation of passenger and carrier existed as between plaintiff and the railway company, and the latter would be liable to the former as insurer therefor, if the company failed to redeliver the trunk. The giving of this instruction was error. The statutes of this state provide:
"The liability of a carrier for luggage received by him with a passenger is the same as that of a common carrier of property."
Thereby the carrier is liable as insurer for luggage as for freight. It is elementary that in order to fix upon the defendant liability as a carrier of said trunk that plaintiff must have stood in the relation of passenger to defendant. The carriage of the trunk was ex vi termini incidental to the carriage of the plaintiff as a passenger. Southern Ry. Co. v. Rosenheim Son (Ga. App.) 58 S.E. 81; Hutch. Carr. (3rd Ed.) sec. 1274. No duty arose with respect to plaintiff as passenger until he had offered himself and had been impliedly or actually accepted for carriage. If plaintiff never became a passenger his trunk never became luggage. Id. Some courts have held that the relation between carrier and passenger is contractual and is created only by contract, express or implied. Farley v. Cincinnati, H. D. Co., 108 Fed. 14, 47 C. C. A. 156. But the relation may *134
exist independent of any contract between the parties themselves. As shown in McNeill v. Durham C. R. Co.,
3. Under said statute, defendant occupied the same relation to said trunk as the carrier of freight delivered into its possession where the relation of the parties is not that of carrier and consignee or owner. In Kansas City, M. O. Ry. Co. v. Cox,
"The relation of common carrier and shipper not having arisen, the railway company's liability was that of a warehouseman, and it was only liable for failure to exercise ordinary care. It was error to charge it with a higher degree of responsibility."
St. Louis S. F. R. Co. et al. v. Giddings,
We deem it unnecessary to discuss the other errors assigned. Because the said instruction held defendant to the liability of insurer of the trunk rather than that of warehouseman, let the judgment be reversed and the cause remanded for new trial.
By the Court: It is so ordered. *135