85 W. Va. 658 | W. Va. | 1920
Plaintiff sued before a justice to recover the value of a trunk and its contents delivered for carriage as baggage from Anawalt to Gary, two stations on the line of defendant’s railroad in McDowell County about fifteen miles apart. At neither station does defendant maintain a depot building or employ a baggage agent. Denied the right to have a judgment for the property or its value by the circuit court of that county, sitting in lieu of a jury with the consent of the parties, upon appeal from the decision of the justice, plaintiff prosecutes this writ here. The facts proved and not controverted, defendant offering no testimony, are few and require for decision only the application of what seem to be well established legal principles.
Until about the middle of November, 1917, and for sometime prior thereto, plaintiff and his wife and family resided with Mrs. Debo, their aunt, at Anawalt, when they decided to move and did move to Gary, and with them took all their household effects except the trunk and what it contained. These they left in the home of Mrs. Debo who later in November also went to Gary as a passenger on defendant’s train, and caused the trunk and its contents to be delivered to defendant at Anawalt for
Apparently Mrs. Debo claimed no part of tbe property and bad no interest in it other than that prompted by relationship of tbe parties and ber desire to serve her kindred. As plaintiff alone has sued, be naturally may be presumed to be tbe owner of the property, though tbe schedule of the items and estimated single and total valuation discloses, besides cutlery and tableware, tbe wearing apparel of bis wife and their minor children, none of whom were passengers on tbe train that carried Mrs. Debo- and tbe trunk to their intended destination.
As a general rule a common carrier assumes, as an incident of its contract for tbe personal carriage of a passenger, no liability for bis baggage other than such'as be takes with him for his own personal use while on tbe journey undertaken by him, that is, from tbe time of bis departure until his return, and therefore not for tbe property of others which be has included with bis own personal baggage. As to such other property the carrier is liable only as gratuitous bailee. 4 Michie, Carriers, §§ 3431-3432; 2 Moore on Carriers (2d Ed.), p. 1297; 3 Hutchinson, Carriers (3d Ed.), § 1276. As said by Hutchinson in tbe section cited: “Since tbe carriage of baggage is incidental to tbe contract for the transportation of the passenger, it follows that
The rule thus stated is sustained by the overwhelming weight of authority and rests upon principles of justice and fair dealing. The relation of carrier and passenger is a personal one with reciprocal rights and duties. It includes provision for the transportation of the latter with such personal effects as are reasonably necessary for the convenience and comfort of one in his position in life and consistent with the purpose which prompts the journey. In no sense is it part of the agreement upon which the relation is based that the carrier will permit the passenger to carry effects not his own for the convenience of another. Such conduct is a fraud upon the carrier. The service of baggage carriage afforded by the latter is only for the convenience of the passenger, and, except in rare eases, is limited to his own personal effects and does not include those carried by him as a favor for another. An exception to the rule is recognized which permits members of the same family traveling together to carry their effects in the same trunk, or one to carry in his trunk the effects of the others. In such cases it is generally held each may recover for any loss to his baggage. 10 C. J. 1189. The closeness of the family relation and the community of property interests usually incident thereto afford ample justification for the exception. Here, however, though plaintiff and his family had resided at the home of their aunt for a short while, there was no such common family relationship as justifies a departure from the rule itself. Nor did they make the trip at the same time. Mrs. Debo followed
If she had informed the agents of defendant with regard to the ownership of the effects contained in the trunk, and the latter had accepted it with such information, a different rule might have applied. It is because of such knowledge on the part of the carrier that a salesman's samples, though the property of another, if accepted by the carrier with information respecting its character, may be carried as personal baggage. 10 C. J. 1194. But that information was not given here. The mere presence of plaintiff’s name upon the trunk did not constitute notice to defendant that its contents were not owned by the passenger. The owner of a trunk may frequently permit it to be used by others.
From what has been said it follows that in so far as Mrs. Debo was carrying as baggage the effects of another, without disclosing such fact to the carrier or without its knowledge derived from other sources, the latter stood in relation to such property only in the capacity of gratuitous bailee, and as such is liable only for injury or loss due to its gross negligence or willful misconduct. Lusk v. Block (Okl.) 168 Pac. 430, L. R. A. 1918C 109; Brick v. Atlantic Coast Line R. Co., 145 N. Car. 203; Becker v. Great Eastern R. Co., L. R. 5 Q. B. 241; Dunlap v. International Steamboat Co., 98 Mass. 371; Pennsylvania R. Co., v. Knight, 58 N. J. L. 287; Metz v. California Southern Ry., 85 Cal. 329; 10 C. J. 1189; 5 R. C. L. p. 178; and texts cited above. There is no proof tending to show the existence of either of these elements, and they cannot be presumed to' exist from the mere fact of the loss or injury. 3 Am. & Eng. Enc. Law (2nd Ed.), p. 542. Hence there is no basis for a recovery by plaintiff.
Affirmed.