139 N.Y.S. 51 | N.Y. App. Term. | 1913
The plaintiff sues to recover the value of a diamond necklace alleged to have been lost or stolen through the negligence of the defendant. On August 30, 1910, plaintiff was a passenger with her husband on one of the defendant’s cars which left Lake Placid bound for the city of Hew York. The plaintiff had with her a small leather bag, in which were certain toilet articles and a small wooden jewelry box which contained a diamond necklace. Plaintiff testified that, when she prepared to retire for the
In Macrow v. Great Western R. Co. Law Rep. (6 Q. B. Div.) 612, 622, Chief Justice Cockburn said: “Whatever the passenger takes with him for his personal use or convenience according to the habits or wants of the particular class to which he belongs, either with reference to the immediate necessities, or to the ultimate purpose, of the journey, must be considered as personal luggage.”
The range of articles which are included within the term must necessarily be as diversified as individual tastes and habits. A few of the cases on the subject will indicate the latitude of the term. Thus, baggage has been held to include: The tools of a harness maker (Davis v. Cayuga & S. R. R. Co., 10 How. Pr. 330) ; or carpenter (Porter v. Hildebrand, 14 Penn. St. 129) ; the surgical instruments of an army surgeon (Hannibal & St. J. R. R. v. Swift, 12 Wall. 262); a camera (Atwood v. Mohler, 108 Ill. App. 416) ; a snuff box, writing paper and ink (Grant v. Newton, 1. E. D. Smith, 95) ; a watch (McCormick v. Hudson R. R. R. Co., 4 E. D. Smith, 181; Jones v. Voorhees, 10 Ohio, 145; American Contract Co. v. Cross, 71 Ky. 472) ; a pocket pistol and a case of dueling pistols (Woods v. Devin, 13 Ill. 746) ; a telescope (Cadwallader v. Grand Trunk R. Co., 9 Low. Can. 169) ; an opera glass (Toledo W. & W. R. Co. v.
And in Parmelee v. Fischer, 22 Ill. 212, the plaintiff was permitted to recover for a variety of articles as baggage which ranged from a German silver teapot and a looking-glass to a new double-barreled gun.
Personal jewelry such as a lady may carry for her personal use has often been held by the courts to come within the term baggage. In Brooke v. Pickwick, 4 Bing. 475, a gentleman traveling by coach with his daughter had in his trunk jewelry used by the latter, which was lost. It was held to be baggage, Best, Ch. J., saying: “ The plaintiff’s trunk contained no more than a person in his condition might be expected to carry with him.”
In McGill v. Rowand, 3 Penn. St. 451, a plaintiff was allowed to recover for the loss of. his wife’s valuable diamond breastpin, a gold breastpin and a miniature set in gold, with chain.
In Doyle v. Kiser, 6 Ind. 242, the court said: “ The articles of property treated as baggage, according to the decisions of different Courts, may be, clothing, traveling expense-money, a few books for the amusement of reading, a watch, a lady’s jewelry for dressing, etc.”
In McCormick v. Hudson R. R. R. Co., 1 E. D. Smith, 181, a gold watch and such other articles of jewelry as a passenger ordinarily wears about his person were held to be baggage.
In Hubbard v. Mobile & Ohio R. Co., 112 Mo. App. 459, articles consisting of opera glasses, jewelry, watches, diamonds, earrings, and several rings, and breastpins were held to be baggage, the court saying: “ It will be seen at a glance that they were things appropriate to the apparel of a woman, as all of them were pieces of jewelry such as are commonly worn on the person for use or ornament. * * * We might almost pronounce the articles to be baggage as a matter of law; for plainly they were personal apparel.”
In Knieriem v. N. Y. C. & H. R. R. R. Co., supra, a plaintiff was permitted to recover for four rings, a watch and a silver bag used by his wife, on the ground that these articles were baggage. In Railroad Co. v. Fraloff, 100 U. S. 24, the plaintiff, a foreign lady of rank and wealth, was permitted to recover for the loss of 275 yards of rare and valuable lace, which was lost from her trunks. It was shown that she was accustomed to wear the lace upon different dresses when on visits or frequenting theatres or attending dinners and balls and receptions, and the court held that-the lace was baggage and affirmed a verdict for the plaintiff for $10,000.
In those cases where jewelry carried by a passenger has been held not to be baggage, the jewelry was being carried as merchandise for sale, or as presents for friends, or belonged to some person other than the passenger. Richards v. Westcott, 15 N. Y. Super. Ct. 589; 20 id. 6; Nevins v. Bay State Steamboat Co., 17 id. 225. While a recovery was denied for lost jewelry in Steers v. New York & Philadelphia Steamship Co., 57 N. Y. 1, the decision was placed upon the "ground that the bill of lading or receipt for the trunk containing the jewelry expressly provided that such articles should not be carried by passengers only at their own risk.
The fact that the diamond necklace which was lost was not used by the plaintiff on the journey, does not preclude it from being considered as baggage. Dexter v. Syracuse, B. & N. Y. R. Co., 42 N. Y. 326.
It follows that the judgment appealed from should be affirmed, with costs.
Gruv and G-ebabd, JJ., concur.
Judgment affirmed, with costs.