Spooner v. Hannibal & St. Joseph Railroad

23 Mo. App. 403 | Mo. Ct. App. | 1886

I.

Hall, J.

At the beginning it may be well for us to say that the judgment rendered in this case can be upheld only on the ground of the defendant’s liability as a common carrier of passengers for the loss of the valise and its contents as.baggage. This is true, not only because the petition based the defendant’s liability upon such ground, but also because the evidence failed to establish any liability against the defendant upon any other ground. It is true that the plaintiff did testify to the payment by him of a charge made by the baggage-man of thirty-five cents for the transportation of the two trunks and valise, but that charge was for extra baggage and not lor merchandise. The payment of such charge • ■entitled the plaintiff to have the articles with him carried as baggage without regard to the amount of them, hut such payment did not give to the plaintiff the right to have articles, not properly baggage, carried as baggage in any amount. The payment of the charge was made wholly on account of the excess in the amount of the •articles and not at all on account of the character of the .articles.

So far as the rights and liabilities of the parties depended upon the character of the articles they were not affected by the payment of the charge. Thompson’s •Carriers of Passengers, 522.

In the case it appeared, too, that the defendant did not know the contents of the valise. So we repeat that, under the petition as well as the facts in evidence, the judgment in this case rests upon the defendant’s duty to ■carry the valise and its contents,as baggage.

II.

The word “baggage” has a well defined, technical, legal meaning and we presume, therefore, that the word was used by the legislature in section 804, Eevised Statutes, in accordance with such meaning. State ex rel. v. Leffingwell, 54 Mo. 471. The meaning of the word is in no wise altered or changed by the statute. The question as to what constitutes baggage is a mixed question of law and fact, but if the facts are all admitted the question is one purely of law. Hutchinson on Carriers, sect. 688.

It has been said that, “It is, of course, impossible to give any general rule which will be equally applicable to all cases for the determination of what is and what is not properly baggage. This depends to a very great extent upon the circumstances of each individual case, upon the length of the journey, the purpose for which it is made, the position in life and occupation of the traveller,'the mode of conveyance and the character of the country through which he -intends to pass. The adjudicated cases on this subject justify the statement that any thing may be carried as personal baggage which travellers usually carry for their personal use, comfort, instruction or amusement, having regard to the circumstances enumerated above.” Thompson’s Carriers of Passengers, 510.

But the books are all agreed that articles carried for sale are not baggage without regard'to what the articles may be. Hutchinson on Carriers, sect. 685 ; Thompson’s-' Carriers of Passengers, 511, 512. Articles which, under other circumstances, would be baggage, when carried for sale are not baggage.. '

The plaintiff testified that certain articles contained; in the valise were carried by him for sale. Those articles were not baggage.

It would have been better for the trial court, instead of the second instruction given for the plaintiff, which was a mere abstraction, to have instructed the jury as to-what constitutes, baggage, in.relation to. the facts in evidence.

As an abstract statement the instruction was, no-doubt, correct. But nowhere were the jury told that articles carried for sale are not baggage. And from that instruction and the third instruction given for the.plaintiff the jury must have inferred that if the articles carried in the valise were £ £ such articles of necessity and convenience as are usually carried by the passengers for their personal use and comfort, instruction and amusement, or protection, haying regard, to the .object and length of the journey,” they are baggage although carried for' sale.

It would seem that the jury made such inference because they found that all the articles contained in the valise were baggage in the face of a sworn statement made by the plaintiff that certain of the articles were carried for sale.

But if the jury did not make such inference their verdict, in so far as concerns the articles carried by the plaintiff for sale, was absolutely without proof to support it and was against a sworn admission made by plaintiff. For this reason the court should have granted a new trial. As to the other articles the evidence warranted the verdict, but as to the articles carried for sale the verdict was against the plaintiff’s admission made as a witness, which was as binding upon him as if it had been made in the pleadings. As a matter of law the articles carried for sale were not baggage.

III.

We are asked to hold, because the valise contained articles which were not baggage without the defendant’s knowledge, that the plaintiff cannot recover for the valise and the articles contained in jit which were properly baggage,

We do not so hold. As to the-articles not properly baggage the plaintiff under the petition and facts cannot recover; but as to the valise and the articles contained in it which were properly baggage the plaintiff can recover. 3 Sutherland on Damages, 293; Railroad v. Fraloff, 100 U. S. 31.

IV.

The value of the property lost, which was, baggage, with interest was the correct measure of damages ; if the property had a market value, then the market value, otherwise, the value of it for use to the plaintiff. Sutherland on Damaged, supra'.

The expenses incurred by the plaintiff were too remote.- Besides there was no evidence that the plaintiff sought the baggage, or that he made such search at the request of defendant’s agent.

Judgment reversed and cause remanded.

Ellison, J., concurs; Philips, P. J.,.absent.