After stating the case: To fix the responsibility for lost baggage on a railroad company, either as common carrier or warehouseman, there must have been a delivery of same, including an acceptance by the company, either actual or constructive; and in order to a valid delivery, the general rule is that when baggage is taken by others to a railroad station, and even to the place where baggage is usually received, some kind of notice must be given to some agent of the company authorized to accept the same. Hutchinson on Carriers, sec. 105; Fetter on Carriers, sec. 610; R. R. v. Beckley, 119 Tenn. 528; Gregory v. Webb,89 S.W. 1109 (40 Tex. Civ. App. p. 360); Wright v. Caldwell,3 Mich. 51; Merriam v. R. R., 20 Conn. 354; Transfer Co. v. Gurley,107 Ala. 600. This rule is at times modified where a custom of a company is established to consider and treat baggage as received when left at a given place and without further notice. Fetter on Carriers,supra; Green v. R. R., 41 Iowa 410; Green v. R. R., 38 Iowa 100;R. R. v. Foster, 104 Ind. 293. There is no objection open to plaintiff, by reason of his Honor's charge on the last position, for it was dealt with as plaintiff requested; but in reference to the first, plaintiff, admitting that his Honor stated the rule in general terms sufficiently correct, insists that there was reversible error committed, to his prejudice, in so modifying a prayer for instructions, on the first issue, as to exclude from consideration a view in his favor properly arising (268) on the evidence, and this in especial reference to the testimony of the witness, Robert Ramsaur, and corroborative facts tending to show a delivery of the baggage at the proper place and notice duly given. As heretofore shown, Robert Ramsaur, in effect, testified that,
having charge of the trunk, he took it to the passenger station on Sunday afternoon and to the baggage room, and asked a man in there if he could put it in the room, and the man replied, "No, put it in the alleyway where they put the trunks," and witness then placed the trunk as directed. The man was a white man in citizen's clothes, except that he had on a railroad company vest; that he was the only man there in the office. Recalled on this point, the witness testified further: "When he told me to take the trunk out of the baggage room, he walked out of the place where Mr. Shaw and them checked baggage. He came from the office where Mr. Shaw stayed. He was doing business, and I asked him if I could put the trunk in there, and he said `No.' He was doing things what the baggage men does." The witness further said that he had seen this same man once before, and that there were at times other men in there besides Mr. Shaw and Mr. Harrill, and the witness had seen baggage agents on the Southern Railway in there, checking baggage. On the part of the defendant, Mr. Shaw and Mr. Harrill testified that they had charge and control of the baggage room, and that neither of them had received the trunk claimed by plaintiff, nor had they authorized the man referred to by the witness, Ramsaur, nor any other man, to receive it or to accept notice concerning it. The witness, Shaw, however, stated that he was at times temporarily out of the office. In view of this testimony and supporting facts on either side, the plaintiff requested the court to charge the jury: "That if it was the custom of railroad companies to receive baggage Sunday afternoon or evening before for transportation on the next morning train, and that trunks or baggage should be left at defendant's passenger station at such times in care of the baggage man in charge of defendant's baggage room, or of any agent or servant of the company in charge of defendant's baggage room, or in care of any one whom the company held out to the publicto be in charge of the baggage room, and should the jury find that the trunk, having been put in charge of the drayman for the (269) purpose, was left by him at defendant's baggage room or in what was known as the baggage alley, with the knowledge and consent of the agent or servant in charge of defendant's baggage room, as aforesaid, then in any of those events, the court instructs the jury, the compliance with such a custom, existing at the time, by the transfer man, with the knowledge and consent of the defendant's baggage man or other agent of the defendant, as aforesaid, would be an acceptance of plaintiff's trunk, and such acceptance would be a delivery of plaintiff's trunk to defendant." The court gave the prayer generally as requested, but modified same by saying that if the plaintiff's trunk was left at defendant's station at the customary time and place, with the knowledge and consent of defendant's baggage man or other authorized agent of the company,
etc. The case further states that the jury, having received the charge in the forenoon of Wednesday, 5 October, 1910, considered the case, and on Thursday morning stated they had been unable to agree on what was a legal delivery of the trunk, and, at their request and without objection, the typewritten instructions of the court were given them. The jury, having further considered the case until Friday morning, again came into court, when his Honor gave them further charge on the question of delivery, as follows: "As I understand you, you say you are troubled as to what constitutes an agent at the depot of the defendant to receive baggage. The defendant is a corporation. The defendant, therefore, conducts its business through and by its employees or agents. As the plaintiff in this case has alleged that she caused her trunk to be delivered to the defendant company, it is necessary for her to offer evidence that satisfies the jury, by the greater weight of the evidence, that some person authorized by the defendant corporation to act for it was acting for it at the time that she alleges that she delivered her trunk, or caused it to be delivered through her agent. Nothing short of a fair delivery of the baggage to the carrier or its agent will render the carrier liable for a non-delivery. That is to say, the plaintiff in this case, upon all of the evidence, must satisfy the jury, by the greater weight of it, that the trunk was delivered to some person authorized to act for the (270) defendant company as baggage to be transported over the defendant's line as such, and the agent of the defendant company must have received the baggage," plaintiff duly excepting to the modification of this prayer and to the additional charge as given. In thus modifying plaintiff's prayer for instructions, and more emphatically in the additional charge as given, the court intended to and did withdraw from the jury the view arising on the testimony that if the baggage was placed at the customary time and place with the assent and knowledge of "one held out by the company as being in charge of its baggage room," there was a proper delivery to the company, and in this we think there was reversible error, to plaintiff's prejudice, which entitles her to a new trial of the issue. True, the witness, Ramsaur, testified that he knew both Percy Shaw and J. H. Harrill, and knew also that they were the baggage agents at defendant's station, but a perusal of the entire testimony of this witness presents a permissible interpretation for the consideration of the jury, that, while he knew Shaw and Harrill were the company's agents in general charge and control of the baggage business, yet the man he found in sole occupation of the baggage room when he asked to place the trunk in the room was the company's agent, then in charge, for the time being, and, if not so in fact, he was allowed by defendant company to hold himself out as such, and for that reason a notice to him may have been sufficient evidence of delivery. This
agency, by allowing one to appear as such, or agency by estoppel, as it is usually termed, has an important place in this branch of the law. It is very well stated in Clark and Skyles on the Law of Agency, sec. 55, as follows: "It is a well-established doctrine that if a person by his words or conduct expressly or impliedly represents to another that a certain state of facts exists, and thereby induces the other to act in reliance on such representation, he will be estopped to deny the truth of the representation to the other's prejudice. And by the application of this doctrine, an agency may be created or arise by estoppel, irrespective of the actual intention, and even though it may be conceded that there was no agency in fact. The general rule is this: If a person knowingly permits another to act for him in a particular transaction, or otherwise clothes him, either intentionally or by negligence, with apparent authority to act for him therein, (271) he will be estopped to deny the agency as against third persons who, in good faith and in the exercise of reasonable prudence, deal with the apparent agent in the belief that his apparent authority is real." Tiffany on Agency is to like effect, and innumerable decisions here and elsewhere recognize and apply the principle. Gooding v.Moore, 150 N.C. 195; Bank v. Hay, 143 N.C. 326; Morrow v. R. R.,134 N.C. 92-96; Harrell v. R. R., 106 N.C. 258; Ouimit v. Hinshaw,35 Vt. 605; Minter v. R. R., 41 Mo., 503; Battle v. R. R.,70 S.C. 329; Rogers v. R. R., 2 Lans., 269, N.Y. Supreme Court; affirmed56 N.Y. 620; Ins. Co. v. R. R., 144 N.Y. 200. Some of these decisions, and many others could be cited, were on facts very similar to those presented here, making them apt authorities in support of plaintiff's position as embodied in his prayer. In Morrow's case, on a question whether defendant company knew that one had entered its trains for the purpose of assisting a passenger, the fact that an employee of the company was standing near, in a position to observe and note the circumstances, was held evidence from which knowledge on the part of the company could be inferred. Associate Justice Walker, speaking for the Court, said: "Whether the person who stood near the steps of the coach was the conductor or some other employee, charged in law or fact with the duty of providing for plaintiff's safety, while exercising the lawful right of assisting the company's passengers, is a proper subject of inquiry for the jury," etc. In Battle's case, supra, it was held: "That delivery of baggage to the only person in charge of the station, who is at the time engaged as a telegraph agent, depositing it at a place indicated by him, description of trunk and directions as to checking, and that owner would soon appear and attend to it, is delivery to the carrier." In Ouimit's case, supra, it was held that a passenger has a right to regard as agent of a railroad company a
person who handles and takes charge of baggage upon arrival of train at a station, and notice to such person by a passenger is notice to the company. And in the case of Rodgers v. R. R., it was held as follows: "The owner of a trunk sent it to the defendant's depot by an expressman, who placed it within the depot beside the baggage crate, (272) which was locked, and upon inquiring of persons there engaged in handling freight, was referred to the ticket agent as the person who took charge of baggage; he went to the ticket agent's office and told him that there was a trunk outside; the agent said that it was all right, and immediately sent two men to take care of it. When the owner inquired for the trunk on purchasing his ticket later in the day, it could not be found, though the ticket agent said hee had seen one a short time before answering to its description. Employees of the defendant also said that it had been delivered upon presentation of a check. In an action to recover the value of the trunk and its contents,held, that there was sufficient evidence of delivery, and a nonsuit was wrong."
Stating the proposition in a negative way in 6 Cyc., 671, it is said: "But the carrier will not be liable for the acts of its servants not authorized nor held out as authorized to receive baggage." On authority, therefore, the plaintiff was entitled to have this latter view presented to the jury, and to have his prayer for instructions given substantially as requested.
Plaintiff excepted further that the court submitted the second issue as to the receipt of the trunk for immediate transportation. We have frequently held that the framing of issues is a matter which is left very largely in the discretion of the trial judge, the limitation being that the issues must be sufficiently responsive to the pleading and determinative of the rights of the parties involved therein. And the statement is not infrequently made in the books that in order to charge transportation companies as common carriers, making them liable as carriers, the goods or baggage must be left with them for "immediate" transportation. It is becomes necessary, therefore, in order to make full determination of the rights of these litigants, that decision should be made whether this trunk was received and held as common carrier or warehouseman, it is well enough to submit the issue as framed. If this is done, however, the jury should be instructed that the term "immediate," in this connection, does not have its more usual meaning of "instantly, forthwith, nothing intervening either as to place, time or action," given in 4 Words and Phrases, 3393, as Worcester's (273) definition, but it means, rather, "reasonable time," having due regard to "the nature and circumstances of the case," cited in Words and Phrases as Bouvier's definition. The controlling idea being
that in order to fix upon a company responsibility for baggage, as a common carrier, the same must be delivered by the passenger and accepted for transportation within a reasonable time before taking his intended train. There is a decision (Goodbar v. R. R. Co.,53 Mo. App. 434) which tends to hold that this must be the next train, but we doubt if this is a correct statement of the general rule, and certainly not where a custom is established on the part of the company to accept baggage for transportation on a subsequent or later train. The true rule, we think, is very fully stated by Elliott on Railroads, (2 Ed.), sec. 1651, as follows: "The liability of the company as a common carrier begins, as a rule, at the time the baggage is delivered to it for transportation, unless the time of such delivery be an unreasonable length of time before the owner's intended departure. In order that the liability as a common carrier should exist, it is not always necessary that the passenger should have purchased a ticket, nor that he should even make the journey which he intends to make. As persons often become entitled to the rights of passengers before the purchase of a ticket, so the liability of a carrier for baggage sometimes begins before the purchase of a ticket, or even before the company becomes liable to the owner of the baggage as a passenger. Where a person in good faith intends to take passage on a railway train, or the like, and delivers his baggage to the company a reasonable time in advance of the anticipated journey, it seems that the company will be liable for such baggage as a common carrier from the time of such delivery and acceptance. And in such cases the company may be liable, although the person does not purchase a ticket or make the proposed journey, as, for instance, where he is prevented from so doing by the fault of the carrier and the loss or destruction of the baggage before the journey begins," and well-considered decisions are in support of the statement. Hickock v. R. R.,31 Conn. 281; Mfg. Co. v. Ullman, 89 Ill. 244; R. R. v. R. R.,104 Ind. 293; Ins. Co. v. R. R., 144 N.Y. 200; Woods v. Devin, 13 Ill. 747. And, as relevant to the question more directly involved (274) in this position, Hickock v. R. R., supra, holds as follows: "A railroad company is presumed to receive baggage for transportation and not for storage, and its liability commences as soon as the baggage is delivered to and is received by the agent, notwithstanding the fact that it was not checked at the time it was received and would not be for several hours, nor until fifteen minutes before the train started, and that the passenger was so informed.
"2. Delivery or nondelivery of check for baggage is of no importance as affecting the liability of the carrier, it being merely in the nature of a receipt and intended as evidence of the ownership and identity of the baggage, and this is the rule generally obtaining in the absence
of some specific and reasonable regulation restrictive of its liability."
As the cause goes back for a new hearing, we consider it well to advert to another exception insisted on for plaintiff, that his Honor charged the jury, as requested by defendant, as follows: "If the jury find from the evidence that the plaintiff, Susie E. Williams, purchased a ticket over the defendant's line from Charlotte to Statesville, on Saturday morning, and on the following Sunday evening sent a trunk to the depot, giving no instructions for shipment and no instructions for it to be checked, and did not intend for the same to be checked until the following morning, then the company, even if it received the trunk for storage, was merely a gratuitous bailee and liable only for its gross negligence. There being no evidence that the trunk was lost by the gross negligence of the defendant company, the jury will answer the fourth issue, `Nothing.'"
As heretofore stated, if the trunk was delivered and accepted by the company in the afternoon for transportation on the following morning, and it was customary to receive baggage for transportation in that way, in the absence of some reasonable regulations restrictive of the company's liability they would take as common carriers and could be held as insurers in case the trunk is lost; but if no such custom existed and the trunk was only received for storage for one (275) intending to become a passenger, and until he claims the trunk and has the same checked, in such case the company is ordinarily regarded as bailee for hire and is responsible for ordinary care. It is the same rule of responsibility obtaining where baggage reaches its destination and is not called for in a reasonable time. After such time the carrier holds the baggage as warehouseman and is responsible for lack of ordinary care. Elliott on Railroads, secs. 1463-1533. In making this charge, the court was no doubt influenced to some extent by expressions in the opinion in Kindley v. R. R., 151 N.C. 207, to the effect that in certain aspects of that case the defendant company was a gratuitous bailee, and as such responsible only for gross negligence. But the statement of the law and expressions referred to must be considered and construed in reference to the facts presented and in view of the rights there involved. In Kindley's case a passenger took the train at Fayetteville, N.C. intending to go through to Charlotte, the route lying over the Atlantic Coast Line to Maxton and over the Seaboard from Maxton to Charlotte. At Maxton the passenger determined to return to Fayetteville and notified the Coast Line conductor of such intent, with a request that the baggage be also returned. The trunk was carried on to Charlotte and when it was returned to the owner, some time thereafter, it was found to have been entered and some of the contents stolen. The appeal involved only the liability of the
second carrier, and the decision in Kindley's case was placed on the ground that the intended passenger had never become such in reference to the second or connecting carrier, and that nothing had ever been paid or tendered such carrier, either for carrying the passenger or storing the trunk, and in that view only the second carrier considered and dealt with as gratuitous bailee. In Kindley's case, too, weight was given to the language of the statute bearing on the subject (section 2624), which makes carriers responsible "for baggage of passengers from whom they have received fare." The principle, however, does not apply to the facts presented here, in any aspect of them, for if it should be established under proper ruling that until the trunk was claimed and checked for baggage it was held for storage only and not for immediate transportation, as heretofore explained, on authority, the company is chargeable as bailee for hire and responsible (276) for ordinary care. If received and held, either as common carrier or warehouseman, on failure to deliver, the burden is on defendant to render legal excuse for the failure. In Fetter on Carriers, at p. 1557, it is said: "With respect to baggage in possession of a railroad company as warehouseman, evidence that it failed to deliver the property to the owner, when demanded, prima facie, establishes negligence and want of due care, and the onus of accounting for the default lies with the carrier." There is error, which entitles plaintiff to a
New trial.
Cited: Barefoot v. Lee, 168 N.C. 90.