Lead Opinion

Gray, C.

It is doubtless true that, although the liability of a common carrier ceases upon the failure of the passenger to call for'baggage within a reasonable time after its arrival at the place of its destination, a modified liability, analogous to that of a warehouseman, continues. (Burnell v. The N. Y. Central Railroad Co., 45 N. Y., 184.) And this upon the ground that this modified obligation is incurred at the time of making the contract for the transportation of the passenger and baggage and is a part 'of the contract itself, and to remain in force for temporary convenience arising from such necessity, as sickness or accident, as will create the presumption that the occurrence which occasioned its being left was within the contemplation of the parties at the time of making the contract. (Id., 186, 188.) Hnless the plaintiff has brought her case within this rule she was- not entitled to recover. Her passenger ticket indicated her right to a passage to Palmyra; the check for her baggage indicated all that would be presumed from a contract to cari-y it to and safely deliver at that place. When she arrived there she was apprised by the station baggage-master, to whom she applied for permission to leave her baggage, that he was not allowed *556 to keep baggage with a check upon it; that she could not leave it, and he could not take it, without she gave up her checks; thus, in substance, apprising her that he was without power to continue in force the obligation of the defendant, indicated by the check, but that she could give up the check, leave the baggage, and it would be safe. She surrendered her check, and thus in effect admitted, not only the safe arrival but the delivery of her baggage; and accepted, instead of the obligation of the company, the agent’s assurance that it would, if she left it where it was, be perfectly safe. If this arrangement was one which she understood to be made by the agent in behalf of the company, for the storage of her baggage after its obligations to her as carrier was at an end, she was in error. There was no evidence tending to show that the agent had power, after the obligation of the company was thus at an end, to bind it by a new arrangement, by which the company should assume the responsibility of a warehouseman. On the contrary, such an arrangement was in clear repugnance to the regulations of the company at the time of the occurrence; which the learned judge regarded as a full defence to this action, unless it suffered the agent to make such arrangement, notwithstanding the regulations; and in submitting this question to the jury he clearly errfed; the case was without evidence to justify the submission of that question for their consideration. In the case of Dininny v. The New York and New Haven Railroad Co. (49 N. Y., 546) the arrangement to retain the baggage upon the surrender of the check was a necessity forced upon Dininny by the negligence and wrong act of the company ; and upon that ground he recovered. (Id., 550, 551.)

This judgment should be reversed.

Dissenting Opinion

Dwight, C.

(dissenting). The sole question to be considered in this case is, whether the goods at the time of the loss were in the custody of the defendant. It is immaterial in what character it held them, whether as carrier or warehouseman, or naked bailee. If it held them at all, it was bound to deliver them to the rightful owner or on his order. Even a *557 delivery on a forged order would have been no excuse. This rule prevails wholly irrespective of the question of negligence. It is an act of conversion. (Hall v. Boston and Worcester Railway, 14 Allen, 439; Duff v. Budd, 3 Brod. & B., 177; Ostrander v. Brown, 15 J. R., 39; Hawkins v. Hoffman, 6 Hill, 586.)

There is no question here as to the right to deliver in accordance with checks. These had been taken off with the assent of both parties. If the trunks were, when obtained by the wrong-doer, in the defendant’s custody or control, the only way in which they could cease to be in that control, or, in other words, in which the relation of bailor and bailee could be terminated, was by delivery. This would be true, even of the lowest kind of bailment, that- of bare finding. A bailment originates with delivery and must terminate in the same way. The burden of proof is on the defendant to show that the bailment is at an end. Non-production of the baggage is prima facie evidence of negligence. (Burnell v. New York Central Railroad Co., 45 N. Y., 184.)

The defendant claims that it performed its whole duty to the plaintiff!, when it placed her baggage at her disposal on the platform of the station and received her checks. The plaintiff answers to this, that the baggageman (Whipple) at the place of destination made an arrangement with her to keep the baggage for a few days while she visited a friend in the vicinity, and that he said that it would be perfectly safe if the checks were given up. On the other hand, it was claimed that the defendant had given verbal directions to its baggagemen not to store baggage at its risk. These, however, were not communicated to the plaintiff. ■ There was testimony to show that the station at Palmyra is one at which a large amount of business is done, and that the defendant has a baggage-room for storing such baggage as comes into their possession and is not taken away.

On the whole testimony, I do not think that' thexe was sufficient evidence to show a complete delivery by the defendant, so as to entirely sever the relation of bailor and bailee. *558 The strict relation of carrier and passenger was modified by the acts of the parties in accordance with the rule in Burnell v. New York Central Railroad Company (45 N. Y., 184). The defendant was liable in a character analogous to that of a warehouseman. If the plaintiff had gone away at once, after her arrival, leaving her trunks in the defendant’s possession, it would clearly have still held the character of bailee. When the plaintiff surrendered her checks, she did so only for the purpose of enabling the baggage-master to carry out his purpose of following what she supposed to be the defendant’s rule. If he had no authority to receive them for that purpose, it cannot fairly be considered that the plaintiff surrendered them. The defendant is in this dilemma: the baggageman had either the authority to store the baggage or he had not; if lie had, the defendant is clearly liable; if he had'not, then he had no power to receive the checks for the purpose of accomplishing an end beyond the scope of his authority, and the plaintiff had no final intent to deliver the checks. There was thus no intent on the one hand to surrender, and on the other to receive the baggage, which are essential elements in a delivery. An offer to deliver on the part of a carrier, unaccepted by the defendant, relieves him from his strict liability, but he is still liable as. bailee. (Young v. Smith, 3 Dana, 91; 2 Redf. on Railways [5th ed.], 48.) When liability has once attached by a delivery, the carrier remains liable until a full and complete redelivery at the place of destination. (Camden and Amboy Railway Co. v. Belknap, 21 Wend., 354.) These views would seem to be sufficient to dispose of the questions in the case, so far as raised on the motion for a nonsuit.

It is well, however, to go still further and inquire as to the effect of the special arrangements made by the plaintiff with the baggage-master. Undoubtedly the carrier may, by special notice ^Drought home to the passenger, limit the right of one of his agents to make special arrangements for keeping baggage, so as to continue his liability as carrier, or he may *559 be to entitle him to regard the whole bailment, with all its incidents, at an end. It is clear that, in the absence of .restrictions so communicated, the passenger may regard the person who handles and takes charge of the baggage, at the place of destination, as the agent of the company. (Ouimit v. Henshaw, 35 Vt., 605.) There are cases in which an arrangement, made with such an agent, for delay in delivery, will leave the earner subject to all his responsibilities. (Curtis v. Avon R. R., 49 Barb., 148.) Whether these facts justify such an arrangement, seems to be peculiarly a question for the jury..

There was also some evidence from the custom in the defendant’s business, the fact that it had a store-room, and that trunks were on store there, that it allowed the baggage-men to make special contracts for the retention of baggage.

Under all the facts of the case, none of the exceptions to the charge of the judge to the' jury are sustainable.

The case of Roth v. Buffalo and State Line R. R. Co. (34 N. Y., 548) 'is in no respect .opposed to these views. The sole question in that case was, whether the strict liability of the common carrier continued, after the lapse of a reasonable time subsequent to the arrival of the goods at the place of destination. In that case the goods were destroyed by fire, after such a time had elapsed, and without the carrier’s negligence, and it was held that the owner could not recover. The case concedes that the defendant in that case was still liable as warehouseman. It has nothing to do with facts like those in the case at bar, where the claim is simply that the' goods were in the custody of the carrier, in his character of bailee, at the time of the loss, and that he converted them to his own use, by wrongfully delivering them to a person having no authority from the owner to receive them. (Hall v. Boston and Worcester R. R., supra; Duff v. Budd, supra.)

The judgment should be affirmed.

For reversal, Lott, Ch. C., Gray and Reynolds, CC.

, For affirmance, Dwight and Earl, CC.

Judgment reversed.