BAGGAGE AGAIN.
Epistolary Model.--Dog lost.--Quitting a Moving Car.--When Liability
for Luggage commences.--Goods of Third Party.--Left in the
Car.--Baggage lost.--English Rule.--Limited Liability.--Personal
Luggage, what it is.--Watch.--Rings.--Pistol.- Railroad Porter.--Hotel
’Bus.--Tools and Pocket Pistols.--Fiddles and Merchandise.--Farewell.
MY DEAR WIFE,--
Your letter announcing your safe arrival at M----, if, indeed, you
can be said to have arrived safely, considering all that befell you,
made me happy this A. M. The tale of your disasters was really quite
amusing, and I have passed some of my lonely hours most agreeably
considering the law on the various points.
So poor Fox is gone; doubtless the mangled remains of that poor cur
lie stark and cold upon the railway line, and crows are gathering in
the leaden skies to assist at his funereal obsequies; or, perchance,
he may be gracing the board at some restaurant in the familiar form
of sausages. You say it appears that he slipped his head through the
noose of the string by which he was tied in the baggage car; if this be
so the baggage man might have seen that he was not securely fastened;
and it was his duty to lock him up, or otherwise keep him safely.[649]
Make out your bill, dearest, we’ll make the company pay. At what figure
do you value him? (I had, however, better add that in a late case
where a dog was fastened in the ordinary way, and there was nothing to
show that he was likely to escape, the carrier was held justified in
trusting to the owner having properly secured the animal.)[650]
Poor Miss Smith ought to have been more careful when she would insist
upon going into the car to bid you a last adieu, even though her young
man was waiting for her. She most certainly should not have attempted
to leave the carriage after it was in motion, and when the conductor
warned her not. Even if the conductor was to blame in negligently
starting the train without the usual premonitory screech, and the
unnecessary jerk assisted in the catastrophe, the company was not
responsible; her conduct was the mere outcome of that perverseness
which is the characteristic trait of the feminine nature.[651]
You never told me that Eliza Jane had taken her trunk to the station
some half dozen hours before the train was to start; it was rather
verdant of her so to do. I presume the desire to have a quiet drive
with her John was the motive. The loss of her finery will teach her a
lesson; however, it will not really matter, as she can recover the
value of her “things,” for the responsibility of the company as common
carriers attaches as soon as their servants receive the baggage of
the traveller at the proper place; and the giving of the check does
not control the time of the responsibility attaching.[652] One is a
passenger, and entitled to sue for damages sustained, the moment he
mounts the bus (run by the company) on his way to the station.[653]
But where an intending passenger, fifteen minutes before the train was
to start, entered a car at the terminus, left his valise on a vacant
seat and went out; and on his return shortly afterwards his baggage
was gone; as he did not show that there was any one in charge of the
train or any other passenger on board, the court would not hold the
company liable.[654] The fact that you took and paid for her ticket
will not prevent E. J. maintaining an action for her loss,[655] for
it makes no difference whether a passenger pays her own fare, or some
one else kindly does it for her.[656] In fact, if one is travelling
on a free pass by which the company stipulates to be excused from all
loss or damage, still they are responsible for the wilful or careless
misconduct of their servants.[657]
But, unfortunately, I fear that you must quietly submit to the loss of
those things of yours which she had in her trunk, for the contract to
carry was with her alone; the company thought that the trunk contained
her luggage; if they had been told that it was not they might have
objected to carry, considering the Saratogas you had, not to speak of
bandboxes, bundles, and parcels; and even if you had had no luggage
yourself, it would have been all the same;[658] and as they were not
Eliza Jane’s I don’t suppose she can sue for them either.
And so that pretty dressing-case which I gave you on that memorable
day when we twain became one flesh, is gone! you say that you put it
under your seat in the car, and that it must have been left there when
the porter carried your traps to the cab at your journey’s end; well,
I cannot say that placing it where you did was a very wise thing,
still as another lady who once did the same in England recovered the
value of her dressing-case (although she failed to recover the case
itself),[659] so doubtless if money will dry your tears for the loss
of that memento of our wedding-day, you will be consoled. Probably
the fact of your name and address not being on it will not affect
your rights in the matter.[660] A railway company is liable for the
loss of a passenger’s luggage though carried in the carriage in
which he himself is travelling.[661] Very special circumstances, and
circumstances leading irresistibly to the conclusion that the traveller
takes such personal control and charge of his luggage as altogether to
give up all hold upon the company, are required before a court will
say that the company as common carriers are not liable in the event
of a loss.[662] Even if luggage is never given to a railroad servant
but kept by the passenger in his own possession, still in the eye of
the law it is considered to be in the custody of the company, so as
to render them responsible for the loss.[663] In England, a railway
company that receives goods or luggage, and books it for a certain
place beyond the terminus of its road (unless it specially stipulates
to be exempt for whatever happens on other lines), is responsible for
any evil that befalls it before its arrival at its journey’s end, even
though it happens while the goods are passing over the rails of another
company;[664] in fact one has no remedy except against the company with
whom the contract is made. But the justice and soundness of the English
decisions have been seriously questioned by the American courts, who
think that the carrier is only liable for the extent of his own route,
and for safe storage, and safe delivery to the next carrier.[665] Many
cases, however, follow the English ones, and others hold that the
responsibility is only _primâ facie_, and may be controlled by general
usage among carriers, whether such usage be known to the traveller
or not.[666] (But this subject is so mixed that I will show you what
Judge Redfield says when you get back again.)[667] Where different
railways--forming a continuous line--run their cars over the whole line
and sell tickets for the whole route, checking baggage through, an
action lies against any company for the loss of baggage.[668]
Of course if there was any notice on your ticket limiting the liability
of the company with regard to your traps, you are bound thereby,
even if you never read it;[669] for railway companies, as well as
other carriers, may limit their responsibility by special contract
of which notice is given to the passenger or owner, and to which he
assents or does not object, subject to such exception, limitation, or
qualification as reason and justice may require and a judge and jury
decide with reference to each particular case.[670]
I don’t exactly know what you had in that dressing-case of yours,
but the rule is, “that whatever a passenger takes with him for his
own personal care and convenience, or even for his instruction and
amusement,[671] according to the habits or wants of the particular
class to which he belongs, either with reference to the immediate
necessities or the ultimate purpose of the journey, must be considered
as personal luggage,” for the loss of which the carrier is liable;[672]
and articles of jewelry, such as a lady usually wears, are considered
personal luggage.[673] So is a watch;[674] though in Tennessee a
watch was not deemed a proper part of necessary baggage.[675] Where
was yours? So are finger rings.[676] In one case a man was allowed
to have two gold chains, two gold rings, a locket and a silver
pencil-case;[677] so I will leave you to calculate how many a lady
should be allowed to carry about with her. Your swell gold spectacles
would also come within the category;[678] and by the way, that linen
which you bought for my new shirt fronts would be included[679] (if you
were good enough to take it with you to make them up, and unfortunate
enough to lose it); and that little present you were taking for your
sister--perhaps.[680] I don’t know what else you had in that case which
will now know its place on our dressing table no more forever. Of
course, your brushes, razors--_pardonnez moi, madame_, I forgot to whom
I was writing--pen and ink, etc., are fairly baggage within the meaning
of the term.[681]
Not content with the abandonment of your dressing-case, you say you
lost a bandbox by stupidly letting a porter carry it for you to a
cab, which you could not afterwards find: well, if it is the custom
on that line for the company’s porters to assist passengers to obtain
cabs, within the station grounds, and place their baggage therein, the
company will be liable for this loss also. This my old friend Butcher
satisfactorily established: he had a carpet-bag with him containing a
large sum of money, and this he wisely kept in his own possession while
journeying up to London. On arriving at the station there, however, he
unwisely--even Jove sometimes nods--let a porter take it from him for
the purpose of securing a cab. The porter put the bag in a fly and then
returned to the platform to get my friend’s other luggage. Meanwhile
cabby disappeared and the bag and all that was therein was lost. The
court considered the company liable, as there had been a delivery of
the bag to them to be carried, and no re-delivery to Butcher.[682]
Where baggage has been lost, the owner may recover all reasonable
expenses incurred in his hunt after it, such as telegraphing, cab-hire,
etc.: but his loss of time is a dead loss.[683]
Your next misfortune was the loss of that new book I gave you,
wherewith to beguile the weariness of the way; you say you left it in
the omnibus that took you up to the hotel; well, omnibus drivers who
take passengers from the stations about the towns are unquestionably
responsible as common carriers.[684] Although in England it has been
held that a cab-driver or hackney-coachman was not;[685] still they
are bound to use an ordinary degree of care. If the hotel proprietor
undertakes to provide free transit to and from the cars, and you lost
your book in his ’bus, he is liable.[686]
Although it deeply pains me to find the slightest fault with my
spouse, still I must say that I think that you have been a little
careless during this trip; in fact you have shown that the character
your mother gave you was not quite a libel, when she said that you
would lose your head were it not securely fastened on, and your tongue
were it not in incessant use.
While I am writing to you in this strain, I may as well give you a
little further information concerning what you may, and what you may
not, carry as personal baggage; though doubtless you will soon forget
all that I say, or if not,--at all events,--will not heed it, such is
the forgetfulness and perverseness of that sex whose love, as Prince
Charles Edward said, “is writ on water, whose faith is traced on sand.”
Besides what I have already mentioned, if you are a sportsman you may
take a gun, if a disciple of the gentle Izaak Walton, the necessary
_instrumenta bella_;[687] if you are a joiner--I don’t mean a
parson--you may take a reasonable amount of tools with your clothes,[2]
although perhaps you can’t;[3] for in Pennsylvania a carpenter was
permitted to carry a reasonable amount of his tools with him,[688]
while in Ontario a brother of the same craft was not;[689] the judge
thinking that a blacksmith might just as reasonably expect to carry
his forge, or a farmer his plough, as part of his baggage. You may
take new clothing and materials for yourself and family, though not
for others;[690] if you are of a nervous disposition and desire to
defend yourself against thieves and robbers, you may take a pocket
pistol,--don’t suppose I mean a brandy flask,--if you are a bellicose
man of honor a couple of duelling pistols will be allowed,[691] or
even a gun,[692] although in Maryland, one was not allowed to take
a colt.[693] A theatre goer may take an opera glass;[694] a student
on his way to college, manuscripts necessary for the prosecution of
his studies;[695] but an artist cannot carry his pencil sketches as
luggage in England;[696] although Cockburn, C. J., thought he could,
and his easel as well.[697] J. Wilson, in a Canadian case, thought that
one musically inclined might take a concertina, or a flute, or that
instrument in the playing of which a western writer says “the resined
hair of the noble horse travels merrily over the intestines of the
agile cat;”[698] but fortunately for mankind in general the majority of
the court held otherwise.
You cannot carry merchandise, either in England,[699] the United
States,[700] or the Dominion of Canada,[701] unless, indeed, it is
carried openly, or so packed that the carrier can see what it is and
does not object to it; nor samples, if you belong to the confraternity
of commercial travellers;[702] nor can a banker take money as
such;[703] nor can one carry silver spoons, nor surgical instruments,
unless he is a disciple of Galen and Hippocrates;[704] nor boxes of
jewelry for sale;[705] nor silver-ware;[706] nor the regalia and jewels
of a society;[707] nor a sewing-machine;[708] and it is beyond a
peradventure that if a carrier accepts a trunk, or baggage, containing
such tabooed articles, without knowledge of such contents, he incurs no
liability.[705] If he is deceived into taking it, he is not bound to
carry it safely.[709]
But really, my dear, I must draw these remarks to a close, as the
parsons say in their sermons. You cannot complain that this letter is
too short. There are several items of news--of babies born, brides
be-wed, bodies buried,--and such like trivialities, of which I might
have told you; but as you spoke about your losses I concluded that I
would send you an instructive note, and let vain trifles rest quiescent
until your return.
Though you may think that this epistle smacks somewhat of business, yet
please reflect that you are my sleeping partner, and spend the greater
portion of the profits of my office, and so ’tis becoming that you
should be slightly acquainted with legal matters, especially as you are
the daughter of my mother-in-law.
Adu! adu! O reservoir!
Your
SPANISH GRANDEE.
FOOTNOTES:
[649] Stuart _v._ Crawley, 2 Stark, 324.
[650] Richardson _v._ Northeastern Rw., L. R., 7 C. P. 75, note.
[651] Lucas _v._ Taunton & New Bedford Rw., 6 Gray, 64.
[652] Camden & Amboy Rw. _v._ Belknap, 21 Wendell, 354; Hickox _v._
Naugatuck Rw., 31 Conn. 281.
[653] Buffet _v._ Troy Rw., 40 N. Y. 168.
[654] Kerr _v._ G. T. R., 24 C. P. (Ont.), 209.
[655] Marshall _v._ York, N., & B. Rw., 11 C. B., 655.
[656] Van Horn _v._ Kermit, 4 E. D. Smith, 453.
[657] Mobile & Ohio Rw. _v._ Hopkins, 41 Ala. 486.
[658] Becher _v._ G. E. Rw., L. R., 5 Q. B. 241.
[659] Richards _v._ London, B., & S. C. Rw., 7 C. B. 839.
[660] Campbell _v._ Caledonian Rw., 14 Ct. of Sess. Cas. 2 Ser. 806; 1
S. M. & P. 742.
[661] Le Conteur _v._ London & S. W. Rw., L. R., 1 Q. B. 54.
[662] Ibid.
[663] Great Northern Rw. _v._ Shepherd, 8 Ex. 30; but see Tower _v._
Utica & Sch. Rw., 7 Hill, N. Y. 47.
[664] Muschamp _v._ Lancaster & Preston Junction Rw., 8 M. & W. 421;
Watson _v._ Ambergate, N. & B. Rw., 15 Jur. 448; Bristol & Ex. Rw. _v._
Collins, 7 House Lords Cas. 194. The same rule applies in Canada, Smith
_v._ G. T. Rw., 35 U. C. Q. B. 547.
[665] Farmers’ & Mechanics’ Bank _v._ Champlain Trans. Co., 16 Vt. 52;
18 Vt. 131; 23 Vt. 186; Van Santvoord _v._ St. John, 6 Hill, N. Y. 158.
[666] Southern Express Co. _v._ Shea, 38 Ga. 519; Cincinnati, etc., Rw.
_v._ Pontius, 19 Ohio (N. S.), 221.
[667] Redfield on Railways, vol. ii., p. 126, _et seq._
[668] Hart _v._ Rensselaer & Saratoga Rw., 4 Seld. 37.
[669] Zunz _v._ South-eastern Rw., L. R., 4 Q. B. 539; but see Kent
_v._ Midland Rw. Co., L. R., 10 Q. B. 1; Henderson _v._ Stevenson, L.
R., 2 S. & D. 470.
[670] Carr _v._ Lancashire & York Rw., 7 Ex. 707; Redfield on Railways,
vol. ii., p. 101. Where the condition on ticket was “that the company
does not hold itself responsible for any delay, detention, or other
loss arising off its lines,” and the baggage was never delivered to any
other company, held that meaning of last words was “out of the custody
of the company.” Kent _v._ Midland Rw., L. R., 10 Q. B. 1.
[671] Hawkins _v._ Hoffman, 6 Hill, 586.
[672] Cockburn, C. J., in Macrow _v._ Great Western Rw., L. R., 6 Q. B.
622; Great Northern Rw. _v._ Shepherd, 8 Ex. 38.
[673] Brooke _v._ Pickwick, 4 Bing. 218; McGill _v._ Rowand, 3 Penn.
St. 451.
[674] Jones _v._ Voorhees, 10 Ohio, 145; Miss. C. Rw. _v._ Kennedy, 41
Miss. 471.
[675] Bomer _v._ Maxwell, 9 Humphrey, 621.
[676] McCormick _v._ Hudson River Rw., 4 E. D. Smith, 181.
[677] Bruty _v._ Grand Trunk Rw., 32 U. C. Q. B. 66.
[678] _Re_ H. M. Wright, Newberry Admiralty, 494.
[679] Duffy _v._ Thompson, 4 E. D. Smith, 178.
[680] Great Western Rw. _v._ Shepherd, 8 Ex. 38; but see Bell _v._
Drew, 4 E. D. Smith, 59.
[681] Hawkins _v._ Hoffman, 6 Hill, N. Y. Rep. 589.
[682] Butcher _v._ London & S. W. Rw., 16 C. B. 13.
[683] Morrison _v._ E. & N. A. Rw., 2 Pugsley’s Rep. No. 3, p. 295.
[684] Peixotti _v._ McLaughlin, 1 Strob. 468.
[685] Brind _v._ Dale, 8 C. & P. 207; Ross _v._ Hill, 2 C. B. 887.
[686] Dickinson _v._ Winchester, 4 Cush. 115.
[687] Macrow _v._ Great Western Rw., L. R., 6 Q. B. 622; Hawkins _v._
Hoffman, 6 Hill, N. Y. Rep. 589.
[688] Porter _v._ Hildebrand, 14 Penn. St. 129.
[689] Bruty _v._ Grand Trunk Rw., 32 U. C. Q. B. 66.
[690] Dexter _v._ S. B. & N. Y. Rw., 42 N. Y. 326.
[691] Woods _v._ Devon, 13 Ill. 746; Bruty _v._ G. T. Rw. 32 U. C. Q.
B. 66.
[692] Davis _v._ Cayuga & S. Rw., 10 How. Prac. 330.
[693] Giles _v._ Fauntleroy, 13 Md. 126.
[694] Toledo & Wabash Rw. _v._ Hammond, 33 Ind. 379.
[695] Hopkins _v._ Westcott, 7 Am. Law Reg. (N. S.), 533.
[696] Mytton _v._ Midland Rw., 4 H. & N. 615; Morritt _v._ N. E. R., L.
R., 1 Q. B. D. 302.
[697] Macrow _v._ Great Western Rw., L. R., 6 Q. B. 622.
[698] Bruty _v._ Grand Trunk Rw., 32 U. C. Q. B. 66.
[699] Great Western Rw. _v._ Shepherd, 8 Ex. 30; Macrow _v._ Great
Western Rw., L. R., 6 Q. B. 616.
[700] Pardee _v._ Drew, 25 Wend. 459; Collins _v._ Boston & Maine Rw.,
10 Cush. 506.
[701] Shaw _v._ Grand Trunk Rw., 7 U. C. C. P. 493.
[702] Cahill _v._ London & N. W. Rw., 13 C. B. (N. S.), 818; Belfast B.
L. & C. Rw. _v._ Keys, 9 House Lords Cas. 556; Hawkins _v._ Hoffman, 6
Hill, 586; Dibble _v._ Brown, 12 Ga. 217.
[703] Phelps _v._ London & N. W. Rw., 19 C. B. (N. S.), 321.
[704] Giles _v._ Fauntleroy, 13 Md. 126.
[705] Richards _v._ Wescott, 2 Bosw. 589.
[706] Bell _v._ Drew, 4 E. D. Smith, 59.
[707] Nevins _v._ Bay State S. B. Co., 4 Bosw. 225.
[708] Bruty _v._ Grand Trunk Rw., 32 U. C. Q. B. 66.
[709] Sleat _v._ Fagg, 5 B. & Al. 342.