94 case these would not be carried for the passenger's personal use." Thus it has been held that a carrier is not liable on the score of baggage for the loss of money of one passenger contained in a valise which another passenger, with the knowledge of the first, delivers as his own baggage, and the carrier receives as such. So where the plaintiff's servant goes on in advance, taking with him what might properly have been the master's baggage, it was held in Becher v. Great Eastern Ry. Co. that the carrier is not liable for its loss, if it was accepted as the baggage of the servant.95 If, however, the articles are personal to the passenger accompanying them and otherwise satisfy the definition of baggage as to him, it seems that these are none the less baggage by virtue of the fact that the passenger does not own the articles, but has only a special interest in them. Thus, as to the rod of the fisherman on a fishing trip, it would hardly be a defense to the carrier's liability for baggage that the rod was not owned by the fishing passenger, but that he had hired the use of the rod for the trip from another. The bailee of the rod could accordingly sue the carrier for loss of, or damage to, the rod, as to which the carrier owes to such bailee the full insuring liability on the score that the rod is a part of the bailee's baggage. Particularly is this true, for the owner of the rod could not claim this same responsibility, since he is not a passenger."7 93 Southern Kansas Ry. Co. v. Clark, 52 Kan. 398, 34 Pac. 1054; Stimson v. Connecticut River R. Co., 98 Mass. 83, 93 Am. Dec. 140; Gurney v. Grand Trunk R. Co. of Canada, 138 N. Y. 638, 34 N. E. 512; Pennsylvania R. Co. v. Knight, 58 N. J. Law, 287, 33 Atl. 845. 94 Dunlap v. International Steamboat Co., 98 Mass. 371. 95 BECHER v. GREAT EASTERN R. CO., L. R. 5 Q. B. (Eng.) 241, Dobie Cas. Bailments and Carriers, 372. 96 See dictum of Smith, L. J., in Meux v. Ry. Co. [1895] 2 Q. ́B. (Eng.) 387, 394. See, also, Illinois Cent. Ry. Co. v. Matthews, 114 Ky. 973, 72 S. W. 302, 60 L. R. A. 846, 102 Am. St. Rep. 316; PULLMAN PALACE-CAR CO. v. GAVIN, 93 Tenn. 53, 23 S. W. 70, 21 L. R. A. 298, 42 Am. St. Rep. 902, Dobie Cas. Bailments and Carriers, 294. 97 In Battle v. Columbia, Newberry & Laurens R. R., 70 S. C. 329, 49 S. E. 849, it was held that the father (who was not a passenger) was the proper party to sue the carrier for loss of the baggage of an infant child. On the same subject, see, also, the following cases, upholding the father's right to sue for loss or damage to the child's baggage: Baltimore Steam Packet Co. v. Smith, 23 Md. 402, 87 Am. Dec. 575; Withey v. Pere Marquette R. Co., 141 Mich. 412, 104 N. W. 773, 1 L. R. A. (N. S.) 352, 113 Am. St. Rep. 533, 7 Ann. Cas. 57; Richardson v. Louisville & N. R. Co., 85 Ala. 559, 5 South. 308, 2 L. R. A. 716. In Brick v. Atlantic Coast Line R. Co., 145 N. C. 203, 58 S. E. 1073, 122 Am. St. Rep. 440, 13 Ann. Cas. 328, it was held that the owner could sue the carrier, though the goods were not the baggage of the passenger traveling with them, holding the carrier liable as a gratuitous bailee only. In Meux v. Railway Co." plaintiff's footman bought a ticket and checked as his baggage a valise containing his fivery, which belonged to his mistress. She brought suit when the livery was injured by the carrier's carelessness. She was permitted to recover on the score that her property was lawfully in the custody of the carrier, the negligence of whose servants had injured it. There was no claim that the livery was the baggage of the plaintiff. Indeed, in his opinion granting her a recovery, Smith, L. J., took occasion to remark: "It did not render it any the less the luggage" of the footman because the property in the clothes remained in the plaintiff. Of this I am clear that, in the circumstances of the case, the footman who had taken the ticket could have sued the company either in contract or tort."1 In the Becher Case, supra, the articles tendered by the servant were the master's property, as to which the servant had no interest whatsoever, so that they were not technically the baggage of the servant. On that score as contrasted with the Meux Case, it was held there could be no recovery by the owner for the loss of these articles. PASSENGER ACCOMPANYING THE BAGGAGE 200. While baggage seems to be transported by the carrier on the presumption that the passenger accompanies it, even if he fails to do so, the carrier is still liable by the better opinion (though there is conflict) as an insurer. If the carrier consents to this arrangement, or if the baggage is not transported with the passenger owing to the fault of the carrier, then it is generally agreed that the full insuring liability attaches. The passenger cannot demand the transportation of his baggage unless he accompanies it. When, to the knowledge of the carrier, the passenger does not accompany it, the carrier, in the absence of an agreement to the contrary, transports the articles as a carrier of goods, and may charge freight for the transportation. 98 [1895] 2 Q. B. (Eng.) 387. This term is synonymous with baggage. 1 [1895] 2 Q. B. (Eng.) 393, 394. 2 BECHER V. GREAT EASTERN R. CO., L. R. 5 Q. B. (Eng.) 241, Dobie Jas. Bailments and Carriers, 372. Acceptance of Baggage by Carrier on Presumption that Passenger Accompanies It There is confusion rather than conflict in the books, due largely to a failure to analyze the real problem involved, on the general subject of the passenger's accompanying his baggage. The first case to be considered is when the owner of the baggage makes, as a passenger, the same journey as the baggage; but, though the carrier carries the baggage on the presumption that the owner accompanies it, the passenger and baggage fail to go together, without fault of the carrier. In this case the important element is that the carrier's contract, his acceptance, and his transportation seem to be based on the presumption that the passenger and baggage go together. This presumption, without fault of the carrier is not true, for the passenger does not accompany the baggage. It is then held by some courts that the carrier is liable not as an insurer for the baggage, but merely as a gratuitous bailee, liable only for failure to exercise even slight care. In such cases it is said that the handling of the baggage and the watch kept over it is on the basis that the passenger accompanies the baggage and that it might well be that the presence of the passenger, particularly in an emergency, ready to help in caring for his baggage may be of very real importance." Under modern methods of handling baggage, however, it is believed that the better rule is to hold the carrier liable as an insurer, even though the passenger does not accompany the baggage." Members of the same family, traveling together, may carry each other's effects.' And it has been held that where the plaintiff . Indeed, it is generally held that the passenger can ordinarily require that his baggage be carried on the same train with him. Runyan v. Central R. Co. of New Jersey, 61 N. J. Law, 537, 41 Atl. 367, 43 L. R. A. 284, 68 Am. St. Rep. 711; Conheim v. Chicago Great Western R. Co., 104 Minn. 312, 116 N. W. 581, 17 L. R. A. (N. S.) 1091, 124 Am. St. Rep. 623, 15 Ann. Cas. 389; Wald v. Pittsburg, C., C. & St. L. R. Co., 162 Ill. 545, 44 N. E. 888, 35 L. R. A. 356, 53 Am. St. Rep. 332. 4 Collins v. Boston & M. R., 10 Cush. (Mass.) 506. See, also, Wood v. Maine Cent. R. Co., 98 Me. 98, 56 Atl. 457, 99 Am. St. Rep. 339 (though here the passenger did not make the trip in the same way as the baggage). Collins v. Boston & M. R., 10 Cush. (Mass.) 506. 6 Moffat v. Long Island R. Co., 123 App. Div. 719, 107 N. Y. Supp. 1113; McKibbin v. Wisconsin Cent. R. Co., 100 Minn. 270, 110 N. W. 964, 8 L. R. A. (N. S.) 489, 117 Am. St. Rep. 689; LARNED v. CENTRAL R. CO. of NEW JERSEY, 81 N. J. Law, 571, 79 Atl. 289, Dobie Cas. Bailments and Carriers, 373; Logan v. Pontchartrain R. Co., 11 Rob. (La.) 24, 43 Am. Dec. 199; Adger v. Blue Ridge Ry., 71 S. C. 213, 50 S. E. 783, 110 Am. St. Rep. 568. 7 Dexter v. Syracuse, B. & N. Y. R. Co., 42 N. Y. 326, 1 Am. Rep. 527; Yazoo & M. V. R. Co. v. Baldwin, 113 Tenn. 205, 81 S. W. 599; Battle v. Columbia, Newberry & Laurens R. R., 70 S. C. 329, 49 S. E. 849; Brick v. Atlantic went on in advance, leaving his baggage to be brought seven days later by his wife, with her own baggage, the carrier was liable to plaintiff for its loss. Fault or Consent of Carrier If the fact that the baggage does not go with the passenger is due to the fault of the carrier, there is general agreement that the latter incurs the full insuring liability. Any other rule would operate to lessen the carrier's liability by his own wrong. If, therefore, the baggage goes on an earlier or later train than the passenger, on account of the negligent act of the servants of the carrier, the passenger can hold the latter fully responsible as an insurer. There is no duty resting on the passenger, after a proper delivery of his baggage to the carrier, to see that it is deposited in the conveyance by which he is to travel. Again, if the carrier consents to sending the baggage, as baggage and not as freight, on a train or boat other than the one that carries the passenger, the full liability attaches.10 The carrier, then, is bound by its consent to take the baggage as baggage, and cannot claim compensation, either, besides the regular fare for the transportation of the passenger.11 Transportation of Baggage as Freight When the carrier knowingly transports the baggage, which the passenger does not accompany, unless the carrier agrees to carry it as baggage, it is carried as freight. The carrier is then, as to such transportation, a carrier of goods, whose charges and liabilities are to be worked out on that basis.12 The fare paid by a passenger over a railroad is the compensation for his carriage, and for the transportation at the same time of such baggage as he may require for his personal convenience and necessity during his journey. Baggage subsequently forwarded by his direction, in the Coast Line R. Co., 145 N. C. 203, 58 S. E. 1073, 122 Am. St. Rep. 440, 13 Ann. Cas. 328. 8 Curtis v. Delaware, L. & W. R. Co., 74 N. Y. 116, 30 Am. Rep. 271. Toledo, St. L. & K. C. R. Co. v. Tapp, 6 Ind. App. 304, 33 N. E. 462. See, also, Wald v. Pittsburg, C., C. & St. L. R. Co., 162 Ill. 545, 44 N. E. 888, 35 L. R. A. 356, 53 Am. St. Rep. 332; Tewes v. North German Lloyd S. S. Co., 42 Misc. Rep. 148, 85 N. Y. Supp. 994; Southern R. Co. v. Foster, 7 Ala. App. 487, 60 South, 993. 10 Warner v. Burlington & M. R. R. Co., 22 Iowa, 166, 92 Am. Dec. 389. 11 Warner v. Burlington & M. R. R. Co., 22 Iowa, 166, 92 Am. Dec. 389. 12 Wilson v. Grand Trunk Ry. Co. of Canada, 57 Me. 138, 2 Am. Dec. 26; Graffam v. Boston & M. R. Co., 67 Me. 234; The Elvira Harbeck, 2 Blatchf. 336, Fed. Cas. No. 4,424; Wright v. Caldwell, 3 Mich. 51. absence of any special agreement of the carrier, or of negligence on its part, is liable, like any other article of merchandise, to the payment of the usual freight.18 PASSENGER'S CUSTODY OF THE BAGGAGE 201. (a) When the passenger retains in his possession, without notice to the carrier, articles which would not fall within the technical definition of baggage, even if delivered to the carrier, the carrier owes to the passenger, as to these articles, no affirmative degree of care whatsoever. (b) When articles which are properly baggage are delivered to the carrier, but which, for the convenience of the passenger, are carried in the stateroom or car with him, so he can have access to the articles, resulting in a mixed custody of passenger and carrier, the carrier is liable only for his negligence, or failure to exercise ordinary care. The English rule, favored by some of the American courts, however, holds the carrier in such cases liable as an insurer. (c) As to articles which would properly be baggage if delivered to the carrier, but which the passenger retains in or about his person with the intention of exercising complete custody over them, the carrier is not an insurer, but is liable only for his negligence, or failure to exercise ordinary care. In any case, the negligence of the passenger, contributing to the loss of, or injury to, the articles, is a complete defense to the carrier. In General In all the cases heretofore considered, it has been assumed that the baggage, or articles claimed to be such, had been delivered into the complete and exclusive custody of the carrier. In the present section the carrier's liability is discussed in connection with a more or less complete custody of the articles by the passenger himself. It has already been seen that common carriers of goods are liable as insurers only when the goods have been delivered into their exclusive custody.1 The question in the case of the passenger carrier most frequently arises in respect to baggage retained in the custody of the passenger, or at least carried in the same car or stateroom with him, and more or less under his supervision. On analysis, these cases will be found to fall into one of 18 See cases cited in preceding note. 14 See ante, p. 327. DOB.BAIIM.-42 |