Stanfield v. Frank Parmelee Co. , 1921 Ill. App. LEXIS 237 ( 1921 )

Mr. Justice Taylor, delivered

the opinion of the court.

The plaintiff, having checked a trunk" with the < defendant, Frank Parmelee Company, for transfer and • delivery from the Polk street station to the St. George Hotel, Chicago, and the defendant having failed to deliver the trunk and its contents, brought suit and recovered judgment in the sum of $1,055.75. This appeal is taken therefrom.

The evidence shows substantially the following: On September 28, 1918, the plaintiff, Alice 'A. Stan-field, left Kansas City for Chicago on the Santa Fe Railroad; that she purchased her ticket at the station at Kansas City and there checked a wardrobe trunk to Chicago. At the time she checked the trunk, she paid $1.60 as a charg’e for excess weight and received a receipt from the railroad for the trunk. She arrived in Chicago Sunday morning, September 29, 1918, and gave her trunk check to one Marks, who was at the station to meet her. She waited at the station until she saw that her trunk had arrived. The next day Marks took her check for her trunk and delivered it to Parmelee’s agent at the Englewood station at 63rd street and received in return a cardboard check. He instructed the agent to deliver the trunk at the St. George Hotel, 60th street and Blackstone avenue. Several times during the ensuing week Marks called up the office of the defendant to find out why the trunk had not been delivered and was informed by Barrett, the manager, that it was probably misplaced and “would probably be delivered the following day.” When Marks delivered the Santa Fe trunk check to the agent of the Parmelee Company he told the agent that it represented a trunk, told him where to deliver it, but nothing was said about its contents. It is admitted that the trunk was received by the defendant company and was lost or stolen and never delivered to the plaintiff.

The check given by the defendant for the trunk contained on its face the following: “Frank Parmelee Co. (The authorized transfer co.) Telephones Wabash 1914. Notice to Passengers. Claim Your Baggage. At Re-Check before Boarding Train. Series 63, 7-14-00. ’ ’ And on the back contained the following:

‘ ‘ Contract—Receipt.

“This check is given as a receipt for the article of baggage offered by the recipient hereof, for transportation by Frank Parmelee Company, upon the representation, express or implied, and the understanding that said article of baggage does not exceed $100.00 in value and-contains no other property than such personal effects known as passengers’ ordinary railroad baggage, and if any other property is therein contained, or comes therewith into the possession of said company, its liability therefqr shall be limited to that Of involuntary bailee, being for willful negligence only.

Frank Parmelee Company,

Main office, 111 W. Adams St., Chicago.”

The business of the defendant company was the transfer of passengers and the transfer of trunks, without passengers, from place to place within the City of Chicago for compensation. Barrett, the general baggage, agent and general manager of the defendant, testified that the business of the defendant is “the transportation of passengers and baggage” from place to place in Chicago; that it transfers boxes if they contain baggage; that its business is confined exclusively to Chicago. The charter of the defendant was not put in evidence.

The plaintiff is a woman accustomed to living well and accustomed to the possession of expensive things in the way of a wardrobe, and as regards all matters of personal property that pertain to personal comfort and dress.. She was a singer of some note. Her husband was a judge. She had recently been divorced from her husband, for his fault, and was coming to Chicago, with the intention of giving up her former residence in Kansas City. In the trunk in question she packed practically all her personal belongings. The trunk in question was the largest size wardrobe trunk, made of black fibre, bearing the initials W. S. S., for which the plaintiff paid $125 at a store in Kansas City in 1917. The contents of the trunk and the value of each item are set forth in detail in the testimony of the plaintiff. The articles were as follows: two-piece suit, medallion coat, two evening gowns, three lace dresses, silk suit, serge suit, white silk corded suit, three linen dresses, one white satin skirt, one linen skirt, one cream serge skirt, four waists, eighteen pair silk hose, thirty handkerchiefs, four pair long gloves, four pair kid gloves, three silk vests, two silk chemises, three camisoles, three pair silk bloomers, three silk petticoats, "jersey sweater, Spanish silk shawl, Spanish lace scarf, gold silk embr. scarf, pink embr. scarf, three filet lace table centers, guest pillow cover, filet lace madeira and filet lace collar and cuffs, odd handmade laces, evening slippers, five hats, paradise bird, three pair shoes, French plumes, man’s umbrella, one medal—gift from King Edward, twelve towels, waist silk, curios, paper knife and scissors, neck piece and muff, one solid gold mesh bag, one gold card case, one doz. large linen dinner napkins, one-half' doz. embr. tea napkins, one large linen table cloth, two silk night dresses, two pair spats, one blue serge suit, one ladies ’ watch, one lorgnette chain, man’s watch, one bar pin with diamonds and sapphires, one diamond locket.

Two witnesses were called on behalf of the plaintiff, each of whom testified concerning the market value of various portions of the contents of the trunk. The defendant called a witness on that subject, one Lebovitz, who had been in the ladies’ wearing apparel business. According to the testimony of the plaintiff, added to and corroborated in a large part by the witnesses Saxe and Bachelder, the market value of the contents of the trunk was $7,507.

Certain propositions of law were submitted, some of which were held and some refused. Among the propositions held was one to the effect that “a common carrier of passengers and baggage, as in this case is shown by the evidence, can only be held liable for the loss of baggage and that baggage consists of such articles of necessity and convenience as are usually carried by passengers for their personal use, comfort, instruction, amusement or protection, whilst away from home on a journey, considering their status in life, and that it does not extend to merchandise, jewelry or other articles which are designed for different purposes, and that regard may, with propriety, be had to the objeet and length of the journey and the habits and condition in life of the parties.” The judgment in the sum of $1,055.75, which was entered, was the equivalent of what the trial judge considered to be the market value of the “baggage,” that is, such of the contents of the trunk as were in his judgment appropriate to her journey.

Errors and cross errors were assigned. It is contended by counsel for the defendant' (1) that the plaintiff’s concealment of the contents and of the value thereof was such fraud as to preclude her from recovery; (2) that" the contents of the trunk were not baggage; (3) that there was no lawful evidence before the trial court upon which any damages could be allowed; and (4) that under no circumstances would she be entitled to recover in excess of $100.

On the other hand, it is contended by counsel for the plaintiff that the trial court erred in confining the plaintiff’s recovery, as a matter of law, to “baggage” only, instead of permitting recovery for the loss of the trunk and of its entire contents.

The crucial question in the case is whether the defendant is entitled under the law to restrict'its liability to the value of those particular things contained in the trunk which, in matters pertaining to railroad transportation particularly, are considered baggage.

Apparently the earliest case in this State involving the liability of a transfer company for lost baggage is that of Parmelee v. Fischer, 22 Ill. 212. In that case Parmelee had received and undertaken to deliver for Fischer a large chest containing certain wearing apparel and also a variety of articles such as, two new feather beds and pillows, ten yards of muslin de laine, one oilcloth table cover, one new double-barreled gun and one set of common dishes, from one depot to another in Chicago. Upon the trial of the case the court instructed the jury as follows: “If the jury find for the plaintiff, they will assess the damages for such articles of necessity and convenience as are usually carried by passengers for their personal use and comfort, instruction or amusement or protection, having regard to the object and length of the journey.” That instruction the Supreme Court sanctioned as the law of the case and cited Woods v. Devin, 13 Ill. 746, and Davis v. Michigan Southern & N. I. R. Co., 22 Ill. 278. Although in the Woods case the suit was by a passenger against the owner of a steamboat who had contracted to carry the passenger and his baggage, and in the Davis case the plaintiff was a passenger who brought suit against the defendant railroad company for lost baggage.

Subsequently, in Parmelee v. Lowitz, 74 Ill. 116, the Supreme Court seems definitely to have announced the law applicable to the instant case.

There Frank Parmelee or one of his agents received from a passenger on the Pittsburg, Ft. Wayne & Chicago Railroad while coming to Chicago, a check for the passenger’s trunk, in order that the trunk might be carried for hire from the station to his residence. When, however, the trunk was delivered it was found that part of its contents—certain silks in the piece purchased for plaintiff’s wife and daughter—had been abstracted, and suit was brought for the value of all the articles lost, including $111 for the silks in the piece. The court held that Frank Parmelee was a common carrier of goods and that the law required him to safely carry and deliver the trunk and its contents to the owner “unless prevented by the act of G-od or the public enemies.” As to the contention in that case, that certain things in the trunk were not “baggage” such as is ordinarily carried by passengers— referring to the silks in the piece—the court held that, as the owner of the trunk was not a passenger with Parmelee, and had no contract with him for fare or transportation, “The relation between carrier and passenger did not arise or exist between them,” and further that, “When the trunk was received, no inquiry was made by appellant',as to its contents, and so far as his liability was concerned, it was of no importance whether it contained baggage or merchandise.”

Two cases in different divisions of this court may be looked upon as somewhat inconsistent with the Lowitz case, supra. They are Cleland v. Frank Parmelee Co., 212 Ill. App. 651 (abst.) and Morrison v. Parmelee Company, 222 Ill. App. 90. In the Cleland case the court held that where a box, which had been packed with wearing apparel, some kitchen utensils and household articles and contained some jewelry, consisting of rings, and which was checked as baggage by the owner as a passenger from Iowa to Chicago over the Rock Island Railroad, and then was turned over by the owner to the Parmelee Company with instructions to deliver the box to the owner’s residence, she was not entitled to recover for the jewelry on the ground that there was on her part, in tendering the box containing jewelry for transportation, a fraud in fact. The court in that" case considered the facts as coming within some exception to the rule laid down in the Lowitz case, supra. It would seem, however, as if the Lowitz ease, involving silks in the piece, which admittedly are not “baggage” and concerning which Lowitz remained silent when he checked his trunk, justifies no such exception.

In the Morrison case, supra, although the trunk concerning which the question arose was checked by a wdfe and contained wearing apparel of her husband, the court held that as the amount of the judgment was not greater than the value of the trunk and her wearing apparel alone, which it contained, the judgment should stand; but stated in effect that all the wearing apparel in the trunk was “baggage. ’ ’ Just how a husband’s wearing apparel when transported in a trunk, checked by a wife on her railroad ticket, may be considered to be “baggage,” it is difficult to understand. It is true that the Morrison case, supra, seems to hold, by implication at least, that under such circumstances a recovery is allowed for “baggage” only, yet, as the value óf the actual “baggage” in that case equaled the amount of the judgment, it made no difference in the determination of the court whether the contents of the trunk were considered as “baggage” or as ordinary merchandise or freight.

The word “baggage,” it will be seen, has two connotations. It means one thing when used to describe articles transported in a trunk by a railroad as an incident to the transportation of their owner, and another thing when used to describe articles transported in a trunk or box or other receptacle unrelated to the transportation of their owner, by a transfer company for a specified compensation. The latter is simply a contract to transfer goods for a charge for that service, the former is a contract to carry a passenger for a fare, and as an incident transport a reasonable amount of travel-necessities and personal conveniences. It follows, therefore, that though the nature of the articles determines the liability of a railroad, it does not that of a transfer company such as the defendant.

The law is otherwise in New York (Nathan v. Woolverton, 69 N. Y. Misc. 425, 127 N. Y. Supp. 442), where it is held that a transfer company “cannot be held liable for the loss of merchandise carried in the trunk of a shipper of which the carrier had no knowledge.” There it is considered the duty of the owner to inform the transfer company, while in this State, according to the Lowitz case, there is no such obligation on the owner. The latter rule seems to be the more reasonable for it may well be assumed that travelers, generally, are not familiar with the nice distinction between railroad baggage on the .one hand and ordinary baggage on the other, whereas the transfer company, conducting its business as a common carrier for private profit and fixing its own charges for its services, if desirous of complete knowledge in order to limit its " liability and determine the necessity for making’ an extra charge, may properly inquire of the owner to any extent it sees fit as to the nature of the property offered for transfer, and then, with its eyes open, act in the matter.

If, as in the Lowitz case, supra, a transfer company may be held liable for the value of silk piece goods, although it was not told they were part of the contents of a trunk, we see no reason why it should not be held liable for all the articles in the trunk in question in the instant case. The silk piece goods, admittedly, were not “baggage” in the restricted sense, they were personal property just as anything else is that may be placed in a trunk. As to the personal property the plaintiff here put in her trunk, some of it was “baggage” and some of,it was not. Then, too, her silence about the contents, any more than the silence of Lowitz in that case, was not a fraud of any kind. The court so held in that case and we so hold here. We are of the opinion that the plaintiff is entitled to recover the value of the trunk and all its contents.

It is contended that the trial judge erred in refusing to hold certain propositions of law, numbered 4, 5, 6, 7, and 9. We cannot agree with that contention. It is true that the defendant undertook by certain text on the back of the “check” to restrict its liability to $100,, but section 1 of the State statute on common carriers (Cahill’s Ill. St. ch. 27, ¶ 1) provides that a common carrier—which the defendant is—cannot limit its common-law liability to deliver the property safely. Morrison case, supra. Counsel for the defendant urges, also, that the Carmack Amendment renders section 1, supra, void. With that we cannot agree. The defendant was engaged in intrastate and not interstate commerce. The contention that rule 9 of the municipal court is unreasonable and contrary to the statute is made here for the first time and so will not be considered.

Counsel for the plaintiff urge that judgment be entered here for the full value of the trunk and its contents. We do not feel, however, in view of the many items and the condition of the evidence as to values, and by reason of the fact that we are. not helped in any way by the opinion of the trial court as to the value of each of the many items which, according to his conception of the law, he eliminated from consideration, that we would be justified in arbitrarily determining what that value should be.

The judgment therefore, will be reversed and the cause remanded for a new trial.

Reversed and remanded.

Thomson, J:, specially concurring.

O’Connor, P. J., dissenting.