Shannon v. Hines , 205 Mo. App. 629 ( 1920 )

This suit is against the Director-General of Railroads in control of the Missouri, Kansas Texas Railroad and we will speak of that railroad as defendant. By his petition plaintiff alleges that he delivered to the defendant a certain trunk and its contents to be transported as his personal baggage from Joplin, Missouri, to Wichita Falls, Texas, and that defendant accepted same by issuing a check therefor; that defendant failed to transport or deliver same to him at Wichita Falls or elsewhere but on the contrary delivered same to some person at Joplin whereby plaintiff lost his trunk and contents. The evidence proves these facts and more particularly that plaintiff purchased a ticket and became a passenger on one of defendant's trains from Joplin to Wichita Falls and that this trunk was presented by him and checked in the usual way as his personal baggage without any further charge; that the person to whom the trunk was delivered at Joplin was a United States officer connected with the Internal Revenue Service and the delivery to him was more in the nature of a seizure of same on his discovery that the trunk contained, in addition to plaintiff's clothing and other proper personal baggage, eight quarts of whiskey. The suit was commenced in a justice court and the defenses are gathered from the evidence instead of any pleading. The case reached the circuit court on appeal and was there tried by a special judge without a jury resulting in a judgment for plaintiff.

The defendant showed at least two good reasons why it could not be held for failure to transport and deliver at destination the trunk containing the whiskey. The plaintiff did not disclose to defendant's agent checking this trunk that same contained whiskey and this was discovered by the revenue officer opening up the trunk in defendant's baggage room a short time before the train left on which plaintiff and his trunk were to be carried. Defendant's agent was not acquainted with plaintiff and neither he nor the revenue officer had any means of ascertaining to what particular passenger this trunk belonged. The shipment of this trunk containing whiskey from Missouri to Texas would have been in plain violation of section 240 of the United States Criminal Code (10 U.S. Comp. Stat., 1916, sec. 10410, p. 12852) which provides that, "Whoever shall knowingly ship, or cause to be shipped, from one State . . . into any other State . . . any package of or package containing any spirituous . . . or other intoxicating liquor of any kind, unless such package be so labeled on the outside cover so as to substantially show the name of the consignee, the nature of its contents and the quantity contained therein, shall be fined not more than five hundred dollars; and such liquor shall be forfeited to the UnitedStates, and may be seized and condemned by legal proceedings as provided by law in the seizure and forfeiture of property imported into the United States contrary to law." This trunk was not labeled on the outside so as to show the consignee or that it contained intoxicating liquors in any quantity and on discovering that fact defendant properly refused to transport the same. [10 C.J. 282; Rosenberger v. Express Co., 258 Mo. 97, 167 S.W. 429; Harvest King Distilling Co. v. American Express Co.,192 Mo. App. 172, 179 S.W. 797.] The trial court took this view of the case and declared the law to be that plaintiff could not secretly use this checked trunk as a means of transporting whiskey into the State of Texas.

The defendant was also excused from transporting this trunk containing whiskey as baggage because defendant's tariff on file with the Interstate Commerce Commission defines what articles may be carried as personal baggage and clearly whiskey is not one of the articles that may be so carried. The defendant in checking his trunk could rely on the implied representation that the trunk contained only what could go as proper baggage and on discovering the fraud its contract to transport is not binding. [Brick v. Railroad, (N.C.) 58 S.E. 1073.] This is too obvious to require further citation and the trial court recognized this to be the law.

Whether or not Wichita Falls was in "dry territory" so as to make it unlawful to transport intoxicants from another State thereto and making this shipment a violation of section 8739, U.S. Complied Statutes, 1916, p. 5938, we need not determine in view of the at least doubtful validity of the Statewide Prohibition Law of Texas put in evidence by defendant. [See Venn v. State, 210 S.W. 434; White v. State, 210 S.W. 200.] This would only add one more reason excusing defendant's failure to transport and deliver the trunk and its contents in Texas and one valid defense along this line is a good as a dozen.

The trial court also declared the law to be that if the trunk contained whiskey and was checked for transportation as an interstate shipment then the seizure of the whiskey by the U.S. Revenue Officer and its confiscation by him was a proper and lawful act. This we think is correct, at least so far as the seizure is concerned, in view of section 240, U.S. Criminal Code above quoted and which prohibits anyone from shipping or causing to be shipped from one State to another any "package of or package containing" intoxicants in a disguised or secret manner and which further declares that "such liquors shall be forfeited to the United States and may be seized, etc." Whether such liquor could be confiscated without first being condemned by legal proceedings makes no difference here since defendant had nothing to do with the destruction of the liquor after its seizure. The lawful seizure of the liquor destroys defendant's liability therefor though its destruction was without authority of law. [Danciger v. Railroad, (Mo.) 212 S.W. 5, 7.]

The trial court very properly did not allow plaintiff any damages for the loss of his whiskey but allowed damage for the loss of the trunk and its other contents consisting of wearing apparel and which was proper and lawful baggage. As to this, the whiskey could readily have been removed from the trunk and its other contents. It was so removed in fact and destroyed and the officer then confiscated and converted to his own use the trunk and its entire contents. The same was held at the defendant's depot only a day and was then taken to a private house and after being kept there some time was again removed no one knows where. This it seems to us was unlawful and is not justified by the United States statute above quoted and which did justify the seizure of the whiskey. We are not now concerned with any incidental damage or detention of the trunk and its contents made necessary or proper by the seizure of the liquor therein. We also reject as without substantial foundation the suggestion that the officer was properly holding the trunk and contents to be used as evidence in a criminal prosecution.

Granting that defendant is not liable for the unlawful acts of the government officer done against its will, yet such officer at once indicated an intention to seize and confiscate not only the whiskey but the trunk and wearing apparel therein, when there was no reason for so doing. In fact defendant's agent testified that on other occasions such officers had taken baggage in this manner and "when they found anything, they taken the whole thing;" that he had been instructed to take a receipt and "just so you took a receipt that was all that was required." This court in Liquor Co. v. Railroad, 182 Mo. App. 1, 8, 167 S.W. 631, held that in order for the act of an officer in taking property from the possession and control of a carrier to be a complete defense against liability of such carrier the officer must have had authority to do so. That portion of our opinion has not been questioned so far as we know and the authorities there cited support such holding. See 6 C.J. 1142, where it is said that a bailee is liable where he surrenders the property to an officer who does not hold a proper warrant."

As to the degree of care which defendant was bound to exercise to preserve for the owner the trunk and its contents, other than the whiskey, after it had discovered that the whiskey therein rendered the trunk improper baggage, the trial court held that the defendant was liable only as a gratuitous bailee and could be held responsible only for gross negligence in handling and dealing with the trunk and its contents. This was certainly favorable enough to defendant and plaintiff boldly says that he is asking a recovery solely on the ground that defendant failed to exercise that degree of care with reference to this property imposed on a gratuitous bailee. This, we think, was properly a question for the trier of the facts as to which the burden of proof was on defendant. [Danciger v. Railroad, 212 S.W. 5, 8.] There is evidence here of connivance if not actual assistance of the baggage agent in taking and converting this property by the United States officer. While the defendant may not be responsible for the acts of the agent in having the trunk and contents removed to and cared for at the agent's private residence, such fact does raise an inference that such agent was ready and willing to assist rather than hinder the United States officer in taking and confiscating this property.

As to the amount and measure of damages the trial court is in error. It is provided in defendant's tariff on file with the Interstate Commerce Commission, which became a part of the baggage contract, that defendant would not be liable in excess of $100, which amount became the agreed valuation of the baggage checked unless a larger valuation was declared and paid for by the passenger. It was solely under this contract that defendant came into possession of the trunk and contents and incurred any liability therefor. Had plaintiff not placed the whiskey therein the defendant's liability in case of conversion, loss or any act of commission or omission causing plaintiff damage, would not have exceeded $100. The validity of the contract limiting the liability to $100 is not questioned. Could plaintiff by wrongfully and secretly placing therein an article not lawful baggage or one forbidden by law to be transported at all, increase defendant's liability to an indefinite extent? Had plaintiff lost the trunk and contents in the manner he did, that is, by a wrongful taking of same by a third party through defendant's negligence, he could have recovered no more than $100; but by his wrong in placing the whiskey therein he gets a much larger amount. This is not reasonable. A defendant carrier may well take advantage of plaintiff's wrong in trying to ship as baggage an article not such, or one forbidden to be transported, and claim that thereby it is relieved of the responsibility and degree of care attaching to a carrier of baggage, but plaintiff cannot reap an advantage arising from his own wrong. Plaintiff's agreement as to value and the amount of liability in case of loss, by which he induced defendant to accept his trunk and whereby any liability whatever attached, remained in force notwithstanding plaintiff's wrong may have changed the degree of care or other incidents of defendant's liability. Neither party has cited any authority on this proposition and we know of none. We decide it, therefore, in the light of legal reasoning as seems just and right.

This error may be corrected in this court by remitting the sum of $75.95, reducing the amount of the judgment to $100. If plaintiff will file such remitter in this court within ten days the judgment will be affirmed in that amount; otherwise it will be reversed and remanded.

Farrington and Bradley, JJ., concur.