House v. Chicago & Northwestern Railway Co. , 30 S.D. 321 ( 1912 )

WHITING, J.

This is an appeal from' a judgment in favor of the plaintiff and from- the order denying a new trial. It is alleged in the complaint, in substance, that on -December 10, 1908, at Blunt, S. D., the defendant in its capacity as common carrier, undertook and agreed to transport the plaintiff and 'his baggage from said Blunt to Sioux City, in the state of Iowa, and then and •there, for the purpose of transportation, received the plaintiff into its care with his baggage, consisting of one trunk and contents, of the alleged value of $488.30; that the defendant failed and neglected to transport said trunk safely and deliver same to the said plaintiff at Sioux City or at any other place, but negligently lost the same with its contents to the damage of the plaintiff in the sum above stated. By way of answer the defendant denied generally the allegations of the complaint except that it was and is a railway corporation and was and is a common carrier of passengers. In addition it alleged that, if at any time it accepted any trunk or baggage of the plaintiff for transportation from Blunt, S. D., to Sioux City, at such time the said Sioux City was and still is a place situated beyond the usual route of this defendant, and that -this defendant transported and delivered said trunk and baggage at the end of its route at Alton, Iowa, in the direction of Sioux City, to another competent carrier, namely the Chicago, St. Paul, Minneapolis & Omaha Company.

[1] At the commencement of the trial the defendant objected to the introduction of any evidence by the plaintiff upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and the defendant contends that: “Defendant’s objection that the complaint did not state facts sufficient to constitute a cause of action should have been sustained for ■the reason that it was necessary for plaintiff to plead and prove a demand, in writing, upon the defendant for the money damages claimed to 'have been sustained, as a condition precedent to the right to commence this action.” The contention of counsel is based upon the proviso contained in section 442, Pol. Code, which reads as follows: “Provided, that in all cases demand in writing-on said common carrier * shall be made for the money damages sustained before the suit is brought for recovery under this section, and no .suit shall be brought until the expiration of thirty days after such demand.” We are of the opinion that this contention is. untenable for the reason that chapter 7, containing the section referred to, provides: “Sec. 431. The provisions of this article shall apply to the transportation of passengers and property, and to receiving, delivering, storage and handling- of property wholly within this state, * * * and shall also be held to apply to shipments of property made from any point within the state to any point within the state whether the transportation of the same shall be wholly within the state or partly within this state and an adjoining state or states.” It will thus be seen that the act is expressly limited to transportation between points within this state, and has no application to .interstate commerce beween this state and other states, and, in the case at bar, the contract was to transport the plaintiff and 'his lug-gage from a point in this state to1 a point within the state of Iowa.

[2] An examination of the record herein shows that the main contention of the appellant in the trial court was that, inasmuch as it delivered the trunk to the Omaha railroad company at Alton, Iowa, for transportation to Sioux City, it was not liable in this action to the plaintiff, and hence that the admission of a certain folder or timetable introduced by thé plaintiff, over the objections of the appellant, to show that the Omaha road was controlled by the appellant, and the charge of the court with reference thereto, constituted error for which the judgment should be reversed. We ai^e of the opinion that this contention is untenable as the act of Congress of June 29, 1906, known as the Carmack amendment to the act of 1887 providing for the Interstate Commerce Commission, imposed upon the carrier which accepts the property for transmission the liability of a common carrier for the entire distance so far as the party who has sustained the loss is concerned, whether that loss occurred upon the line of the original or primary carrier or upon the connecting line. This amendment received construction in Atlantic Coast Line Railway Co. v. Riverside Mills, 219 U. S. 186, 31 Sup. Ct. 164, 55 L. Ed. 167, 31 L. R. A. (N. S.) 7. In the opinion the court says: “In substance, Congress has said to such carriers: ‘If you receive articles for transportation from a point in one state to a place in another, beyond your own terminal, you must do so under a contract to transport to the place designated. If you are obliged to use the services of independent carriers in the continuance of the transit, you must use them as your own agents, and not as agents of the shipper.' It is therefore not the case of making one pay the debt of another. The receiving carrier is, as principal, liable not only for its own negligence, but for that of any agency it may use, although, as between themselves, the company actually causing the loss may be primarily liable.”

Under the United States law, as construed in that decision, the defendant in this action was primarily liable for the loss' of the trunk and contents notwithstanding the same may have occurred after the trunk was transferred to' the Omaha road. It will not be necessary, therefore, in view of the decision of that learned court, to pass upon the question as to the admissibility of the timetable or folder as the court’s charge and ruling, even if erroneous, would not constitute reversible error.

[3] As above stated, the chief contention of the appellant in the trial court was that it was not liable for the loss of the trunk and contents after same had been by it turned over to- the connecting line. Appellant also contends, as stated in its 'brief, that “the various article in the trunk, * * * not being articles intended for the use of the plaintiff while traveling, or for -his personal equipment, did not constitute baggage, and the defendant is not liable for their loss.” The articles objected to consisted of table cutlery, napkins, table cloths, curtains, pillowcases, pyrography outfit, as well as a shotgun and guncase.

In order to understand the real question before us, it is necessary tc notice the record made upon trial. The appellant, defendant below, at no time, except by certain objections which would really go to the order of proof, raised the question that the plaintiff had not proven facts which showed the property lost to' be baggage. The defendant moved to strike out the evidence that had been received in relation to the above-mentioned articles, and based its motion solely upon the ground that such items were not baggage within the meaning of the law; but such motion in no manner raised the question of the facts proven being insufficient to show that, under the facts surrounding plaintiff’s journey, the articles were baggage. The real contention of defendant as shown by the objections interposed and said motion to strike out evidence, was that the property above referred to, from its very nature, could not, under any circumstances, become baggage. Furthermore, in its instructions to the jury, the court virtually assumed that the property in question was baggage, and the defendant neither objected to the instruction upon the ground that the court had failed to submit the question of whether these goods were, under the facts in the case, baggage, nor did the defendant ask 'the court to give to the jury any instructions directing them to find whether or not such goods were baggage, and laying-down the rule which should' govern them in making such finding. It mus-t be conceded that the question was one which should have been submitted to the jury, under proper instructions, unless it is true that the property in question would not, tinder any circumstances, be baggage. We are therefore confronted with the fact that, unless appellant’s contention that the property would not, under any circumstances, be baggage is correct, the judgment must be affirmed for the reason that the appellant raised no question at the trial upon which it is entitled to a reversal. .

[4] Can, then, articles such as those mentioned, ever become baggage? We think that, under all the authorities, there can be but one answer to this question,, and that in the affirmative. While this court will take judicial notice that, by federal statutes, the Interstate Commerce Commission has been given entensive powers in the regulation of interstate commerce, yet neither this nor the inferior courts of this state should take judicial notice of whether, in the exercise of such power, the Interstate Commerce Commission has in any manner prescribed what shall be included in the term “baggage” when applied to interstate commerce, and certainly no state court should take judicial notice of what definition ,if any, has been given to such term by such Commission. Thompson v. San Antonio & A. P. Ry. Co., 11 Tex. Civ. App. 145, 32 S. W. 427. No evidence was offered to prove any action upon the part of such Commission. We have in this state a statute defining what shall .be considered as baggage. There is nothing in the wording of this statute-that would give to the term “baggage'’ any meaning different than the generally recognized meaning of that term. We can therefore look to the decisions of other courts as to what should comprise the tern “baggage.” Certain rules seem to be established by the universal authority of the courts of this country and England. The only trouble seems to flow from the- application of the rule to the facts in a given case.

[5] The following rule is uniformly sustained: “The term ‘baggage/ within the rule determining the carrier’s liability, is defined to include whatever the passenger takes with him for his own personal use and convenience, according to the habits or wants of the particular class to which he belongs, either with reference to the immediate necessities or the ultimate purposes of the journey. Whether or not certain articles are within the term ‘baggage’ is to be determined from the character and length of the journey, its purposes and objects, the owner’s station in life, and -the habits and rises of the class of travelers to which he belongs.”

Applying this rule, it is uniformly held that the guns of a hunter or the fishing tackle of a fisherman is properly a part of the baggage of the owner while on a hunting or fishing expedition. It must necessarily follow that the cooking utensils and the blankets of a party bent upon a camping expedition are baggage.

It was held in Missouri, etc., v. Meek, 33 Tex. Civ. App. 47, 75 S. W. 317, that the valuable tools belonging to a mechanic, shipped by him in a trunk when going on a journey whose mission was the doing of some work requiring the use of such tools, might be baggage, and that this was a question that should have been left to the determination of ’the jury. In the early case of Ouimit v. Henshaw, 35 Vt. 605, 84 Am. Dec. 646, it was held that, under certain circumstances, beds, pillows, bed-quilts, etc., might be baggage.

We are of the opinion that two- things should control in the determination of what is baggage: (1) The purpose of the journey; (2) the prevailing custom. Under the first of these, as heretofore stated, a camper might take, as his baggage, a camping outfit, including dishes and cutlery, the mechanic his tools when going to perform the work of his trade.. If persons making a journey contemplate a short' sojourn at some point where they, for the time being," will keep house, perchance in a furnished dwelling-, but where they will need .some of their own bedding, dishes, or cutlery, and they take the same in their trunk, it certainly is baggage, providing it is customary for people going upon such a journey to take such articles in their trunks, and providing the articles taken are such as will be reasonably needed for the purpose of so keeping house. Following the same rule, if it is customary for people when making a permanent change of abode (and whether or not it is customary is a question solely for the jury) to take with them, in trunks, various household articles such as dishes, cutlery, etc., then such articles; when so taken are baggage. Some decisions have seemed to imply that the value of the property so taken is material; but there certainly is no foundation for such a rule, except as it is controlled by the universal rule that the property must conform in amount of value to the condition in life of the party taking the same. This rule should be applied to those classes of articles which are infrequently shipped as baggage, as well as to those classes, -such as clothing, which are universally regarded as proper baggage.

It cannot be held that baggage is only such articles as are needed during the journey itself, because this would exclude all articles placed in a trunk and checked through to the destination, and would exclude any person taking a single article as baggage if his journey was between points close together. Dexter, etc., v. Railway Co., 42 N. Y. 326, 1 Am. Rep. 527. We therefore hold that the question of baggage depends upon the purpose of the journey, and upon the customs of the country — the customs as they relate to both the class of articles shipped and the class to which the shipper belongs. Lawson on Bailments, 273, says: “The usages and customs of carriers and travelers must be considered in ascertaining what is baggage, and it is clear that the' legal meaning of the word “baggage' may be enlarged or restricted by such usages or customs. The free carriage of baggage, as we have seen, arose from the custom of the carrier, and not from any law or rule of public policy requiring baggage to be carried free. It has been often hold that, in determining what kind of goods a carrier is obliged to carry and is responsible for as a common carriel- and an insurer, the custom of the carrier is looked 'to; and, it being proved that it was his custom to receive and carry certain property for hire, his calling as a common carrier of such property becomes established, and his extraordinary liability as such attaches. Therefore, -if it should appear that things not heretofore considered by the courts as “baggage” have, by the usage of the time, of the carrier, and of his patrons, come ■to be considered as baggage, they will be so- treated.”

The trial court not having erred in the receipt of evidence, the question of the sufficiency of the evidence to support the verdict not being raised, the evidence having gone to the jury under instructions which virtually assumed that the entire contents of the trunk was baggage, the instructions not having been excepted to for this reason, and no instruction submitting to the jury the question of whether or not the articles lost were beggage having been requested, the judgment must be, and is, -affirmed.