Citation Numbers: 164 S.W. 915, 1914 Tex. App. LEXIS 1261
Judges: Carl
Filed Date: 2/25/1914
Status: Precedential
Modified Date: 10/19/2024
William Peterson sued the San Antonio Aransas Pass Railway Company for the loss of a trunk which it was alleged was worth $530. The suit was filed March 11, 1913, and subsequently Wm. Peterson died, and his widow and children were substituted as plaintiffs.
It was alleged that on July 31, 1912, the plaintiff sent two trunks to appellee's depot in San Antonio, to be taken by them as baggage to Corpus Christi, which were left on the platform; it being alleged that the trunks were delivered to appellee, and that the larger of the two was lost. It is the one that contained the articles for which recovery is sought. On the next day, August 1, 1912, when they went to get the trunks and check them out, the large one was gone, and they have never found same. The trial was before the court, and judgment was entered *Page 916 for the defendant below. The plaintiffs, except Arthur J. Peterson, have appealed. Upon motion, the court filed conclusions of law and fact.
The court found that the trunk was placed upon defendant's platform adjoining the baggageroom, some time in the afternoon of July 31, 1912, and that it had the transferman's check on it. It was placed there about 6:30 p. m.; but the transferman did not call the baggageman's attention to it, and he did not know whether the baggageman was on the premises, nor whether the baggageroom was open. The owner of the trunk did not intend to take passage until the next day. And, further, that the trunk was unloaded at the customary place to unload baggage for passengers going on that road, and there was no other place where the trunk could have been unloaded before being checked; that in the afternoon of July 31, 1912, defendant's baggageroom was open for receiving baggage only from 4 p. m. to 4:45 p. m., and from 6:30 p. m. to 9:15 p. m., and when the baggageroom was closed it was not the duty of the baggagemaster to remain on the premises. The baggagemaster had control over the platform which adjoined the baggageroom. It was a rule of the company that after the last train had left at night to take all baggage left on the platform into the baggageroom for safe-keeping overnight, and next morning it would again be placed on the platform, and this rule was complied with. The court further found that it was a rule of the railway company to refuse to take charge of baggage until 30 minutes before train time, and until such baggage was actually checked, and passengers had bought tickets. This rule the court found to be reasonable, and finds further that there was no evidence that defendant or any of its agents or employes ever saw this trunk or knew that it was on the platform, and that the owner did not intend to take passage until the next day, and that said trunk was never delivered to defendant company, its agents or employes. The court also finds that on August 1, 1912, Mr. Peterson did buy tickets for himself and family and take passage to Corpus Christi.
Upon the law the court concludes: (1) That the rules and regulations of the railway company were reasonable as to receiving baggage and were enforced. (2) That it would be unreasonable to hold baggage left on the platform in the afternoon of one day by a person intending to take passage the next day to be a delivery of such baggage to the carrier, especially when the fact that such baggage so left was never called to the attention of the carrier or its agents or employes. (3) That the baggage was not lost by defendant's negligence, but by the negligence of the owner, and he is not entitled to recover.
Frank Wilkes, the man who hauled the trunk to the depot, says, as to when he put the trunk there: "This was some time in the afternoon, before dark. I put both these trunks on the platform adjoining the baggageroom of the S. A. P. depot right next to the scales where trunks are weighed. I didn't put these trunks in the baggageroom, because they won't let you until the trunks are checked. * * * I had nothing more to do with the trunks after I put them on this platform at the ``Sap' depot. I never saw the baggagemaster. I don't know whether the baggageroom was open or not. I never looked to see. I did not call anybody's attention to Mr. Peterson's trunks."
The question with which we are concerned is whether there was such a delivery of the trunk as to in any way make the railway company liable.
In East Line R. R. Co. v. Hall,
In I. G. N. Ry. Co. v. Pasture Co.,
Goods will not be construed as delivered to a common carrier, unless accepted by the company, or the same are delivered at the customary place for shipment and a custom is shown that delivery at such place is accepted by the company, without further requirement on part of the shipper. But to constitute a delivery of chattels, in the absence of some special feature or understanding, implies an acceptance. In this case it is not contended that there was an acceptance of the trunk, unless it is based upon a constructive acceptance from custom. It was shown, however, and not disputed, that the rules of the company were posted to the effect that it would not accept baggage until 30 minutes before train time, and would not be responsible for baggage left on the platform. Nor is it contended that the baggagemaster or any agent or employe of the company knew the trunk was left there. The man who hauled the trunk there says he did not see the baggagemaster or anybody else, nor does he even know whether the baggageroom was open. He put the trunks out and drove off. He was the agent of the *Page 917 shipper, and, as such, owed certain duties to the railway company before it could be expected that his principal could hold the company liable. If a party is to be held liable for property, he has a right to know when that duty begins. All the cases we have found hold that there must first be an acceptance, unless based upon an established custom of dealing. And then the custom would be construed as the acceptance. But that custom was not proven in this case. The witness Hildebrand says that his company hauled 90 per cent of the trunks to that depot. He had been engaged in such business for years, and says most emphatically that there was no such custom; that it was the custom for the man who hauled it to stay with the baggage either till the owner came or until the baggagemaster checked it in. And the trial court has found with such evidence.
In a stronger case than this one, Chief Justice Fisher holds that the evidence was not sufficient to show either a delivery to the carrier or to establish a custom. M., K. T. Ry. Co. v. Beard,
Appellants cite H. E. W. T. Ry. Co. v. Anderson, 147 S.W. 353, in support of their contention that there was an acceptance by custom, and as to the unreasonableness of the rules of the company in reference to checking baggage. But we find nothing in that case to sustain that contention. The court there said: "For the safe-keeping of such baggage deposited with them a reasonable time before the departure of the train, the railroad company would be liable as common carriers (Fleischman v. Southern Ry. Co.,
As we view the matter, the plaintiffs below failed in two particulars to discharge the burdens resting on them: (1) They did not establish a custom upon which they could rely. (2) And utterly failed to show any acceptance of the trunks by the company, or to show that its agents knew anything about them.
In Gregory v. Webb,
A passenger is bound to look after his own property until it is delivered and accepted by the carrier; or at least until he has complied with an established custom of the carrier in dealing with the public, in reference to the receipt of baggage. Neither of these is shown to have been done, and the plaintiff cannot recover.
Judgment affirmed. *Page 918
Houston E. W. T. R. Co. v. Anderson , 1912 Tex. App. LEXIS 452 ( 1912 )
Missouri, Kansas & Texas Railway Co. v. Beard , 34 Tex. Civ. App. 188 ( 1904 )
International & Great Northern Railway Co. v. Dimmit County ... , 5 Tex. Civ. App. 186 ( 1893 )
Fleischman, Morris & Co. v. Southern Ry. , 76 S.C. 237 ( 1907 )