Chapter XV Baggage Again
Epistolary Model.—Dog lost.—Quitting a Moving Car.—When Liability for Luggage commences.—Goods of Third Party.—Left in the Car.—Baggage lost.—English Rule.—Limited Liability.—Personal Luggage, what it is.—Watch.—Rings.—Pistol.- Railroad Porter.—Hotel ’Bus.—Tools and Pocket Pistols.—Fiddles and Merchandise.
—Farewell.
My Dear Wife,—
Your letter announcing your safe arrival at M——, if, indeed, you can be said to have arrived safely, considering all that befell you, made me happy this A. M. The tale of your disasters was really quite amusing, and I have passed some of my lonely hours most agreeably considering the law on the various points.
So poor Fox is gone; doubtless the mangled remains of that poor cur lie stark and cold upon the railway line, and crows are gathering in the leaden skies to assist at his funereal obsequies; or, perchance, he may be gracing the board at some restaurant in the familiar form of sausages. You say it appears that he slipped his head through the noose of the string by which he was tied in the baggage car; if this be so the baggage man might have seen that he was not securely fastened; and it was his duty to lock him up, or otherwise keep him safely.649 Make out your bill, dearest, we’ll make the company pay. At what figure do you value him? (I had, however, better add that in a late case where a dog was fastened in the ordinary way, and there was nothing to show that he was likely to escape, the carrier was held justified in trusting to the owner having properly secured the animal.)650
Poor Miss Smith ought to have been more careful when she would insist upon going into the car to bid you a last adieu, even though her young man was waiting for her. She most certainly should not have attempted to leave the carriage after it was in motion, and when the conductor warned her not. Even if the conductor was to blame in negligently starting the train without the usual premonitory screech, and the unnecessary jerk assisted in the catastrophe, the company was not responsible; her conduct was the mere outcome of that perverseness which is the characteristic trait of the feminine nature.651
You never told me that Eliza Jane had taken her trunk to the station some half dozen hours before the train was to start; it was rather verdant of her so to do. I presume the desire to have a quiet drive with her John was the motive. The loss of her finery will teach her a lesson; however, it will not really matter, as she can recover the value of her “things,” for the responsibility of the company as common carriers attaches as soon as their servants receive the baggage of the traveller at the proper place; and the giving of the check does not control the time of the responsibility attaching.652 One is a passenger, and entitled to sue for damages sustained, the moment he mounts the bus (run by the company) on his way to the station.653 But where an intending passenger, fifteen minutes before the train was to start, entered a car at the terminus, left his valise on a vacant seat and went out; and on his return shortly afterwards his baggage was gone; as he did not show that there was any one in charge of the train or any other passenger on board, the court would not hold the company liable.654 The fact that you took and paid for her ticket will not prevent E. J. maintaining an action for her loss,655 for it makes no difference whether a passenger pays her own fare, or some one else kindly does it for her.656 In fact, if one is travelling on a free pass by which the company stipulates to be excused from all loss or damage, still they are responsible for the wilful or careless misconduct of their servants.657
But, unfortunately, I fear that you must quietly submit to the loss of those things of yours which she had in her trunk, for the contract to carry was with her alone; the company thought that the trunk contained her luggage; if they had been told that it was not they might have objected to carry, considering the Saratogas you had, not to speak of bandboxes, bundles, and parcels; and even if you had had no luggage yourself, it would have been all the same;658 and as they were not Eliza Jane’s I don’t suppose she can sue for them either.
And so that pretty dressing-case which I gave you on that memorable day when we twain became one flesh, is gone! you say that you put it under your seat in the car, and that it must have been left there when the porter carried your traps to the cab at your journey’s end; well, I cannot say that placing it where you did was a very wise thing, still as another lady who once did the same in England recovered the value of her dressing-case (although she failed to recover the case itself),659 so doubtless if money will dry your tears for the loss of that memento of our wedding-day, you will be consoled. Probably the fact of your name and address not being on it will not affect your rights in the matter.660 A railway company is liable for the loss of a passenger’s luggage though carried in the carriage in which he himself is travelling.661 Very special circumstances, and circumstances leading irresistibly to the conclusion that the traveller takes such personal control and charge of his luggage as altogether to give up all hold upon the company, are required before a court will say that the company as common carriers are not liable in the event of a loss.662 Even if luggage is never given to a railroad servant but kept by the passenger in his own possession, still in the eye of the law it is considered to be in the custody of the company, so as to render them responsible for the loss.663 In England, a railway company that receives goods or luggage, and books it for a certain place beyond the terminus of its road (unless it specially stipulates to be exempt for whatever happens on other lines), is responsible for any evil that befalls it before its arrival at its journey’s end, even though it happens while the goods are passing over the rails of another company;664 in fact one has no remedy except against the company with whom the contract is made. But the justice and soundness of the English decisions have been seriously questioned by the American courts, who think that the carrier is only liable for the extent of his own route, and for safe storage, and safe delivery to the next carrier.665 Many cases, however, follow the English ones, and others hold that the responsibility is only primâ facie, and may be controlled by general usage among carriers, whether such usage be known to the traveller or not.666 (But this subject is so mixed that I will show you what Judge Redfield says when you get back again.)667 Where different railways—forming a continuous line—run their cars over the whole line and sell tickets for the whole route, checking baggage through, an action lies against any company for the loss of baggage.668
Of course if there was any notice on your ticket limiting the liability of the company with regard to your traps, you are bound thereby, even if you never read it;669 for railway companies, as well as other carriers, may limit their responsibility by special contract of which notice is given to the passenger or owner, and to which he assents or does not object, subject to such exception, limitation, or qualification as reason and justice may require and a judge and jury decide with reference to each particular case.670
I don’t exactly know what you had in that dressing-case of yours, but the rule is, “that whatever a passenger takes with him for his own personal care and convenience, or even for his instruction and amusement,671 according to the habits or wants of the particular class to which he belongs, either with reference to the immediate necessities or the ultimate purpose of the journey, must be considered as personal luggage,” for the loss of which the carrier is liable;672 and articles of jewelry, such as a lady usually wears, are considered personal luggage.673 So is a watch;674 though in Tennessee a watch was not deemed a proper part of necessary baggage.675 Where was yours? So are finger rings.676 In one case a man was allowed to have two gold chains, two gold rings, a locket and a silver pencil-case;677 so I will leave you to calculate how many a lady should be allowed to carry about with her. Your swell gold spectacles would also come within the category;678 and by the way, that linen which you bought for my new shirt fronts would be included679 (if you were good enough to take it with you to make them up, and unfortunate enough to lose it); and that little present you were taking for your sister—perhaps.680 I don’t know what else you had in that case which will now know its place on our dressing table no more forever. Of course, your brushes, razors—pardonnez moi, madame, I forgot to whom I was writing—pen and ink, etc., are fairly baggage within the meaning of the term.681
Not content with the abandonment of your dressing-case, you say you lost a bandbox by stupidly letting a porter carry it for you to a cab, which you could not afterwards find: well, if it is the custom on that line for the company’s porters to assist passengers to obtain cabs, within the station grounds, and place their baggage therein, the company will be liable for this loss also. This my old friend Butcher satisfactorily established: he had a carpet-bag with him containing a large sum of money, and this he wisely kept in his own possession while journeying up to London. On arriving at the station there, however, he unwisely—even Jove sometimes nods—let a porter take it from him for the purpose of securing a cab. The porter put the bag in a fly and then returned to the platform to get my friend’s other luggage. Meanwhile cabby disappeared and the bag and all that was therein was lost. The court considered the company liable, as there had been a delivery of the bag to them to be carried, and no re-delivery to Butcher.682 Where baggage has been lost, the owner may recover all reasonable expenses incurred in his hunt after it, such as telegraphing, cab-hire, etc.: but his loss of time is a dead loss.683
Your next misfortune was the loss of that new book I gave you, wherewith to beguile the weariness of the way; you say you left it in the omnibus that took you up to the hotel; well, omnibus drivers who take passengers from the stations about the towns are unquestionably responsible as common carriers.684 Although in England it has been held that a cab-driver or hackney-coachman was not;685 still they are bound to use an ordinary degree of care. If the hotel proprietor undertakes to provide free transit to and from the cars, and you lost your book in his ’bus, he is liable.686
Although it deeply pains me to find the slightest fault with my spouse, still I must say that I think that you have been a little careless during this trip; in fact you have shown that the character your mother gave you was not quite a libel, when she said that you would lose your head were it not securely fastened on, and your tongue were it not in incessant use.
While I am writing to you in this strain, I may as well give you a little further information concerning what you may, and what you may not, carry as personal baggage; though doubtless you will soon forget all that I say, or if not,—at all events,—will not heed it, such is the forgetfulness and perverseness of that sex whose love, as Prince Charles Edward said, “is writ on water, whose faith is traced on sand.”
Besides what I have already mentioned, if you are a sportsman you may take a gun, if a disciple of the gentle Izaak Walton, the necessary instrumenta bella;687 if you are a joiner—I don’t mean a parson—you may take a reasonable amount of tools with your clothes,[2] although perhaps you can’t;[3] for in Pennsylvania a carpenter was permitted to carry a reasonable amount of his tools with him,688 while in Ontario a brother of the same craft was not;689 the judge thinking that a blacksmith might just as reasonably expect to carry his forge, or a farmer his plough, as part of his baggage. You may take new clothing and materials for yourself and family, though not for others;690 if you are of a nervous disposition and desire to defend yourself against thieves and robbers, you may take a pocket pistol,—don’t suppose I mean a brandy flask,—if you are a bellicose man of honor a couple of duelling pistols will be allowed,691 or even a gun,692 although in Maryland, one was not allowed to take a colt.693 A theatre goer may take an opera glass;694 a student on his way to college, manuscripts necessary for the prosecution of his studies;695 but an artist cannot carry his pencil sketches as luggage in England;696 although Cockburn, C. J., thought he could, and his easel as well.697 J. Wilson, in a Canadian case, thought that one musically inclined might take a concertina, or a flute, or that instrument in the playing of which a western writer says “the resined hair of the noble horse travels merrily over the intestines of the agile cat;”698 but fortunately for mankind in general the majority of the court held otherwise.
You cannot carry merchandise, either in England,699 the United States,700 or the Dominion of Canada,701 unless, indeed, it is carried openly, or so packed that the carrier can see what it is and does not object to it; nor samples, if you belong to the confraternity of commercial travellers;702 nor can a banker take money as such;703 nor can one carry silver spoons, nor surgical instruments, unless he is a disciple of Galen and Hippocrates;704 nor boxes of jewelry for sale;705 nor silver-ware;706 nor the regalia and jewels of a society;707 nor a sewing-machine;708 and it is beyond a peradventure that if a carrier accepts a trunk, or baggage, containing such tabooed articles, without knowledge of such contents, he incurs no liability.705 If he is deceived into taking it, he is not bound to carry it safely.709
But really, my dear, I must draw these remarks to a close, as the parsons say in their sermons. You cannot complain that this letter is too short. There are several items of news—of babies born, brides be-wed, bodies buried,—and such like trivialities, of which I might have told you; but as you spoke about your losses I concluded that I would send you an instructive note, and let vain trifles rest quiescent until your return.
Though you may think that this epistle smacks somewhat of business, yet please reflect that you are my sleeping partner, and spend the greater portion of the profits of my office, and so ’tis becoming that you should be slightly acquainted with legal matters, especially as you are the daughter of my mother-in-law.
Adu! adu! O reservoir!
Your
Spanish Grandee.
Footnotes:
649 Stuart v. Crawley, 2 Stark, 324.
650 Richardson v. Northeastern Rw., L. R., 7 C. P. 75, note.
651 Lucas v. Taunton & New Bedford Rw., 6 Gray, 64.
652 Camden & Amboy Rw. v. Belknap, 21 Wendell, 354; Hickox v. Naugatuck Rw., 31 Conn. 281.
653 Buffet v. Troy Rw., 40 N. Y. 168.
654 Kerr v. G. T. R., 24 C. P. (Ont.), 209.
655 Marshall v. York, N., & B. Rw., 11 C. B., 655.
656 Van Horn v. Kermit, 4 E. D. Smith, 453.
657 Mobile & Ohio Rw. v. Hopkins, 41 Ala. 486.
658 Becher v. G. E. Rw., L. R., 5 Q. B. 241.
659 Richards v. London, B., & S. C. Rw., 7 C. B. 839.
660 Campbell v. Caledonian Rw., 14 Ct. of Sess. Cas. 2 Ser. 806; 1 S. M. & P. 742.
661 Le Conteur v. London & S. W. Rw., L. R., 1 Q. B. 54.
662 Ibid.
663 Great Northern Rw. v. Shepherd, 8 Ex. 30; but see Tower v. Utica & Sch. Rw., 7 Hill, N. Y. 47.
664 Muschamp v. Lancaster & Preston Junction Rw., 8 M. & W. 421; Watson v. Ambergate, N. & B. Rw., 15 Jur. 448; Bristol & Ex. Rw. v. Collins, 7 House Lords Cas. 194. The same rule applies in Canada, Smith v. G. T. Rw., 35 U. C. Q. B. 547.
665 Farmers’ & Mechanics’ Bank v. Champlain Trans. Co., 16 Vt. 52; 18 Vt. 131; 23 Vt. 186; Van Santvoord v. St. John, 6 Hill, N. Y. 158.
666 Southern Express Co. v. Shea, 38 Ga. 519; Cincinnati, etc., Rw. v. Pontius, 19 Ohio (N. S.), 221.
667 Redfield on Railways, vol. ii., p. 126, et seq.
668 Hart v. Rensselaer & Saratoga Rw., 4 Seld. 37.
669 Zunz v. South-eastern Rw., L. R., 4 Q. B. 539; but see Kent v. Midland Rw. Co., L. R., 10 Q. B. 1; Henderson v. Stevenson, L. R., 2 S. & D. 470.
670 Carr v. Lancashire & York Rw., 7 Ex. 707; Redfield on Railways, vol. ii., p. 101. Where the condition on ticket was “that the company does not hold itself responsible for any delay, detention, or other loss arising off its lines,” and the baggage was never delivered to any other company, held that meaning of last words was “out of the custody of the company.” Kent v. Midland Rw., L. R., 10 Q. B. 1.
671 Hawkins v. Hoffman, 6 Hill, 586.
672 Cockburn, C. J., in Macrow v. Great Western Rw., L. R., 6 Q. B. 622; Great Northern Rw. v. Shepherd, 8 Ex. 38.
673 Brooke v. Pickwick, 4 Bing. 218; McGill v. Rowand, 3 Penn. St. 451.
674 Jones v. Voorhees, 10 Ohio, 145; Miss. C. Rw. v. Kennedy, 41 Miss. 471.
675 Bomer v. Maxwell, 9 Humphrey, 621.
676 McCormick v. Hudson River Rw., 4 E. D. Smith, 181.
677 Bruty v. Grand Trunk Rw., 32 U. C. Q. B. 66.
678 Re H. M. Wright, Newberry Admiralty, 494.
679 Duffy v. Thompson, 4 E. D. Smith, 178.
680 Great Western Rw. v. Shepherd, 8 Ex. 38; but see Bell v. Drew, 4 E. D. Smith, 59.
681 Hawkins v. Hoffman, 6 Hill, N. Y. Rep. 589.
682 Butcher v. London & S. W. Rw., 16 C. B. 13.
683 Morrison v. E. & N. A. Rw., 2 Pugsley’s Rep. No. 3, p. 295.
684 Peixotti v. McLaughlin, 1 Strob. 468.
685 Brind v. Dale, 8 C. & P. 207; Ross v. Hill, 2 C. B. 887.
686 Dickinson v. Winchester, 4 Cush. 115.
687 Macrow v. Great Western Rw., L. R., 6 Q. B. 622; Hawkins v. Hoffman, 6 Hill, N. Y. Rep. 589.
688 Porter v. Hildebrand, 14 Penn. St. 129.
689 Bruty v. Grand Trunk Rw., 32 U. C. Q. B. 66.
690 Dexter v. S. B. & N. Y. Rw., 42 N. Y. 326.
691 Woods v. Devon, 13 Ill. 746; Bruty v. G. T. Rw. 32 U. C. Q. B. 66.
692 Davis v. Cayuga & S. Rw., 10 How. Prac. 330.
693 Giles v. Fauntleroy, 13 Md. 126.
694 Toledo & Wabash Rw. v. Hammond, 33 Ind. 379.
695 Hopkins v. Westcott, 7 Am. Law Reg. (N. S.), 533.
696 Mytton v. Midland Rw., 4 H. & N. 615; Morritt v. N. E. R., L. R., 1 Q. B. D. 302.
697 Macrow v. Great Western Rw., L. R., 6 Q. B. 622.
698 Bruty v. Grand Trunk Rw., 32 U. C. Q. B. 66.
699 Great Western Rw. v. Shepherd, 8 Ex. 30; Macrow v. Great Western Rw., L. R., 6 Q. B. 616.
700 Pardee v. Drew, 25 Wend. 459; Collins v. Boston & Maine Rw., 10 Cush. 506.
701 Shaw v. Grand Trunk Rw., 7 U. C. C. P. 493.
702 Cahill v. London & N. W. Rw., 13 C. B. (N. S.), 818; Belfast B. L. & C. Rw. v. Keys, 9 House Lords Cas. 556; Hawkins v. Hoffman, 6 Hill, 586; Dibble v. Brown, 12 Ga. 217.
703 Phelps v. London & N. W. Rw., 19 C. B. (N. S.), 321.
704 Giles v. Fauntleroy, 13 Md. 126.
705 Richards v. Wescott, 2 Bosw. 589.
706 Bell v. Drew, 4 E. D. Smith, 59.
707 Nevins v. Bay State S. B. Co., 4 Bosw. 225.
708 Bruty v. Grand Trunk Rw., 32 U. C. Q. B. 66.
709 Sleat v. Fagg, 5 B. & Al. 342.