Blumenthal v. Maine Central Railroad

Railroads. Baggage. Common earners. The plaintiff being about to take passage on one of the defendant’s passenger trains, had his valise checked by the baggage master to go upon the same train as his personal baggage. The valise did not contain any personal baggage, but only merchandise for sale. Held, that the defendant was under no obligation to transport the valise, and was not liable for failure to transport it.

On report from the superior court. An action to recover the value of a valise and merchandise contained therein amounting to four hundred and eighty dollars and thirty-nine cents, which the plaintiff had checked as baggage at Bangor station of the defendant’s road for Augusta. The facts are stated in the opinion. While there is a case which apparently holds that pack-pedlars have no rights which railroads are bound to respect, (see Blumantle v. F. R. R. 127 Mass. 322,) and while it is conceded that the checking of merchandise by a party intending •thereby to defraud the carrier of the freight money, creates no liability as a common carrier for its loss, it is believed that the circumstances of this case create some liability for which the defendant is answerable, and bring it within another, and quite different principle from that governing cases of actual or legal fraud, such as is spoken of in R. R. v. Garrow, 73 111. 348 ; S. C. 24 Am. R. 248. The learned editor of the American Decisions in a note to Hutchings v. R. R. Co. 71 Am. Dec. 161, says, "The true •doctrine seems to us to be that where there is no concealment on the passenger’s part and a carrier receives and treats as baggage a package which he knows to be merchandise, he should be liable in case of loss, although no extra compensation was charged for its transportation: and certainly he should be liable if he knowingly receives merchandise and charges for and carries it as extra baggage.” See Great Northern R. R. v. Shepherd, 8 Exch. 30; Sloman v. R. R. 6 Hun, 546. The baggage master who checked the package, so far as the plaintiff was concerned, had authority to do so. Perley v. R. R. Co. 65 N. Y. 374; see also Sloman v. R. R. supra; Field on Corp. § 193. The action of the baggage master has been ratified by the defendant. Upon the authority of the agent, the defendant has raised no question either by the pleadings or at the time of taking evidence. If it had intended to repudiate the agent’s authority, it should have been done long ago, and cannot be heard to deny such authority now. The defendant’s silence has ratified the agent’s act. 2 Kent’s Com. 616 ; Kelsey v. Bank, 89 Penn. St. 429 ; Bank v. Reed, 1 W. & S. 101; Ward v. Williams, 26 111. 447 ; S. C. 79 Am. Dec. 385 and note. The liability of this defendant is settled by the case of Railroad v. Carrow, 73 111. 348; S. C. 24 Am. Rep. 248, in which it is held that although the fraudulent checking of merchandise, as baggage and its loss by the carrier does not make the latter liable as a common carrier but that he is liable as a bailee without reward or as a mandatary. That the defendant owes to the plaintiff the duty of ordinary care and is responsible to him for gross negligence is, I think, hardly to be controverted. Story on Bailments, § § 182, 182 a; Coggs v. Bernard, 2 Ld. Rayrn. -909. Judge Story in his work on Bailments, § 278, lays down the rule in these words. "Where a demand of the thing loaned is made, the party must return it, or give some account how it is lost. If he shows a loss, the circumstances of which do npt lead to any presumption of negligence on his part, there the burden of proof might perhaps, belong to the plaintiff to establish it.” See also Logan v. Matheios, 6 Burr. R. 417; Bush v. Miller, 13 Barb. 482 ; the case of Beardslee v. Richardson, 11 Wend. 31; S. C. 25 Am. Dec.- 598, would seem to be a leading authority upon this proposition. "All persons who stand in a fiduciary relation to others are bound to the observance of good faith and candor. .... The property is in the possession and under the oversight of the bailee whilst the bailor is at a distance. Under these circumstances good faith requires that if the property is returned in a damaged condition some account should be given of the time, place and manner of the injury.” Collins v. Bennett, 46 N. Y. 490. And the rule is the same where the property is not returned at all. Boies v. R. R. 37 Conn. 272. See Cctmden and Amboy R. R. v. Baldauf, 16 Penn. St. 67 ; S. C. 55 Am. Dec. 481; Clark v. Spence, 10 Watts,'335; 2 Kent’s Com. 587 ; Mills v. Gilbreth, 47 Maine, 320; 74 Am. Dec. 487 ; Schouler on Bailments, 25, note; Schmidt v. Blood, 9 Wend. 268; S. C. 24 Am. Dec. 143, and see a very elaborate note on page 153; Funkhouse v. Wagner, 62 Ill. 59. cited: Blumantle v. Fitchburg R. R. 127 Mass. 322; Collins v. B. & M. R. R. 10 Cush. 506; Stimson v. Conn. Biver R. R. 98 Mass. 83 ; Connolly v. Warren, 106 Mass. 146; Wilson, v. Grand Trunk By. 56 Maine, 60; Smith v. R. R. 44 N. H. 330; Macrow v. Great West. By. L. R. 6 Q. B. 612; Cahill v. L & N. W. Ry. 10 C. B. (N. S.) 154; Hutchings v. W. & A. R. R. 25 Ga. 61 (71 Am. Dec. 156) ; Ailing v. B. & A. R. R. 126 Mass. 121; Mich. Cen. R. R. v. Carrow, 73 111. 348 (24 Am. R. 248 ;) B & B. Ry. v. Keys, 9 H. L. Cas. 556 ; Dunlap v. Steamboat Co. 98 Mass. 371; Haines v. Chicago &c. R. R. 29 Minn. 160 (43 Am. R. 199).