Fraam v. Grand Rapids & Indiana Railway Co.

Brooke, J.

(after stating the facts). It is contended by defendant that, in assuming to take charge of plaintiff’s suit case, it acted solely for the convenience of the plaintiff, and became bailee of his property for accommodation, and not for hire. That, therefore, defendant would not be liable except for wilful conversion or gross negligence.

We cannot agree with this view of the relations be. tween the parties. It may be true, as urged by defendant, that the fee charged (five cents) for the service performed is not much in excess of the value of the check attached to the article, but we are, nevertheless, of the opinion that the insignificant amount of the charge cannot control the status of the parties. Defendant held itself out to plaintiff as willing to take charge of his property, and to redeliver it to him on presentation of the check. It demanded a certain compensation, which plaintiff paid. That this compensation was small is of no consequence. Its adequacy was a matter for the determination of the parties, and they having agreed, the courts will not interfere. Newhall v. Paige, 10 Gray (Mass.), 366 . Moreover, the small fee charged may not be the only con *559 sideration moving from plaintiff to defendant. Railways commonly maintain parcel rooms at their depots in considerable cities, where passengers and others may, for a nominal charge, have their belongings cared for. This service is performed not only for the accommodation of the person using it, or the immediate profit arising therefrom, but may, and probably does, result in increased patronage of and profit to the road, because of the knowledge of the traveling public that such service is afforded. This service is not rendered by the railroad company in its capacity as a common carrier, for the articles are not checked for transportation, but for safe-keeping and redelivery at the place of deposit. In this phase of its activity, the company acts rather in the capacity of a warehouseman, who, for compensation, receives and stores the goods of another.

The contract of bailment here under consideration is one for the mutual benefit of the parties, and the bailee thereunder was bound to exercise ordinary care of the subject-matter of the bailment, and is liable for ordinary negligence. Ordinary care means such care as ordinarily prudent men, as a class, would exercise in caring for their own property under the like circumstances, and whether it is exercised or not is a question of fact for the determination of the jury, under proper instructions. Hofer v. Hodge, 52 Mich. 372 ( 18 N. W. 112 , 50 Am. Rep. 256 ); Ruggles v. Fay, 31 Mich. 141 ; 3 Am. & Eng. Enc. Law (2d Ed.), p. 744.

Defendant’s fourth request to charge is as follows:

“ It having been shown that the goods were stolen, the burden was thereby placed upon the plaintiff to_ prove want of due care by the defendant. There being no proof of want of such due cara by the defendant, your verdict must be, No cause of action ’ ” (citing Knights v. Piella, 111 Mich. 9 [ 69 N. W. 92 , 66 Am. St. Rep. 375 ]).

This instruction was properly refused. The record is absolutely barren of evidence tending to show a theft of' the suit case, unless the fact that it could not be found is *560 to be treated as such. In Baehr v. Downey, 133 Mich. 163 ( 94 N. W. 750 , 103 Am. St. Rep. 444 ), this court said:

“Under these circumstances, plaintiffs made out a prima, facie case by showing the property in the defendants’ possession, and refusal or neglect to return on demand. The onus of exoneration was then upon the defendants. 3 Am. & Eng. Enc. Law (2d Ed.), p. 750. The rule as there stated is that, when the chattels are not returned at all, the law presumes negligence, and casts upon the bailee the onus of showing he was not negligent ” (citing Knights v. Piella, supra; Donlin v. McQuade, 61 Mich. 275 [ 28 N. W. 114 ]).

The evidence given by defendant’s witnesses shows that the room in which the suit case was placed was left unattended for five or ten minutes at a time when trains arrived and departed, if any baggage had to be placed thereon. Three trains left the depot during the afternoon. "We think the question of the negligence of the defendant was, under the evidence, a proper one for the jury, and that the jury were properly instructed in relation thereto.

It is urged by defendant that plaintiff was negligent in failing to notify the baggageman of the value of the suit case, and in not calling for it at 4:20. As to the first point, we believe that his conversation with defendant’s servant (if true) was sufficient to warn defendant that the article was of considerable value. He instructed the man to be very careful as there were lots of goods in the case, and received the assurance of defendant’s agent that the company would be responsible and that he need not worry. Touching the second point, it appears that he •did make inquiry of defendant about four hours after he had deposited the suit case. It cannot be said that this delay is any evidence of negligence on the plaintiff’s part.

The other errors assigned have been considered, but require no discussion.

The judgment is affirmed.

Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.