ARTICLE VII. QUESTIONS OF PROCEDURE, EVIDENCE, AND DAMAGES IN ACTIONS FOR LOSS OF BAGGAGE. SECTION SECTION 3464. Parties to actions for loss of baggage. 3469. Measure of damage in actions for loss of baggage. 3465. Forms of action for lost bag- 3470. Compensatory damages in ad witness to show the contents 3472. Statutory penalties for the deof the lost baggage. tention of baggage. 3468. Res gestae. § 3464. Parties to Actions for Loss of Baggage.—A father is the proper plaintiff in an action for the loss of the baggage of his minor child.247 In Indiana, however, it was held that a minor might himself maintain an action, by his next friend, for the loss of his baggage containing clothing or other property given to him by his parents or others.248 As to the baggage of a married woman, containing her paraphernalia, the rule at common law would seem to be that the husband was the proper plaintiff in an action for its loss, because at common law the property in his wife's paraphernalia was vested in him.249 But in New York the wife's paraphernalia is made a legal separate estate by statute, and she is authorized to sue and be sued for contracts and injuries concerning it;250 and therefore a suit for the loss of her baggage is properly brought in her own name.251 In the same State it has been held that the right of action against a common carrier to recover the value of property intrusted to him is assignable. In such a case it is proper for the assignee to sue in his § 3465. Forms of Action for Lost Baggage.-The action for the recovery of damages for the loss of baggage may be brought either in the form of an action ex contractu for a breach of the contract of carriage, or in the form of an action ex delicto for the conversion of 247 Baltimore Steam Packet Co. v. Smith, 23 Md. 402; Grant v. Newton, 1 E. D. Smith (N. Y.) 95; Sloman v. Great Western R. Co., 67 N. Y. 208. 248 Perkins v. Wright, 37 Ind. 29. 249 McCormick v. Pennsylvania &c. R. Co., 49 N. Y. 304. 250 Acts N. Y. 1860, ch. 40; Amended Acts N. Y. 1862, ch. 170; 4 N. Y. VOL. 3 THOMP. NEG.-54 Stats. at Large (2d ed.), 515-517; 3 Rev. Stats. N. Y. 159-162. 251 Rawson v. Pennsylvania R. Co., 48 N. Y. 212; s. c. 2 Abb. Pr. (N. Y.) (N. S.) 220; Stoneman v. Erie R. Co., 52 N. Y. 429; Steamboat State of New York, 7 Ben. (U. S.) 450. 252 Merrill v. Grinnell, 30 N. Y. 594; Freeman v. Newton, 3 E. D. Smith (N. Y.) 246. 849 the passenger to comply with such a regulation, unless the regulation. is in itself of a reasonable and proper nature. A regulation forbidding the passenger, who pays an extra price for a stateroom on a steamboat, from taking his baggage with him into it, except at his own risk, is not a reasonable regulation so far as it relates to light baggage or hand satchels containing articles required for use in travel; and a failure of the passenger to comply with it will not exonerate the carrier from liability for the loss of such baggage.242 Not only must the regulation be reasonable, but it must appear that notice of it was brought home to the passenger.243 For example, if a passenger tenders his dog for transportation and it is put in the baggage car, under the directions of the train conductor, the company will be liable for its loss through negligence, notwithstanding it has a rule that it will not be responsible for dogs,-the passenger not being notified of the rule, or that the company declines such responsibility.2 The carrier, too, must extend to the passenger reasonable facilities for complying with the regulation.245 A notice posted in defendant's steamboat, that the owners will not be liable for baggage unless it is checked, will not protect them against the claim of a passenger who delivered his baggage to their agent on board the boat and demanded a check, but failed to obtain it because the person whose duty it was to give checks was not present.246 out extra charge, it shall be lawful for every passenger travelling upon the railway to take with him articles of clothing not exceeding forty pounds in weight and four cubic feet in dimensions; and that the company shall in no case be responsible for anything whatsoever carried upon the railway with any passenger, other than such passenger's articles of clothing not exceeding the weight and dimensions aforesaid; provided, that nothing contained in the act shall extend to make the company liable further than where, according to law, stagecoach proprietors and common carriers would be liable. Section 144 enables the company to make by-laws "for the good government of the affairs of the company, and for the management of the said undertaking." The company made a by-law that every first-class passenger should be allowed to carry one hundred and twelve pounds of luggage free of charge, but that the company would not be responsible for the care of the same unless booked and the carriage 244 thereof paid for. It was held that the company had no power to make this by-law, since it was in contravention of the 169th section: Williams v. Great Western R. Co., L. R. 10 Exch. 15. See, also, Munster v. South-Eastern R. Co., 4 C. B. (N. S.) 676; s. c. 4 Jur. (N. S.) 738; 27 L. J. (C. P.) 308. 242 Macklin v. New Jersey Steamboat Co., 7 Abb. Pr. (N. Y.) (N. S.) 229; s. c. 9 Am. L. Reg. (N. S.) 237. 243 Baldwin v. Collins, 9 Rob. (La.) 468; Macklin v. New Jersey Steamboat Co.. 7 Abb. Pr. (N. Y.) (N. S.) 229; s. c. 9 Am. L. Reg. (N. S.) 237: New York &c. R. Co. v. Fraloff, 10 Blatchf. (U. S.) 16; s. c. 20 Alb. L. J. 409; 9 Cent. L. J. 432; 8 Reporter 801; Thomp. Carr. Pass. 502; s. c. aff'd 100 U. S. 24. 244 Kansas City &c. R. Co. v. Higdon, 94 Ala. 286; s. c. 14 L. R. A. 515; 10 South. Rep. 282. 245 Great Western R. Co. v. Goodman, 12 C. B. 313; 16 Jur. 862; 21 L. J. (C. P.) 197. 240 Freeman v. Newton, 3 E. D. Smith (N. Y.) 246. ARTICLE VII. QUESTIONS OF PROCEDURE, EVIDENCE, AND DAMAGES IN ACTIONS FOR LOSS OF BAGGAGE. 3464. Parties to actions for loss of 3469. Measure of damage in actions for loss of baggage. baggage. 3465. Forms of action for lost bag- 3470. Compensatory damages in ad § 3464. Parties to Actions for Loss of Baggage.-A father is the proper plaintiff in an action for the loss of the baggage of his minor child.247 In Indiana, however, it was held that a minor might himself maintain an action, by his next friend, for the loss of his baggage containing clothing or other property given to him by his parents or others. 248 As to the baggage of a married woman, containing her paraphernalia, the rule at common law would seem to be that the husband was the proper plaintiff in an action for its loss, because at common law the property in his wife's paraphernalia was vested in him.249 But in New York the wife's paraphernalia is made a legal separate estate by statute, and she is authorized to sue and be sued for contracts and injuries concerning it;250 and therefore a suit for the loss of her baggage is properly brought in her own name.251 In the same State it has been held that the right of action against a common carrier to recover the value of property intrusted to him is assignable. In such a case it is proper for the assignee to sue in his § 3465. Forms of Action for Lost Baggage.-The action for the recovery of damages for the loss of baggage may be brought either in the form of an action ex contractu for a breach of the contract of carriage, or in the form of an action ex delicto for the conversion of 247 Baltimore Steam Packet Co. v. Smith, 23 Md. 402; Grant v. Newton, 1 E. D. Smith (N. Y.) 95; Sloman v. Great Western R. Co., 67 N. Y. 208. 248 Perkins v. Wright, 37 Ind. 29. 249 McCormick v. Pennsylvania &c. R. Co., 49 N. Y. 304. 250 Acts N. Y. 1860, ch. 40; Amended Acts N. Y. 1862, ch. 170; 4 N. Y. VOL. 3 THOMP. NEG.-54 Stats. at Large (2d ed.), 515-517; 3 Rev. Stats. N. Y. 159-162. 251 Rawson v. Pennsylvania R. Co., 48 N. Y. 212; s. c. 2 Abb. Pr. (N. Y.) (N. S.) 220; Stoneman v. Erie R. Co., 52 N. Y. 429; Steamboat State of New York, 7 Ben. (U. S.) 450. 252 Merrill v. Grinnell, 30 N. Y. 594; Freeman v. Newton, 3 E. D. Smith (N. Y.) 246. 849 the property.253 But whatever form is adopted, once selected. i carries with it all the incidents of the action. Thus, in an Eng case, where the declaration was in form ex contractu, a statute priving the plaintiff of costs in an action founded on contract, in the event of recovering less than £20,254 was held to apply and to pETET the recovery of costs, though the complaint might have been frizi as sounding in tort.255 And in Pennsylvania, where the process of foreign attachment will not lie upon a demand founded in fort, the court held that it would not lie against common carriers to recover for the loss of a trunk, where the form of the declaration was in tort and not ex contractu.256 § 3466. Burden of Proof in such Actions.-The contract of the carrier is, to carry the baggage, and at the end of the journey to deliver it safely into the hands of the passenger. It is therefore enough for the passenger, in an action for its loss, to show delivery to the carrier, and a failure to redeliver it at the end of the journey: the burden of showing that the loss occurred under circumstan which will excuse the carrier for default, rests upon the latter.*** But such is not the rule where the carrier, from the circumstances of the case, is liable only as a gratuitous bailee: in such a case the plaintiff must prove negligence. Thus, the defendant, a railroad company, failed to deliver to a connecting line a passenger's valise 253 Weed v. Saratoga &c. R. Co., 19 Wend. (N. Y.) 534; Porter v. Hildebrand, 14 Pa. St. 129; Bayliss v. Lintott, L. R. 8 C. P. 345; s. c. 42 L. J. (C. P.) 119; 28 L. T. (N. S.) 666. 254 County Courts Act, 30 & 31 Vict., ch. 142, § 5. 255 Bayliss v. Lintott, L. R. 8 C. P. 345; s. c. 42 L. J. (C. P.) 119; 28 L. T. (N. S.) 666. 250 Porter v. Hildebrand, 14 Pa. St. 129. Under a complaint for damages in "breaking a trunk" and in delay of "goods checked," evidence of damage to ordinary baggage is admissible: International &c. R. Co. v. Philips, 63 Tex. 590. In an action to recover the value of sample trunks and their contents, resting on the custom of railways to carry such trunks as baggage, the complaint must not only show the custom or manner of carrying trunks of commercial travellers as baggage, but must aver particularly the custom, so as to cover all the facts in the case: McKibbin V. Great Northern R. Co., 78 Minn. 32: s. c. 80 N. W. Rep. 1052. 257 Camden &c. R. Co. v. Baldauf. 16 Pa. St. 67: Van Horn v. Kernt 4 E. D. Smith (N. Y.) 453: B more Steam Packet Co. v. Smith Md. 402; Burnell v. New York & R. Co., 45 N. Y. 184; Garvey v. Com den &c. R. Co.. 1 Hilt. (N. YJ 2 Steamboat State of New York. 7 Ber. (U. S.) 450. See, also, Myerson v Woolverton, 9 Misc. (N. Y) IM s. c. 61 N. Y. St. Rep. 78; 29 N. Y. Supp. 737; Pennsylvania Co. v. Co hen, 66 Ill. App. 319; s. c. 1 Chic. L J. Wkly. 581; The Majestic. 155 L. S. 375; s. c. 17 Sup. Ct. Rep 597 41 L. ed. 1039; 29 Chic. Leg. News 281; Rome R. Co. v. Wimberly Ga. 316; Wheeler v. Oceanic &c. Nar. Co., 125 N. Y. 155. It has been hel that, in an action for failure to de liver baggage, the complaint reed not allege presentation of a check because the non-delivery of the check would be matter of defense Cleveland &c. R. Co. v. Tyler. & Ind App. 689; s. c. 35 N. E. Rep. 323. containing merchandise only. Such a failure was not evidence to charge the defendant with negligence, who had sold the ticket and checked the baggage over both lines.258 If the baggage is lost while in the custody of the passenger, and while he is asleep, and his action proceeds on the theory of charging the carrier with responsibility for its loss on the footing of negligence, then he makes out a prima facie case by proving the loss and by proving a state of circumstances tending to show that, but for the negligence of the servants of the carrier, the loss would not have happened." 259 3467. Competency of Plaintiff as a Witness to Show the Contents of the Lost Baggage.-Before the changes effected by the codes of procedure which have been enacted in almost all of the States, the question of the competency of the plaintiff as a witness to show the contents of his baggage was one of considerable importance, and there are many adjudications upon the subject. As is well known, at common law a party was not permitted to testify in his own behalf; but in the case of an action for the loss of baggage, it is frequently impossible for any other person to prove the contents of it; and hence, it was repeatedly held that the plaintiff was a competent witness in that respect ex necessitate rei.260 This rule was extended, not only. to an enumeration of the articles, but to the proof of their value.26 But in Illinois the court confined the plaintiff's testimony to an enumeration of the articles contained in his package.262 On the same principle, the rule which incapacitated the husband or wife as a witness for each other, was relaxed in these cases.203 But these relaxations of the strict rule of the common law were not favored by the courts, and it was only in those instances where no other evidence was attainable, that they were permitted.264 This stringency in enforcing the rule was extended to those cases where an assignment of the claim had been made, and it appeared that the assignment was colorable merely, made for the purpose of enabling the owner 25 Stimson v. Connecticut River R. Co., 98 Mass. 83. But see Steers v. Liverpool &c. Steam Co., 57 N. Y. 1. 25 Bevis v. Baltimore &c. R. Co., 26 Mo. App. 19. 200 Herman v. Drinkwater, 1 Me. 27; Whitesell v. Crane, 8 Watts & S. (Pa.) 369; Illinois &c. R. Co. v. Copeland. 24 Ill. 332; Dibble v. Brown, 12 Ga. 217; Doyle v. Kiser, 6 Ind. 242; Garvey v. Camden &c. R. Co., 1 Hilt. (N. Y.) 280; Bingham v. Rogers. 6 Watts & S. (Pa.) 495; Cadwallader v. Grand Trunk R. Co., 9 Lower Canada Rep. 169; Macdougall v. Torrance, 4 Lower Canada Jur. 132. But see David v. Moore, 2 Watts & S. (Pa.) 230; Snow v. Eastern R. Co., 12 Met. (Mass.) 44. 261 Whitesell v. Crane, 8 Watts & S. (Pa.) 369; Bingham v. Rogers, 6 Watts & S. (Pa.) 495; Mad River &c. R. Co. v. Fulton, 20 Ohio 318. 262 Illinois &c. R. Co. v. Copeland, 24 III. 332; Illinois &c. R. Co. v. Taylor, 24 Ill. 323; Davis v. Michigan &c. R. Co., 22 Ill. 278. 263 McGill v. Rowand, 3 Pa. St. 451; Smith v. Boston &c. Railroad, 44 N. H. 325. 264 Dibble v. Brown, 12 Ga. 217. |