
    The First National Bank of Greenfield v. The Marietta and Cincinnati Railroad Company.
    While a passenger train of a railroad company was crossing a bridge, constructed on the line of its road, over a creek, the bridge gave way, its central pier having been undermined by the waters of the creek, and the train was precipitated into the creek, killing a passenger who had about his person a package of money which he was- carrying for the plaintiff. By this catastrophe the stoves on the train were overturned, setting fire to the debris of the ears, and consuming the package of money with the body of the passenger. Upon suit brought by the owner of the money to recover from the railroad company for the value of the package, his petition stated the foregoing facts, and charged that the accident occurred through the negligence and unskilfulness of the defendant in the construction and maintenance of the bridge and in the running of the train. On demurrer to this petition on the ground that it did not state facts sufficient to constitute a oause of action — Held :
    
    1. That the case stated in the petition does not come within the operation of the maxim which requires every one so to conduct his business as not to do injury to another.
    2. That the defendant as a common carrier of passengers is not liable for the loss of money kept in the sole custody of a passenger, and which he carries, without notice to the defendant, for a purpose unconnected with the expenses of the journey, notwithstanding such loss was occasioned by the negligence of defendant’s servants; and that the demurrer to the petition was well taken.
    Error to the superior court of Cincinnati.
    On the 3d day of October, 1865, the plaintiff in error, who was also plaintiff below, filed in the superior court of Cincinnati a petition against the defendant, in which it is alleged that the defendant is a corporation created by the laws of this State, and, as such, owned and operated a railroad from Marietta to Cincinnati through the town of Greenfield, which crossed a certain creek, called Lee’s Creek, by means of a bridge built by the defendant, and that the defendant was a common carrier of passengers and goods over its railroad by means of locomotives and ears; that on the 14th day of February, 1865, the plaintiff was the owner and possessor of a package of legal-tender notes, issued by the United States, to the amount of four thousand dollars, and wishing to transmit the same to Cincinnati, delivered them to Thomas G. McElroy, its agent, to be carried by him to said city; that the said McElroy, for that purpose, went on and into one of the cars of the defendant at Greenfield, one of a train provided by defendant for that pimpose, as a passenger, to be carried by the defendant over its railroad to Cincinnati, with said package of money of the plaintiff in his possession, and thereupon the defendant caused its locomotive and train of cars, with the said McElroy therein, having on his person the said package of notes, to go and be drawn upon the said bridge to cross the said creek and proceed to Cincinnati; that said bridge was so carelessly, negligently, and unskilfully constructed and maintained by the defendant, that the central pier became and was undermined by the waters of the creek; and fell, whereby the bridge became insufficient to support the weight of the locomotive and train of ears so upon the same as aforesaid; and the defendant so carelessly, unskilfully, and negligently ran the said train upon the approach to said bridge, that although the said pier had fallen, and the bridge had thereby been rendered unsafe for the passage of the said train six hours before its arrival, yet the defendant did not cause the same to stop, but suffered the same to proceed upon the said bridge, for the purpose of crossing the same ; by reason whereof, the weight of the locomotive and train of cars crushed the bridge and fell down into the creek, whereby the said McElroy, so upon the said car, was killed, and the ruins of the cars having been set on fire by the overturning of the stoves therein, his body was consumed, and the package of money burnt up and destroyed; to the plaintiff’s damage, etc.
    To this petition the defendant demurred, on the ground that the facts stated were not sufficient to constitute a cause of action.
    This demurrer was sustained, and judgment rendered for the defendant.
    To reverse this judgment a petition in error was filed in this court.
    
      S. & R. R. Matthews (with Mills Gardner) for plaintiff in error:
    I. No objection can be ’made to the right of recovery in this case, on the ground that the plaintiff is not the proper party to sue, or that no right of action exists in favor of a general owner of personal property permanently damaged or destroyed while in the possession of an agent or bailee.
    Even in cases of contract, the right of the general owner to maintain an action, although the contract was made with the bailee and in his own name, was affirmed by the supreme court of the United States in the case of The New Jersey Steam Navigation Company v. The Merchants’ Bank of Boston, 6 Howard, 344.
    The case of Puterbaugh v. Reasor, 9 Ohio St. 488, was an action in tort for an injury to personal property while in the hands of a bailee.
    The case of Berkshire Woollen Company v. Proctor, 7 Cushing, 424, was an action against an innkeeper for money stolen from the plaintiffs’ agent while a guest. See also Beal v. Morris, Yelverton, 162, and notes and cases cited in the American edition; S. C. Cro. Jac. 224; Bac. Abr. Inns and Innkeepers, C. 5; Towson v. Havre de Grace Bank, 6 Har. & Johns. 47, 53; Bennett v. Miller, 5 T. R. 273; Mason v. Thompson, 9 Pick. 280; Epps v. Hinds, 27 Miss. 657; Needles v. Howard, 1 E. D. Smith, 54; Mears v. London c& Southwestern Railway Company, 11 Com. Bench, N. S. 850; Tancred v. Allgood, 4 Hurlst. & Norman, 438, and Lancashire Wagon Company v. Fitzhugh, 6 Hurlst. & Norman, 502.
    II. We come, then, immediately to the main question — do the facts stated in the petition constitute a cause of action ?
    We claim that the present plaintiff has a right to recover, provided McElroy himself, if he had survived and had been its owner, could have recovered for the loss of the money.
    And upon that supposition we base the right to recover upon two distinct grounds :
    1. That the plaintiff’s property being, at the time of its destruction, where it might have been and was lawfully — that is, in the exercise by the plaintiff of a legal right in reference to it — and being, without any fault of the plaintiff, destroyed by the negligence of the defendant, in the management of its own .property, a right of action accrues for the damage, by virtue of the maxim, sic uiere tuo, ut dlienum non loedas.
    
    2. That the duty which the defendant, as a common carrier of passengers, owed to McElroy, to exercise care and skill in transporting Mm safely, extends to all articles of value which at the time he had lawfully in Ms possession or about his person, so as to entitle him, or its owner, in case of injury resulting from a breach of that duty, to recover compensation for the damage done to such property.
    The first proposition is founded on a right to recover, for ,the .destruction and loss of this property, without any reference to the accidental'< and inmaterial circumstance, that, at 
      
      the time, it was situated in one of the defendants cars, on the ground, that being lawfully where it was, it was destroyed by the negligence of the defendant in the management and use of its own property.
    The second proposition is founded on the idea that the damages which may be recovered by a passenger, from a carrier, for negligence in carrying him, include loss or destruction of his personal property, at the time lawfully in his possession ; and that the right to recover, for any such loss, vests in the owner of the property, although he may not be the passenger himself.
    The principles which lie at the foundation of the right to recover for wrongful negligence, have been fully stated on several occasions by this court. Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio St. 175; C. C. & C. R. R. Co. v. Keary, 3 Ohio St. 205; Dayton v. Pease, 4 Ohio St. 96.
    See also Broom’s Commentaries on the Common Law, 658, 661; Langridge v. Levy, 2 Mees. & Wels. 519; Winterbottom v. Wright, 10 Mees. & Weis. 109; Gerhard v. Bates, 2 Ellis & Black. 476; Longmeid v. Holliday, 6 Exch. 761; Dixon v. Bell, 5 M. & Selw. 198; Blakemore v. Bristol & Exeter Railway Co., 8 Ellis & Black. 1035; Mars v. L. & S. W. Railway Co., 11 Com. Bench, N. S. 854; Farrant v. Barnes, 11 Com. Bench, 553; Brass v. Maitland, 6 Ellis & Black. 470; Williams v. East India Co., 3 East, 192; Thomas v. Winchester, 10 New York (2 Selden), 397; Indermauer v. Dames, Law Reports, 1 Com. Pleas, 274; Lancaster Canal Co. v. Parnaby, 11 Ad. & El. 223; Chapman v. Rothwell, E. B. & E. 168; Southcote v. Stanley, 1 H. & N. 247; Barnes v. Ward, 9 Manning, Granger & Scott, 393; Hadley v. Taylor, Law Reports, 1 Com. Pleas, 53; Vaughan v. Menlove, 3 Bing. New Cases, 468; Vaughan v. Taff Vale Railway Co., 3 H. & N. 743; 5 H. & N. 679; Piggott v. Eastern Counties Railway Co., 3 C. B. 229; Aldridge v. Gt. West Rail. Co., 3 M. & Gr. 515; Fremantle v. Lond. & N. West Rail. Co., 10 C. B. N. S. 89.
    The result of the whole matter may be thus summed up:
    In all actions for torts, on the ground of negligence, the negligence alleged and proved must consist in the breach of a duty requiring care, either towcvrd the public, or the individual complaining / the public, in the first case, meaning all persons who, in the exercise of legal rights, are placed in a situation where they may be affected by the acts or omissions of the defendant; in both cases, it being required that the plaintiff shall not himself have been guilty of neglect, contributing to his loss; but in neither case, being material whether the negligence complained of consists in the commission of acts, which ought not to have been done, or the omission of those which ought to have been done.
    This is a statement of doctrine more favorable to the defendant than is warranted, because there are many eases in which it is held that the plaintiff’s right to recover is not defeated by the fact that, at the time the injury was inflicted, he was not in the exercise of a legal right. The duty of reasonable care in reference to the public, is held to extend even, in some cases, to u trespasser, and when, but for his trespassing, the damage would not have happened. Of this, an example is afforded in the case of Barnes v. Ward, above cited. And such, also, is the doctrine of this court in the case of Kerwhacker v. C. C. & C. R. R. Co., 8 Ohio St. 195.
    The first inquiry then is, what duty requiring care in the management of its property did the defendant owe to the public ?
    It was the owner of a railroad, of the bridge over Lee’s Creek, of the locomotive and train which it caused to run upon it.
    As respects the public, it was under obligation to so construct, maintain, and operate this road, bridge, and train, with such ordinary and l’easonable skill, care, and prudence, that individuals, in the ordinary exercise of their lights as belonging to, or constituting parts of, the general public, should not be injured in person or property.
    If McElroy had been driving under this bridge, supposing that it had spanned a common road, in a buggy, and, in the manner described in the petition, the bridge and train had been precipitated upon him, does any one doubt the defend ant’s liability to him for all his losses thereby caused, including the destruction of his horse, buggy, and any personal property in his possession at the time, or upon his person ?
    If he had been driving along a public road near it, and a spark from the defendant’s locomotive, through its unskilful construction or careless management, had set fee to his clothing and burned this package of money, would there be any reason to doubt the liability of the defendant in that case ?
    Now, if being a mere stranger, not related to the defendant at all,'except as one of the general public, he would be entitled to recover for losses caused by such negligence, his right is not taken away by the fact that he was at the time in the defendant’s train as a passenger. Dalyell v. Tyrer, Ellis, Blackburn & Ellis (Q. B.), 899 (96 E. C. L.); Philadelphia & Reading R. R. Co. v. Derby, 14 Howard, 485.
    So far as the present proposition is concerned, the grownd of the action is not the absence of that degree of ca/re due to a passenger, but the want of that ordvnary care which the defendant was bound to observe toward the whole world, at least toward all affected, or that might be affected by.its acts and omissions.
    Neither can it be said, that the plaintiff’s right to recover, if it otherwise would exist, is prejudiced by any act or omission of its own. There is nothing in the statement of the cause of action that opens the way to the inference that it was guilty of any fault. It is true that it is not alleged that the defendant had notice or knowledge of the fact of the presence of the money in a situation where it might be injured. But, in view of the present argument, that was not necessary. It is not the case of a bailment of the very property lost, where there would be a duty upon the defendant in reference to that particular property. The duty was to all property of all persons, not only such as was known to be in the way of danger, but to any that might, in its lawfid use, be brought into danger.
    It cannot be claimed that want of notice, in the present case, operated as a fraud upon the defendant, for that could only be where, if he had known the fact, he would have altered his conduct in consequence of it. Rut here the defendant is charged with negligence, in which it had no right to indulge under any circumstances, or toward any person or property.
    We are asking to enforce against the defendant the duty of ordinary care in the management of its own property, not any care whatever directed toward the plaintiff’s; and want of notice, as to the plaintiff’s, could not, by possibility, affect the question. We claim nothing, in the present aspect of the question, by virtue of any special relation between the defendant and the plaintiff’s property.; therefore, knowledge of the fact of its presence is immaterial. We now claim only a right to recover, on the ground of the general relation between the defendant and the whole public, by virtue of which the law imposes the duty of using and managing its property and business in such a reasonable and careful way, as that it shall not be the means of danger and injury to any portion of the public, in the ordinary exercise of its legal rights. It did know that the want of that proper care might injure some person or thing. That was knowledge enough to require from it the performance of its legal duty, and any violation or neglect of it was at its own risk, and renders it liable for its natural consequences.
    Neither can it be urged that the plaintiff, in reference to the money destroyed, was not, at the time of its destruction in the ordinary exercise of a legal right. Certainly there is no ground to contend that it was not legitimate for the plaintiff to send the package upon the person of its agent. As Ranney, J., says, in the case of C. C. & C. R. R. Co. v. Keary, 3 Ohio St. 201, “ Whatever is not prohibited may be lawfully done.”
    We claim, by the foregoing considerations, to have established the plaintiff’s right of action — to have proved, from the facts stated in the petition and the principles of law applicable to them, that the defendant, as the owner and manager of its railroad, its bridge, and its train of cars, owed tc the public the duty of constructing, maintaining, and operating them with ordinary skill and care; that this duty extended to and embraced all persons and property that might, in the exercise of legal rights, come within the sphere of its operations or the reach of its power, and so be affected by its acts and- omissions; that this duty was not performed, but omitted; that, in consequence of such neglect, the plaintiff’s property, being lawfully where it was, and without its fault, was destroyed, and for that damage it is entitled to compensation.
    III. We pass now to the consideration of the second ground on which we base the plaintiff’s right to recover. The proposition, as already stated, is, that the duty of the defendant toward McElroy, as a passenger, to exercise skill and care in his transit, or, at least, to refrain from doing him positive harm, extends to all articles of value which, at the time, he had lawfully in his possession or about his person, so as to entitle him, as its owner, in case of injury resulting from a breach of that duty, to recover compensation for the damage done to such property.
    To test the truth and legal accuracy of ibis statement, let us, by supposition, vary the facts in particulars which, it will be admitted, are not material, and trace the legal rights of the parties.
    Suppose that McElroy had been severely injured in body, but not killed, and that this money destroyed, of which he was the owner, had been in a travelling bag, held in his hands, and had in his own name brought an action, stating all the facts — -what would he have been entitled to recover?
    
    He would have been entitled to recover, in the first place, damages for his personal injuries, compensation for his suffering, and for the loss of his time, and the profits of his business, depending upon his personal attention, and for the expenses of his cure.
    He would have been entitled to compensation for his wearing apparel, actually in use, including his watch, other personal ornaments customarily worn, and any reasonable sum of money carried to pay his expenses as a traveller.
    He would have been entitled to recover the value of his baggage, delivered to the defendant as such to be carried, to the extent of an ordinary and reasonable wardrobe for one in his station in life, and including such articles as are usually found in the paraphernalia of a traveller.
    With respect to articles in the travelling bag, usually embraced under the head of baggage, there might be dispute; but according to the decision in the case of Le Conteur v. London & South-western Railway Company, Law Rep. 1 Q. B. 54, the plaintiff would be entitled to’ recover for them.
    See, also, Marshall v. York, Newcastle, and Berwick Railway Company, 11 Com. Bench, 655; Davidson v. Graham, 2 Ohio St. 13; Graham & Co. v. Davis, 4 Ohio St. 362; Wilsons v. Hamilton, 4 Ohio St. 722.
    It cannot be answered to this view, that the defendant’s liability never arose in this case, because the package of money was not delivered into its care and custody to be carried. It was delivered into the care and custody of the defendant, although .upon the person of the owner’s agent, just as his person was delivered into the care and custody of the defendant, a delivery which necessarily carried with it his apparel and all property in his personal" possession at the time.
    Nor is it any just objection that no consideration was paid or promised for the labor or risk of its transportation. It involved no labor on the part of the defendant, for it was in the personal custody of the owner; it did not increase the risk, for that incurred in receiving the passenger was the highest known to the law, so far as it involved the degree and amount of skill and care required from the defendant.
    And the want of notice, as to the presence of such property, equally fails as a ground of defence for the same reason. See Jordan v. Fall River Railroad Co., 5 Cushing, 74; Brooke v. Pickwick, 4 Bing. 218; Batson v. Donovan, 4 B. & Ald. 21; Johnson v. Stone, 11 Hump. 419; 21 Ill. 278; Smith and Wife v. The Boston & Maine Railroad Co., 44 N. H. 325; Riley v. Horne, 5 Bing. 217; Sleat v. Fagg, 5 B. & Ald. 342; Butcher v. The London & South-western Railway Co., 16 Com. Bench, 13; Dansay v. Richardson, 3 El & Bl. 170; Great Northern Railway v. Shepherd, 8 Exch 30 Richards v. London, Brighton & South Coast Railway Co., 7 Com. Bench. 839, Walker v. Jackson, 10 Mees. & Wels. 161; Hinton v. Dibdin, 2 Ad. & El. 646 (N. S.); Wilson v. Butt, 11 Mees. & Wels. 113; Wyld v. Pickford, 8 Mees. & Wels. 113; Holder v. Soulby, 8 Com. Bench, 255; Manning v. Wells, 9 Humph. 748; Berkshire Woollen Co. v. Proctor, 7 Cushing, 424; Kent v. Shuckard, 2 B. & Ald, 803; Wilkie v. Bolster, 8 E. D. Smith (N. Y. Com. Pleas), 327; Wilson v. Newport Dock Co., 12 Jurist, N. S. 233 (5 Am. Law Reg. 748); Knight's Adm'r v. Quarles, 2 Brod. & Bing. 102; 1 Williams on Ex’rs, 712 (5th Am. Ed.); Broom’s Legal Maxims, 702; Drake v. Beckham, 11 M. & W. 319.
    The case of Alton v. The Midland Railway Company, 11 Jurist, N. S. 672, can have no application to the one at bar.
    IV. The damages for which recovery is sought are not too remote. The question of remoteness is simply a question whether the wrong and the loss are counted as cause and effect. Rigby v. Hewitt, 5 Exch. 242; Harrison v. Berkley, 1 Strobhart, 525, 549; Leame v. Bray, 3 East, 599; Weaver v. Ward, Hob. 134; Dickenson v. Watson, 2 Jones, 205; Costle v. Duryea, 32 Barb. 480; Dixon v. Bell, 5 M. & S. 198; Greenland v. Chaplin, 5 Exch. 243; Smeed v. Ford, 1 El. & El. 602; Gibbons v. Pepper, 1 Lord Raymond, 38; Vanderburgh v. Truox, 4 Denio, 464; Gerhard v. Bates, 2 El. & El. 490; Guille v. Swan, 19 Johns. 381; Powell v. Salisbury, 2 Y. & Jervis, 391; Sedgw. on Damages, 86 et seq.; Gunter v. Astor, 8 Moore, 12; Lumley v. Gye, 2 El. & Bl. 236; Wilson v. Newport Dry Dock Co., 12 Jurist, N. S. 233 (5 Am. Law Reg. 748); Jones v. Boyce, Stark. 495; Davis v. Garrett, 6 Bing. 716; Scott v. Shepherd, 2 W. Bla. 892.
    Hpon any rule that can be applied, we see no room for any question in regard to the remoteness of the damages for which we seek compensation. The loss of the money was not, it is true, a necessary result of the train being precipitated into Lee’s Creek, for such an accident might have taken place without that particular result. But the burning of the money was its natural consequence, for it is the usual consequence of the upsetting of a stove containing fire that it should set fire to any combustible with which it comes in contact; and it was the wvmediate consequence of the negligence of the defendant, which produce simultaneously, uno iotu, all the circumstances of ruin and destruction, both of life and limb, and property, which constituted the transaction a catastrophe and a disaster.
    We are aware that in the prosecution of this action we encounter the pre-judgments that arise naturally in consequence of its novelty. The objection, of course, has its weight, but is far from conclusive. It furnishes no reason against the arguments by which the claim is supported. It is only a reason why those arguments should be thoroughly and candidly tested.
    
      Hoadly, Jackson & Johnson for defendant in error:
    We do not find, in the very elaborate and able arguments of plaintiff’s counsel, any reason to distinguish this case from that which might have been brought had McElroy laid the money upon the floor of the car, and relied upon advising his correspondent in Cincinnati by telegraph where to look for the package upon the arrival of the train, the money having been consumed, before arrival, by fire, under circumstances similar to those detailed in the petition. Nor from that which might have been instituted, had the package been stolen from the car floor, in the case last supposed, and destroyed by negligence of the company while on the person of the thief.
    It cannot be successfully contended that if this money had been in McElroy’s carpet bag or trunk, in the baggage car, checked by the company’s agent at Greenfield to Cincinnati, contents not disclosed, there could be a recovery ex contracts. In such case the money would not have been in the charge of the defendant as common carrier, and no action could be maintained on any supposed promise to transport it.
    The authorities are very numerous to the effect that the term “ baggage ” or “ luggage ” does not include money in large quantities,' but is restricted to tbe passenger’s clothing and ordinary travelling paraphernalia or “ necessary appendages,” perhaps including money sufficient for travelling expenses. Jones v. Voorhees, 10 Ohio, 150; Mad River Railroad Company v. Fulton, 20 Ohio, 318; Orange County Bank v. Brown, 9 Wendell, 85; Hawkins v. Hoffman, 6 Hill, 586; Hickox v. Naugatuck Railroad Company, 31 Conn. 281; Bell v. Drew, 4 E. D. Smith, 59; Duffy v. Thompson, Ib. 178; Doyle v. Kiser, 6 Indiana, 242; Bomar v. Maxwell, 9 Humphreys, 621; Fowler v. Dorlon, 24 Barbour, 385; Chicago & Aurora R. R. Co. v. Thompson, 19 Illinois, 578; Davis v. Michigan, etc., R. R. Co., 22 Illinois, 278; Hutchings v. Western, etc., R. R. Co., 25 Georgia, 61.
    Nor can it be successfully contended that an action on the case could, under such circumstances, be brought against the carrier on his public legal duty safely to transport. For the legal duty and the obligation by contract (except where the latter is specially restricted) ai’e exactly equivalent. Wherever the legal duty exists, there arises a corresponding implied contract. The pleader has his choice between case and assumpsit.
    These propositions are not disputed in cases where the carrier fails to account for and deliver the money, and the canse of the non-delivery is unknown or accidental. But it is sought to avoid their force by establishing an exception in cases .of actual negligence, on two grounds — -first by an application of the maxim, “ sic wtere tuo, ut alienum non Icedas / ” and, secondly, upon the theory that the duty of the carrier to the passenger, to exercise care and skill in transporting him safely, extends to all articles of value, rightfully on the passenger’s person or with his baggage.
    We are unable to see that the question, here treated under the form of a second proposition, is separable from the first. This plaintiff cannot maintain any action whatever ex contractu against these defendants. Under similar circumstances the plaintiff failed, and for this very reason, that there was no privity of contract, in Weed v. Saratoga, etc., R. R. Co., 
      19 Wend. 534. It was there held that no action would lie ex contractu by a merchant against a carrier, for the merchant’s money lost with the trank of his clerk, who had been a passenger.
    The only right of the plaintiff, then, being ex delicto, it does not seem to us that he gains any advantage from a claim founded on a supposed public duty of carriers to bestow care in the transportation of property, of their charge of which, or even of its existence, they neither know nor are bound to know. Looked upon as a contract, 'it is a bailment of a new nature, and lacks what has been supposed to be essential to all contracts, viz., the consent or meeting of minds. Considered as relations of persons creating legal duties, the circumstances do not give rise to any higher obligation than that described by the maxim, “ sic utere Pioo ut álÁenum non loadas.” Whatever prevents the application of that maxim, will as well defeat the attempt to recover upon the second ground so elaborately argued for the plaintiff.
    The question is this — which of. the two parties has so used the property or means at his command as to injure the other, —he who was guilty of the neglect, or he who exposed his property to hazard in endeavoring to gain an unfair advantage ? Can one who secretes valuables in his trunk or upon his person, and thus evades the duty of compensating the carrier for the hazards run, secure the advantage he seeks, viz., that of compelling the carrier to take the risk? If allowed thus surreptitiously to impose the hazard upon the carrier, is he not permitted to violate the maxim, and so to use his own as to injure another ?
    And again, in the law of bailment, it is well settled that a gratuitous bailment exacts the least diligence, and results in liability only for gross negligence. But here is a bailment, in which, in addition to the want of consideration which characterizes the depositwm or ma/ndatum of the civilians, there is a total absence of consent by the party sought to be held liable, and the presence of fraud or at least negligence on the plaintiff’s part.
    
      Whether, then, the claim of the plaintiff be considered as founded in contract or legal duty, the answer is the same, viz., that he has himself so behaved as to be justly deprived of the right to recover.
    To escape the small charge for transportation in the express car attached to the same train, a passenger carries money, jewelry, gems, samples of merchandise, or any other personal property, not “ baggage,” in his trunk or carpet-bag, concealing the contents from the carrier. If he is entitled to recover for its loss or destruction under such circumstances, should not a new title be added to those which describe the methods of acquiring rights, viz., Title by circumvention %
    
    See Pardee v. Drew, 25 Wendell, 459; Farrant v. Barnes, 11 Com. Bench, 553; S. C. 8 Jurist, N. S. 868; Marble V. City of Worcester, 4 Gray, 395.
    This money was unlawfully where it was, and no duty or obligation to protect it existed. The carrier might “ not be justified in throwing it overboard,” as Chief-Justice Jervis says, in 11 Com. Bench, 555, but he is not liable for negligence. See, also, Allen v. Sewall, 2 Wendell, 327; Sewall v. Allen, 6 Wendell, 335; Citizens Bank v. Nantucket Steamboat Co., 2 Story, 16, 54; Orange County Bank v. Brown, 9 Wendell, 116, Tower v. Utica and Schenectady Railroad Co., 7 Hill, 47; Richards v. Wescott et al., 2 Bosw. 589; Chicago and Aurora Railroad Co. v. Thompson, 19 Ill. 578, 594; Davis v. Michigan Southern Railroad Co., 22 Ill. 278; Hutchings & Co. v. Western & Atlantic Railroad Co., 25 Georgia, 64; Miles v. Cattle et al., 6 Bing. 473, most resembles the case at bar; Gibbons v. Paynter et al., 4 Burr. 2298; Great Northern Railway Co. v. Shepherd, 8 Exch. 30; Cahill v. London and N. W. Railway Co., 13 Com. Bench, N. S. (106 Eng. Com. Law), 818; Belfast, etc., Railway Cos. v. Keys, 9 House of Lords Cases, 556; S. C. 8 Jurist, N. S. 367; Doyle v. Kiser, 6 Ind. 245.
    From a review of the American and English cases, we draw the following conclusions :
    
      First. That the implied contract to transport the baggage of a passenger does not extend to money, further than such amount as may be necessary to cover necessary expenses, and this, whether the money is carried on the person or in the baggage.
    
      Secondly. That a passenger desiring to hold the carriel liable for the safety of such money, should disclose its existence, and proffer a suitable compensation for the hazard.
    
      Thirdly. That if the carrier is not a common carrier of money, it is the duty of the passenger to seek some other means of conveyance for his property.
    
      Fourthly. That the placing such money in the baggage, or bringing it into the carrier’s car or coach, is a fraud upon the carrier.
    
      Fifthly. That this fraud is a complete defence to any action ex contractu against the carrier.
    
      Sixthly. That it is also a complete defence to any action ex delicto for negligence, or any such omission or non-performance of duty as is here charged.
    In Henshaw v. Noble et al., 7 Ohio St. 226, the negligence charged was of the same species as here claimed, and it was considered to be a nonfeasance for which principal and agent could not both be held.
    Should it be claimed that the wrong done to the Company was remote, and its negligence the proximate cause of the injury, and Kerwhacker v. C. C. & C. Railroad Company, 3 Ohio St. 175, be cited, we answer: That in that case the hogs were lawfully on the track, the State of Ohio being described as a wilderness tempered by occasional in closures, and rightly grazed over by nomadic beasts. Hence they could not be considered as even remotely the cause of the injury.
    No case has been found by us, where, when the property has been voluntarily aud fraudulently exposed to danger, it has been treated as causa remota. The fraud is a present purpose and immediate cause, directly contributing, at the very time, to the injury. Where cattle stray, the negligence in leaving bars down, non-repair of fences, or whatever it may be, is past and distant. The consequence of the negli gence, the straying, continues; the negligence itself may not But when property is brought into danger purposely, as here, the fraud is intentional, and operates as a continuing and present purpose at the very moment of the injury. In most, if not all the States where the straying of cattle has been treated as negligent, it has been held to be a proximate, not remote cause. Perkins v. Eastern & B. & M. Railroad Companies, 29 Maine, 307; Tower v. Providence & Worcester Railroad Company, 2 Rhode Island, 404; Tonawanda Railroad Company v. Munger, 5 Denio, 255; Munger v. Tonawanda Railroad Company, 4 Comst. 349; New York & Erie Railroad Company v. Skinner, 19 Penn. St. 298; Williams v. Michigan Central Railroad Company, 2 Michigan, 259; Chicago & Mississippi Railroad Company v. Patchin, 16 Illinois, 198; G. W. Railroad Company v. Thompson, 17 Illinois, 131; Central Military Tract Railroad Company v. Rockafellow, Ib. 541; Illinois Central Railroad Company v. Reedy, Ib. 580.
    See also Timmons v. Central Ohio Railroad Company, 6 Ohio St. 109; Trow v. Vermont Central Railroad Company, 24 Vermont, 487; Chicago & N. W. Railway Company v. Goss, 17 Wis. 428; Perrin's Adm'rs v. Protection Insurance Company, 11 Ohio, 147; Waters v. The Merchants' Louisville Insurance Company, 11 Peters, 519.
    In conclusion, we suggest that the novelty of the action is, at least, no recommendation to it, and that the maxim is not “ubi da/mnum, ibi remedium,” but “ubi jus, ibi remedium; ” and where the plaintiff’s claim grows out of conduct which, in effect, operated as a fraud upon the defendant, we cannot see the “jus.”
    
   Scott, J.

If the facts stated in the petition show the defendant to have been guilty of a breach of contract, or derelict in respect to a legal duty, we think the plaintiff’s claim.cannot be resisted on the ground that the contract was made, not with the plaintiff, but with an agent acting in his own name, or that the supposed duty was owing to the agent and not to his principal. The bank had the same right to send the notes in controversy by McElroy as a special agent, as it would to have carried them over the same road undei the same circumstances through its president, cashier, or any other officer; and McElroy had the same right to carry the notes for the bank, as for himself, had they been his property. We fully concur with the supreme court of the United States in the case of The New Jersey Steam, Navigation Co. v. The Merchants’ Bank of Boston, 6 Howard, 3M (cited by counsel), where it is said: The cases are numerous in which the general owner has sustained an action of tort against the wrongdoer for injuries to the property while in the hands of the bailee. The above cases [referring to cases previously cited,] show that it may be equally well sustained for a breach of contract entered into between the bailee and a third person. The court look to the substantial parties in interest, with a view to avoid circuity of action, saving, at the same time, to the defendant all the rights belonging to him if the suit had been in the name of the agent.” We may add that our code of civil procedure requires actions generally to be prosecuted in the name of the real party in interest; and if the plaintiff’s property was destroyed solely through the negligence of the defendant, and without fault on the pai't of the agent, it is clear that the estate of the latter cannot be held liable for the loss, and the liability, if there be one, rests on the defendant. We think, then, that the case stands on the same grounds and presents precisely the same questions, as though the notes had been the property of McElroy, and he, having survived, had brought this action to recover of the defendant for their loss. Could such action be maintained, under the state of facts shown by the petition ?

In the able and elaborate argument of counsel for plaintiff, the right to recover is based upon two distinct grounds :

1. That the plaintiff’s property being at the time of its destruction where it was lawfully — that is, in the exercise by the plaintiff of a legal right in reference to it — and being, without any fault of the plaintiff, destroyed by the negligence of the defendant, m the management of its own property, a right of action accrues for the damage, by virtue of the maxim, sic utere tuo, ut aliemum non Icedas.

2. That the duty which the defendant, as a common carrier of passengers, owed to McElroy to exercise care and skill in transporting him safely, extends to all articles of value which, at the time, he had lawfully in his possession, or about his person, so as to entitle him, or its owner, in case Of injury resulting from a breach of that duty, to recover compensation for the damage done to such property.

As to the first of these propositions, we do not call in question the justice or soundness of the maxim upon which it is supposed to rest. The only doubt is as to its proper application to the present case. Though stated as a distinct ground of the plaintiff’s claim, I do not find it easy to consider, discuss, and apply to the case, the first proposition, without any reference whatever to the second. Eor, it will be observed that this first proposition is not based upon any contract between the parties, between McElroy and the defendant ; nor does it at all rest upon any liability on the part of the defendant as a common carrier of goods or of passengers ; it ignores the fact that McElroy, with the plaintiff’s money about his person, was a passenger being carried on defendant’s ears; and regarding McElroy and the plaintiff merely as portions of the general public, it seeks a recovery on the ground that the defendant negligently so conducted its business in the running of its train of cars as to destroy the plaintiff’s property. Tet it proceeds on the important assumption that the plaintiff’s money was lawfully where it was, at the time when the catastrophe occurred; that is, that McElroy, as a passenger on defendant’s train of cars, had a right to carry the money with him, and, without notice to defendant, to subject it to such perils as might arise from the negligence of defendant’s servants in the management of the train. Had the money not been in the defendant’s car it would not have been subjected to the peril which caused its destruction; and the question whether it was lawfully there, necessarily involves a consideration of the second proposition. Damage resulting from the negligence of another will not in all cases constitute a canse of action. Should A. through negligence burn his own house, and with it the property of B., placed therein without the knowledge or consent of A., we apprehend B. could not hold A. liable for the loss. We can not, therefore, ignore the fact, that the carrying of the money in defendant’s car was an essential element in the circumstances occasioning the loss, nor the fact that it was so carried by a person whose only right to be there was in virtue of his character' as a passenger. To ascertain the rights of McElroy as such passenger, and the obligations and liabilities of the defendant as a common carrier, in respect to the property destroyed, necessarily requires a consideration of the second proposition, which bases the right to a recovery on the relation subsisting between McElroy and the defendant, at the time of the loss, and the duties. and obligations which that relation imposed on the defendant.

As we have said, the relation subsisting between McElroy and the defendant was that of passenger and common carrier, and it was in virtue of that relation that plaintiff’s money was brought into defendant’s car, and became exposed to the peril which caused its loss. What, then, was the contract between the defendant, as a common carrier of passengers, and McElroy, and what was the extent of the obligations imposed on the defendant by law, in virtue of that contract ?

Upon well-settled principles the defendant became bound, in consideration of the fare paid by McElroy, to use the highest degree of diligence and care in transporting him to liis place of destination. And this contract for the carriage of his person necessarily included the wearing apparel which accompanied his person, such reasonable sum of money as might be in good faith carried with him for the expenses of the journey, together with all such articles, to a reasonable extent, at least, as are ordinarily carried or worn upon the person for purposes of personal use, convenience, or ornament ; and we agree with counsel for plaintiff that the contract also included the carriage of his baggage delivered to the defendant as such to be carried, to the extent of an ordinary and reasonable wardrobe for one in his station in lifq ogether with such articles as are usually found in the para ■ pliernalia of a traveller.”

But the notes for the loss of which this action is brought can neither be regarded as a part of the passenger’s baggage, nor as money intended to defray the expenses of the journey. The statements of the petition show that the notes were simply being transmitted, for business purposes, from Greenfield to Cincinnati, and were not intended to be used by the passenger for defraying the expenses of his journey or otherwise. The trip may have been undertaken on account of the money, but the money was not carried on account of the trip. Nor was the defendant entrusted with the custody of these notes, or specially charged with any care or oversight in respect to them. They remained in the exclusive custody and control of MeElroy. And as they were clearly not included in the contract for the transportation of the passenger and his baggage, and were not subjected to the custody of the carrier, it is difficult to see how he can be held liable for a want of care over them.

"We do not call in question the right of a passenger to carry about his person for the mere purpose of transportation, large sums of money, or small parcels of great value, without communicating the fact to the carrier, or paying anything for their transportation. But he can only do so at his own risk, in so far as the acts of third persons, or even ordinary negligence on the part of the carrier or his servants is concerned. For this secret method of transportation would be a fraud upon the carrier, if he could thereby be subjected to an unlimited liability for the value of parcels never delivered to him for transportation, and of which he has no knowledge, and has therefore no opportunity to demand compensation for the risk incurred. No one could reasonably suppose that a liability which might extend indefinitely in amount would be gratuitously assumed, even though the danger to be apprehended should arise from the inadvertent negligence of the carrier himself.

Whether the defendant is engaged in the business of transporting valuable packages, does not appear from the petition; but be that as it may, tbe transaction and contraer of McElroy was with the defendant in its character of a carrier of passengers only. The defendant might well have declined all responsibility for the negligence or dishonesty of its servants in respect to valuable parcels, by refusing to engage in their transportation, and if it was engaged in such business, it might well insist upon having exclusive custody of the parcels during transportation, and upon compensation for the trouble and risk incident to the business, as conditions of its liability.

It is claimed in argument that a common carrier of passengers has no reason to complain if he be held responsible for a loss of property resulting as a direct consequence from the want of that degree of care which the law requires him to exercise toward the persons of his passengers. But in the case of a breach of 'contract, the delinquent party can only be held liable for such damages as are so far the natural and direct result of the breach that they may reasonably be presumed to have been in the contemplation of the pai'ties when the contract was entered into. Now admitting the breach of contract with McElroy, the question is as to the extent of the liability incurred. It would seem from the petition that the defendant dealt with McElroy only as an ordinary passenger, seeking transportation for himself and ordinary oaggage. He could not reasonably suppose that the defendant, by selling him a ticket and agreeing to carry him and his baggage with due care, contemplated incurring a liability in respect to a large sum of money, of which defendant had no knowledge, and which he was carrying solely for the purpose of transferring it from one point to another.

The ease made by the petition is not one in which the plaintiff’s property has been destroyed by an act of positive misfeasance in the nature of a forcible trespass. The defendant is not charged with its wilful destruction, nor.with such gross negligence as would approximate to wantonness. Both the petition and the argument of counsel proceed upon the theory that any negligence which would render a carrier of p*.; engers liable f r personal injury sustained by a passenger, will make him, at the same time, liable for all damages resulting therefrom to any property which the passenger may have lawfully with him or about his person at the time. The doctrine thus broadly stated is, we think, unsustained by authority, and cannot be maintained upon principle. In effect, it ignores the distinction between the property covered by the contract for transportation and that which is outside of it.

In the very elaborate argument of counsel, many cases have been referred to which we do not think it necessary to review. It may be sufficient to say that they are all clearly and broadly distinguishable from the present case. No case has been found in which an action like the present has been held maintainable. Indeed, counsel frankly concede its novelty. While this objection may not be absolutely conclusive against the plaintiff, yet the fact furnishes strong evidence of the very general understanding of the legal profession on the subject.

We think the demurrer to the petition was properly sustained by the court below, and its judgment is therefore affirmed.

Brinkerhoee, O.J., and Welch, White, and Day, JJ., concurred.  