
    The Pennsylvania Company v. Miller & Co.
    1. Where a verdict for the plaintiff may have been rendered upon either of two causes of action, but it does not appear upon which, a refusal to-give a proper instruction on behalf of tbe defendant, as to either cause of action, will entitle him to a new trial.
    2. The implied undertaking of a carrier to insure the safety of baggage, does not extend to the contents of a trunk, consisting of samples of merchandise, which the passenger, a traveling salesman, carries to facilitate his business in making sales. But the carrier, by taking the property into his charge and putting it in his warehouse for safe keeping, assumes the relation to it of an ordinary bailee, and he is bound to take-such care of the property as a man of ordinary prudence would of his own, under like circumstances.
    Error to the District Court of Hardin county.
    The original action was brought by the defendants in error to recover damages for the loss of a valise and samples of merchandise therein. The plaintiffs’ agent was a traveling salesman, selling by samples. Ho bought a ticket at Bucyrus, Ohio, to go to Eorest, Ohio, on the 8th day of November, 1871. He put his valise into the possession of the servants of the defendant, and took a check for the-same, to be carried to Eorest, nothing being said as to what it contained. The agent in due time was landed at Forest,, and with the valise. It being about nine o’clock at night, the plaintiffs’ agent did not call for the valise until next morning. In the meantime the agent of defendant had placed the valise in the warehouse of the company. The plaintiffs’ agent called in the morning for the valise and it could not be found. The warehouse, it was alleged, had been broken open by burglars during the night, and the valise stolen. It is alleged by the plaintiff, that the warehouse was insecure, and not a safe or suitable-place to store property in. The value of the valise and the-samples of merchandise is alleged to have been one hundred and eighty dollars.
    
      As a second cause of action, the petition set up an agreement entered into between the parties for the settlement ■of the matter in controversy, whereby, it was alleged, plaintiff' in error promised to pay the defendants in error "the value of the valise together with its contents, and that the latter assented to and accepted said promise as an adjustment of his demand.
    The making of the agreement was denied by the answer.
    Evidence was given tending to prove a promise of the character alleged in the answer, by a person assuming to represent the railroad company; but there was no evidence ■of the company having authorized the making of the agreement.
    As to the second cause of action, the defendant below (the plaintiff in error) asked the court to charge the jury, in substance, that there being no testimony in the case to •show that the person who said he would pay the plaintiffs’ claim for the lost valise, had authority to make any contract for the defendant, or to bind the defendant by any promise he made, the jury should find for the defendant ■on the second cause of action.
    This instruction was refused; and the court gave the jury no instruction on the subject of the alleged agreement or promise in the second cause of action stated.
    A verdict was rendered for the plaintiffs for the value of the valise and contents; but it does not appear upon which ■of the causes of action stated in the petition the verdict . was founded.
    The court, in its general charge, after stating that the valise had been carried safely to Forest, and had there been taken charge of by the agent of the defendant, and placed in the company’s warehouse, charged the jury in respect to the liability thereafter as follows :
    “ The only question is as to the liability of the defendant .after the goods were landed at Forest, and that question will be whether defendant took such care of the property as the law would require it to do. "When a railroad -company takes baggage for a passenger its .liability is of the highest sort. It agrees to carry the baggage safely, and insures (as seems to be admitted) against all sorts of risks, except the acts of God or the public enemy. But when the baggage is landed, it is the duty of the owner to call immediately, or as soon as the throng and hurry incident to the arrival and departure of the train has subsided, and get his property. But if he fails to thus call, and the agent of the railroad company takes charge of it, then responsibility will be changed. It will be the responsibility of a warehouseman instead of that of a common carrier. The liability will be to take such care of the -property as an ordinarily prudent man would of his ownvproperty under the like circumstances. You will therefore look at all the circumstances of this case, and see whether the railroad company’s agents did in this case take such care as a prudent man would under like conditions and surroundings. .
    All the defendant is required to do is to take ordinary care under the circumstances, such as men usually exercise in their own concerns. The defendant is not liable for theft of the goods unless it is the result of the want of proper care.”
    After verdict a motion was made for a new trial, which was overruled, and a bill of exceptions taken embodying the evidence, as well as the refusal to charge as requested, and the charge as given.
    Judgment was rendered on the verdict. This judgment was, on error, affirmed by the district court. The present proceeding in error is prosecuted to reverse these judgments.
    J. T. Brooks, for plaintiff in error:
    The petition presents a compound action of contract and tort, but the contract theory is completely upset by what is averred on as the tort side of the case, and sufficient facts on the tort side are not stated to entitle plaintiffs to a recovery. The proof is as defective as the petition.
    The valise was not transported under any contract, either express or implied, with the plaintiffs. Whatever contract existed . was between the defendant and the passenger:. "While the petition avers a contract between plaintiffs and defendant, it also shows that the valise and contents were plaintiffs’ property in charge of their traveling salesman; while it avers that defendant was in the habit of carrying traveling salesmen and samples of merchandise, it does not aver that it carried them knowingly as such, or knowiugly and without extra compensation. The proof on this branch of the case is to some extent uncertain, but it is not shown, that defendant knowingly carried samples of merchandise , as baggage, without extra pay. The evidence shows that the valise in question was “ an ordinary-sized valise.” “ Traveling agents carry samples of merchandise in all sorts of valises and trunks.” There is nothing about a traveling agent to distinguish him from other persons. My trunk was of a peculiar shape. Some have one kind of trunk, some another.”
    The defendant would not be bound by the knowledge or conduct of one or even two of its agents, in respect to sample cases which they may have permitted to pass as baggage ; and there was, therefore, no competent proof from which the jury could find that defendant at the time in question carried samples of merchandise, as personal baggage, or without extra compensation. Without this proof, the verdict can not stand. For, assuredly, there was no express contract between plaintiffs and defendant. In the absence of proof of a custom on the part of defendant of carrying merchandise as personal baggage, knowing it to be such, no implied contract to carry the valise safely can be inferred; and if there was neither contract nor custom, there was no higher duty of the defendant toward the plaintiffs, in the disposition of the valise after it reached Forest, than that which attaches to a bailee without hire. Michigan Central R. R. Co. v. Carrow, 73 Ill. 358.
    The carrier’s liability, in respect to baggage, rests upon very plain principles, which are universally recognized. The carrier is not required to make a pecuniary sacrifice for the pecuniary advantage of another. It is to be paid for the service it performs, and is to be compensated in proportion to the risk it is compelled to incur. It can not be forced to bear a great risk for small pay, or for none. Being a carrier of passengers as well as of freight, it furnishes trains, employes, and accommodations in reference to its responsibility for each.
    The articles which the traveler is thus allowed to have carried as baggage are solely such as are necessary to his personal wants, convenience, or comfort in the particular journey he is making. He is not entitled to have carried as personal baggage money, more than is necessary for the particular journey, nor jewelry, nor household articles, nor clothing of his family or friends, nor merchandise, nor samples of merchandise. He is not entitled to have the latter kind of articles carried as personal baggage, although they may pertain or have exclusive reference to the journey he is taking. As a necessary incident to the rule here stated, the passenger who conceals in his baggage articles not essential to his personal wants, convenience, or pleasure, or articles not belonging to himself, commits a fraud upon the carrier, and creates no liability whatever upon the carrier in respect to those articles, unless the carrier’s duly authorized agent is advised and accepts the articles, and offers to carry them as baggage.
    The following cases will be found to support the views herein expressed:. Macroy v. Railroad Co., 6 Q. B. 612; Railroad Co. v. Shepperd, 8 Exchequer, 30: Cahill v. Railroad Co., 13 C. B. 818; Phelps v. Railroad Co., 19 C. B. 321; Wilson v. Railroad Co., 56 Me. 60; 9 Wend. 85; Pardee v. Drew, 25 Wend. 458; Hawkins v. Hoffman, 6 Hill, 586 ; Stoneman v. Railroad Co., 52 N. Y. 429; Perley v. Railroad Co., 65 N. Y. 374; Stornan v. Railroad Co., 67 N. Y. 208; Weeks v. Railroad Co., 72 N. Y. 50; Jordan v. Railroad Co., 5 Cush. 69; Collins v. Railroad Co., 10 Cush. 506; Stimpson v. Railroad Co., 98 Mass. 83; 98 Mass. 371; Railroad Co. v. Shea, 66 Ill. 471; Railroad Co. v. Carrow, 73 Ill. 348.
    See also in this connection, First National Bank of Greenfield v. Marietta and Cincinnati R. R. Co., 20 Ohio St. 278-9; 2 Redfield on Railways, § 172 et. seq.; Swan’s Treatise, ed. of 1875, 174; Wharton on Negligence, §§ 606, 607; Story on Bailments, ed. of 1870, § 499 et. seq.
    I claim, therefore, first, that as there was no liability, as carrier, for this valise filled with merchandise, there was no liability after its arrival at destination, unless the defendant was guilty of gross negligence, and of this I shall speak hereafter. Second, that if defendant was liable at first as carrier, that liability ended when a reasonable time had elapsed after the valise reached Forest; and that that reasonable time expired as soon as the train which carried the passenger to Forest had left, and the hurry and bustle incident to its arrival and departure were over.
    It was the duty of the passenger to have called and taken his valise the night he arrived at Forest. 45 N. Y. 184; 8 Bush, 184; Roth v. Buffalo and State-Line R. R. Co., 34 N. Y. 548; Angell on Carriers, § 114; Pierce on Railways, 499; Ouimit v. Henshaw, 35 Vt. 605; Minor v. Chicago and Northwestern R. R. Co., 19 Wis. 40; Wharton on Negligence, §§ 609-610 ; Story on Bailments, §§ 446, 448-9, 595; 56 Barb. 191; 73 Ill. 510 ; 27 Iowa, 22.
    
      Wm. Lawrence and Joseph H. Lawrence, for defendants in error:
    I. When the baggage of a railroad passenger is unclaimed at its destination, it is the duty of the railroad company, as •a common, carrier, to store it in a proper and secure place until called for, and when so stored the carrier becomes liable therefor as a warehouseman, charged with the duty to take ordinary and reasonable care of it. Bartholomew v. St. Louis R. R., 53 Ills. 227; s. c., 5 American Rep. 45; Mote v. Chicago & N. W. R. R. Co., 27 Iowa, 22; s. c., 1 American Rep. 212; Ouimit v. Henshaw, 35 Vermont, 605; Roth v. B. & S. L. R. R. Co., 34 N. Y. 348; Powell v. Meyers, 26 Wend. 591; Frances v. Dubuque & S. C. R. R., 25 Iowa, 60 ; Vanhorn v. Kermit, 4 E. D. Smith, 453 ; Merrill v. Grinnell, 30 New York, 594; Burnell v. N. Y. Central R. R., 45 New York, 184; s. c., 6 American Rep. 61; Rock 
      
      Island and Pacific R. R. v. Fairclough, 52 Illinois, 106; 26 Wend.; 36 N. H. 31; 46 Barb. 103; 49 Idem, 148; 50 Idem., 193; 19 Wend. 251, 234; 29 Barb. 35; 32 N. H. 523; 18 Wis. 345; 1 Daly, 197; 21 Wend. 354; Redfield on Carriers, §§ 72, 73, 212, 214; Story on Bailments (8th ed.), § 444; 2 Redfield on Railways, 44, § 171.
    II. The same rule applies to samples of merchandise carried as baggage by traveling salesmen for the purpose of making sales. Cincinnati and Chicago R. R. v. Marcus, 38 Illinois, 219; Mich. S. & N. Ind. R. R. Co. v. Oehm, 56 Ills. 293; Camdem and Amboy R. R. v. Baldauf, 16 Pa. St. (4 Harris,) 67; 2 Redfield’s American Railway Cases, 267; 2 Smith and Bates’ American Railway Cases, 357; Minter v. Pacific R. R. Co., 41 Missouri, 503; Butler v. Hudson River R. R. Co., 3 E. D. Smith, N. Y. 571; Hannibal R. R. Co. v. Swift, 12 Wallace, 262; Bartholomew v. St. Louis R. R., 53 Ills. 27; Dexter v. Syracuse, Binghampton and New York R. R. Co., 42 New York, 326; Phillips v. Earl, 8 Peck, 182; 4 Bing. 218; Relf v. Ramp, 3 W. and Serg. 21.
    As the railroad company accepted the valise and samples in this case without inquiry, there was an implied contract to carry them as insurer of baggage proper. Burnell v. N. Y. Central R. R. Co., 45 N. Y. 184; Collins v. Boston and Me. R. R. Co., 10 Cushing (Mass.) 506; Miss. Cen. R. v. Kennedy, 41 Miss. 671; Stimpson v. Conn. River R., 98 Mass. 83; 2 Redfield Railways, § 175, 56 u.
    The custom of the railroad company to carry samples as baggage for traveling salesman charges it with a liability for the loss. McMaster v. Pa. R. R. Co., 69 Pa. St. 374; s. c., 2 Redfield’s American R. R. Cases, 61; 8 American Law Register, (old series) 534-8.
    The law now is, by universal custom, that railroad companies carry “ samples ” as baggage, and are liable therefor as warrantors. This supports the verdict, but it can be supported without going so far. A large part of the passenger business of railroad companies consists in carrying traveling salesmen and samples. Statistics show many thousand persons so engaged — railroad companies can not fail to know this. It is to their interest to encourage and invite such travel; every commercial and manufacturing enterprise of the country is interested in it; public policy will not allow these to be crippled by limiting the liability of carriers.
    III. There is no error in the'refusal to instruct the jury.
    1. the charge, asked by the railroad company, consists of a series of connected propositions, some of which are clearly not law, and it is not error to refuse such a charge.
    This appears from the words of the refusal — “ which instructions (as a whole,) the court refused to give.” Inglebright v. Hammond, 19 Ohio, 337; French v. Millard,, 2 Ohio St. 44; Walker v. Devlin, 2 Ohio St. 593; Eckels v. State, 20 Ohio St. 515; Serviss v. Stockstill, 30 Ohio St. 418; Insurance Co. v. Tobin, 32 Ohio St. 77.
    2. The whole charge was preceded by a statement of facts which the court was asked to assume. It is not error to refuse such charge, even if such facts were clearly proved. Bellefontaine Railway Co. v. Snyder, 24 Ohio St. 670.
    3. There is no error in refusing to charge the several specific propositions. M. & C. R. R. Co. v. Picksley, 24 Ohio St. 654; C. C. & C. R. R. Co. v. Crawford, 24 Ohio St. 631; Hogg v. Zanesville C. & M. Co., 5 Ohio, 418 ; Grant v. Ludlow, 8 Ohio St. 1; Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio St. 172; C. H. & D. R. R. Co. v. Waterson, 4 Ohio St. 424; C. C. & C. R. R. Co. v. Elliott, 4 Ohio St. 474; Burnell v. N. Y. Central R. R., 45 N. Y. 184; Platt v. Hibbard, 7 Con. 497; Schiveren v. McRie, 5 Rob. 404; Bartholomew v. St. Louis R. R., 53 Ill. 227; Camden & Amboy R. R. v. Baldauf, 16 Pa. St. 67.
   "White, J.

The court erred in refusing to instruct the jury, as requested, as to the agreement set up in the second cause of action stated in the petition. The verdict was for the plaintiffs, without specifying upon which cause of action it was founded. It may have been founded upon the agreement stated in the second cause of action; and if it was, the defendant was clearly prejudiced by the failure of the court to give the instruction. The defendant was entitled to have the jury instructed that it was not bound by the agreement, there being no evidence to show that the making of the agreement was authorized by the defendant.

The valise in question having been safely carried to its place of destination, and there received by the agent of the carrier and placed in its warehouse, the question, arising on the charge is, whether the rule laid down by the court for the guidance of the jury, prescribes a higher standard of care than the law requires. It is claimed, on behalf of the carrier, that it does; and that, if the carrier can be held liable at all, it can only be for gross negligence.

As was said in Griffith v. Zipperwick, 28 Ohio St. 388, “ the term gross negligence is scarcely susceptible of legal definition ; but there is a degree of care (indefinitely varied by the nature of the deposit and the circumstances of the case), which the depositor has a right to expect from the depositary, the want of which is so designated, and will render the depositary liable if a loss results therefrom.”

Accordingly, it was held in that case that good faith requires, generally, that a bailee, who is ouly liable for gross negligence, should keep the goods intrusted to him with as much care as he ordinarily keeps his own, of the same kind ; and that he should also keep them with such a degree of care as is reasonable, with reference to the nature of the goods, and the particular circumstances of the bailment.

In the present case the valise did not contain what was properly baggage. The contents consisted of samples of merchandise, which the agent of the plaintiffs carried with him to facilitate his business in making sales. The implied undertaking of the carrier, to insure the safe carriage of baggage, did not, therefore, extend to these goods. He was not, however, for this reason relieved of all responsibility in regard to the safe carriage aud keeping of the property. By voluntarily takiDg it into his charge, and finally putting it in his warehouse for safe keeping, ho assumed the relation to it of an ordinary bailee.-

The court told the jury that the duty, growing out of this relation, was to take such care of the property as an ordinarily prudent man would of his own property under like circumstances.

With the general rule thus stated we find no fault; and a less degree of care ought not, in our opinion, to be allowed.

There was a motion for a new trial on the ground that the verdict was against the evidence.

This motion ought to have been granted. We have examined the evidence in the case, and are clearly satisfied it does not warrant the verdict.

The judgment will, therefore, be reversed, as well for the refusal of the court to charge as above stated, as for refusing to set aside the verdict as being against the evidence.  