
    Hilma Carlson, Resp’t, v. The Oceanic Steam Navigation Company, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 24, 1888.)
    
    1. Evidence—What competent.
    On the trial of an action for the value of the contents of a trunk alleged to have been lost, the defendant called as a witness an inspector of customs at the port of New York, who testified that he had been such for ten years and had been specially detailed to examine the baggage of emigrants from Sweden and Norway upon their arrival in port and had frequently done so. He said he could give a fair idea of the value of the ordinary baggage of those emigrants. He was then asked to state what in all his experience was the actual value of the baggage that he had ever seen in any one trunk from those countries in the custody of anyone emigrant. Held, that the question was properly excluded. That the proposed evidence was not admissible. Railroad Co., v. Fraloff, 100 TJ. S., 34, distinguished. Earl, Peckham: and Gray, JJ., dissenting.
    2. U. S. Rev. Stat., § 4281—Who a shipper within—Bill oe Lading— When required.
    The plaintiff was carrying as a part of her ordinary baggage such small articles of jewelry and silverware as under any circumstances would only be regarded as a proper and legitimate part thereof. The TJ. S. Revised Statutes, § 4281 prohibits any shipper of (among other things) jewelry, trinkets, gold or silver, manufactured or unmanufactured, from lading such articles as freight or baggage without giving notice to the master of the character and value thereof, and having the same entered upon the hill of lading. Held, that plaintiff did not come within the provision of the statute.
    Appeal from a judgment of the supreme court, general term, second department, affirming a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    
      Lawrence Oodhin, for app’lt; J. Edward Swanstrom, for resp’t.
    
      
       Affirming 39 Hun, 657, mem.
      
    
   Per Curiam.

—There are but two questions presented for review in this court, one arising upon an exception taken by defendant to the exclusion of certain evidence offered by it, and the other upon an exception taken by it to a refusal of the court to charge the jury as requested.

A majority of the court think that neither objection is tenable. The defendant called as a witness an inspector of customs at the port of New York, who testified that he had been such for ten years, and had been specially detailed to examine the baggage of emigrants from Sweden and Norway upon their arrival in port, and had examined such baggage on hundreds of occasions for the purpose of ascertaining whether there were dutiable goods therein. He said he could give a fair idea of the value of the ordinary baggage of those emigrants. He was then asked to state what, in all his experience, was the actual value of the baggage that he had ever seen in any one trunk from those countries, in the custody of any one emigrant.

This question was objected to as immaterial and incompetent, and the objection was sustained, and an exception taken by defendant.

The evidence was claimed to be competent on the part of the defendant upon the issue as to what was the value of the baggage ordinarily or usually taken by passengers of like station as plaintiff, and pursuing a like journey.

The case of Railroad Co. v. Fraloff (100 U. S., 24), was cited as an authority for such evidence. It is thought that it does not bear out such contention. The question in that case was whether such an amount and value of lace as was carried by the passenger in her lost trunk could, under any circumstances, be called or come within the fair meaning of the term baggage.

The court held that it was a question of fact for a jury under proper instructions to decide, and as there was evidence that the passenger habitually wore such lace on ball and theatre and other dresses, and that it was necessary for a person in her station to carry it when traveling, the verdict in favor of the passenger would not be set aside.

But in this case the contents of the trunk, as sworn to by the plaintiff, were such as under any circumstances would fairly be called baggage, and whether it was more or less than emigrants usually traveled with was not important, as in any event it could not be said to be more than any one would have a right to travel with, and to hold a carrier responsible for the loss of.

We have examined the other cases cited by counsel for defendant arising in this state, and some of them reported in this court, but we do not think they sustain or point to any rule which would make the proposed evidence admissible.

As to the other question arising upon the section (4281) of the United States Revised Statutes, which prohibits any shipper of (among other things) jewelry, trinkets, gold or silver, manufactured or unmanufactured, from lading such articles as freight or baggage, without giving notice to the master of the character and value thereof, and having the same entered on the bill of lading, we do not think the plaintiff comes within the purview of the statute, as she is not a shipper of any such articles, within the meaning of the law. She was simply carrying, as a part of her ordinary baggage, such small articles of jewelery and silverware as under any circumstances would only be regarded as a proper and legitimate part thereof. There is also some question whether the law is applicable to the plaintiff, a foreigner who made the contract of carriage with a foreign ■corporation outside the jurisdiction of this country, even though action is brought in this country, and upon such contract. But for the reason already given the statute does not apply.

The judgment must, therefore, be affirmed, with costs. All concur, except Earl, Beckham and Gray, JJ., who dissent on first ground.  