
    Southern Railway Company v. Foster.
    
      Damages for Loss of Goods.
    
    (Decided February 4, 1913.
    60 South. 993.)
    1. Appeal and Error; Finding of Court; Conclusiveness. — Where the action was tried by the court without a jury, its findings on the facts must be given the same force and effect on appeal as the verdict of the jury.
    2. Same; Harmless Error; Plea. — Where a defendant had the benefit under the issues made on the trial of all the special matters set up in the pleas to which demurrers were sustained, the sustaining of such demurrers were not prejudicial.
    3. Same; Kevieto; Motion for New Trial. — Where the bill of exceptions fails to show proof in support of the grounds alleged for granting the motion, or that due diligence was made to procure the newly discovered evidence at the trial, and had been unavailing, the court will not review on appeal, the denial of the motion for a new trial.
    4. Carriers; Baggage; Notice to Initial Carrier; Connecting Carrier. — Notice of the contents of one of plaintiff’s trunks given to the authorized agent of the initial carrier, selling a through ticket over connecting lines, was notice to the connecting carrier over whose liDes the initial carrier was authorized to contract, and did sell the ticket by which the connecting carrier, through the initial carrier as its agent, contracted to transport plaintiff and her baggage over their lines.
    
      < S. fSáftié.; :Uaf>mtv: of ■ C'onndetirig' 'G<Jo:rier.- — 'W,'hév'& the. plaintiff',, when baying a through ticket from .the agent of an initial..carrier'au^ thorized to sell transportation over connecting lines, notified the duly authorized •■.baggage agent of-the initial carrier that one-of plaintiff’s trunks contained merchandise 'and tools, and such' trunk Was "accepted‘by; suCh agent: aiid checked as'baggage, and lost .in transpprta,ti.pP-by. the connecting .-carrier, plaintiff was entitled.to recover-from the connecting carrier the" value of the trunk and its contents, 'although- it did not contain personal baggage. -
    
      ■ •6;SamesLiability for Loss. — A carrier’s liability for loss of a-passenger’s baggage is that of a carrier of goods for hire, through the' carrier'transports' the baggage as .an incident to the carriage of -the .passenger. - ....
    7. Same. — The carrier’s liability being that of an insurer, it was. liable for the loss of plaintiff’s trunk while in its possession as a carrier, for transportation. -
    8. Same.; . Burden-of Proof. — Where there- was proof of the receipt by defendant 'for transportation under a through contract of plaintiff’s trunk, and its loss, the burden was cast on defendant to acquit itself of negligence.
    9. Same; Evidence. — Where the connecting carrier, the defendant, accepted one of plaintiff’s trunks for transportation, pursuant to a through contract for the transportation of plaintiff and its baggage, and the. baggage was' lost while in defendant’s control, the fact that the baggage was riot carried on the same train with plaintiff, but without her knowledge and consent or fault, was detained in transit by an intermediate carrier, and failed to follow the route called for by plaintiff’s ticket, was not material.
    Appeal from Lauderdale Circuit Court.
    Heard before Horn C. P..;Almon,'
    ■ Action:,by -Bessie Foster against the Southern -Railway Company for loss of baggage. Judgment for plaintiff, and,’defendant appeals.
    Affirmed.
    C. F. Jordan, for appellant.
    Merchandise or other valuables are not baggage although cárried in- trunks of - passengers. — 8 Hutchison ..on Carriers, secs. 1242-1249 of Ga. v. Joseph, 125 Ala.-818; 102 Am.. St Rep. 316; 148 U. S. 627. By tendering something which is not baggage, as baggage, the passenger practices a fraud on the carrier. — So. Ex. Go. v. Owen, 146 TJ. S. 412; 148 -U. -S. 627; 56 Am. Dec. 420; 58 N. E. 813. To support trover, there must be proof of a tortious act, as distihguiéhé'd 'from rada' feasánce 'oFmonupeitfomnance of duties. — Dams v. Hurt, 114 Ala. 146Dolling■ b. Kirby, 90 Ala. 215. Trover will not lie for bare nondelivery of-goods unless-in possession of the1 carrier'and he refuses to' deliver,1 nor'will it lie" for-goods lost or stolen by: the‘-carrier’s negligence;-1-!. & F: R: R. Go. v. Kidd, 35 Alá. 209; A. &A. R.'R.'Gd. b. "Ledbetter, 92 Ala. 326; L'-d’N. v."Schemert, 156 Ala. Ill/ A carrier occupies the'-'position with' reference- to: 1 merchandise carried as baggage-as á bailee without hire; ¿nd is only liable for gross negligence. — -Melbourne' b. 'Lbé'^N., 88 Ala; 448 ; 58 N. B: 813; 148 U. S.' 627 j 30'Ani. Eep. 66t.' Ónly under peculiar circumstances cán- ári : ordinary bailee be regarded ás negligent if he employs’ordinary diligénce. — Seáis v. Edmondson, 7T'Ala.':509 ;' So. By. v. Aldridge, '142 Ala." 3681 ‘ : .• r.'-o r
    
    
      . S. W.- .Frierson, for appellee.
    The assignments of error do not conform to rules 23 and;26,'Supreme- Court Practice.. 'The' first; assignment is1 too /general,1 as is the 2nd 'and- 4th: — Ashford v. Ashford, 136-Ala. '631; Williams- v: Goosa Mfg. Go., .138 Alá: 673.. None' of the assignments are. as- definite.-and precisé'as the law requires. — Ferrell :w. 'Gity of 0peUlca,A4i: Ala., '135. The court was' not in error in refusing motion' for-new trial. —McLeod-v. Shelby Mfg. Go., 108 Alai83; ' No- evidence was offered in support thereof.- — Gobb ■ v. Malone, 92 Ala. '630.' Having received the trunk-with knowledge of-its contents'and checked it in . accordance-with the •ticket purchased, both of which: was in'the'authority of the initial carrier’s agent, it became and was the duty of defendant to transport ánd deliver, the: same. — G. of Ga. v.- Joseph, 125 Ala. 318; Hutchison on Carriers, sec. 678." The limitation of liability in the'ticket .or baggage check is' governed by the same rule'of construction as is tbe limitation in a bill of lading. — M. & 0. v. Hopkins, 41 Ala. 486.
   PELHAM,. J.

The principal facts in the cascare without controversy, and the case was. tried before the court sitting as judge and jury. The appellee purchased a second-class passenger ticket at Savannah, Ga., from the Seaboard Air Line Eailroad Company, entitling her to transportation as a passenger over the line of that common carrier and other connecting carriers, including the appellant, company, to the point of her destination, Florence, Ala. At the time the appellee bought her ticket'at Savannah, she checked as baggage on that -ticket, as an incident to her passage and contract of carriage, two trunks,-one of which trunks was delivered to her at- Florence without damage or delay and is not involved in this suit. The other trunk was never delivered, having been1 lost in transit, and appellee brings this action to- recover damages for its loss.

The only -controverted fact arising on the trial grows out of the disputed question as to whether or not the appellee, at ■ the time she checked the trunk, informed the initial carrier’s baggage agent at Savannah, who checked it, of the contents of the lost trunk, and, as the case was tried by the court without the intervention of a jury, the finding and conclusion of the court stands as the finding of a jury on the controverted questions of fact. — Winter-Loeb Grocery Co. v. Mutual Warehouse Co., 58 South. 807, and cases there cited. The appel-lee, as plaintiff in the court below, testified on the trial that, at the time she checked the steamer trunk (the trunk lost being of that description) at Savannah, she paid the' amount demanded for excess baggage and informed the baggage agent of the Seaboard Air Line Eailroad -'Company, who checked it, that the trunk con-tamed hair and bair tools; that after collecting tbe excess baggage and receiving notice of tbe contents of tbe trunk tbe defendant’s agent accepted and checked it as baggage. Tbe plaintiff was a bair dresser and manicurist, and tbe articles in tbe lost trunk were principally articles, or tools of trade, used by tbe plaintiff in connection with ber business, or merchandise (bair) kept by her for sale or use in connection with ber said business. Tbe baggage agent was not examined as a witness on tbe trial, but two of tbe defendant’s agents or employees testified that tbe plaintiff, when being interrogated by them Avith reference to tbe lost trunk, stated that she bad not informed tbe baggage agent of tbe contents of tbe trunk at tbe time of checking it. The judge sitting as a jury determined this issue of fact in favor of tbe plaintiff, as is shown by tbe rulings of tbe court, and that question is to be considered in passing on tbe questions presented on this appeal, under tbe rules governing the consideration of such- questions by tbe reviewing court, as a fact established by tbe evidence.

Tbe notice of the contents of tbe trunk given by tbe passenger to tbe authorized agent of tbe carrier at Savannah selling tbe through ticket was notice to tbe connecting carriers, over whose lines tbe initial carrier was authorized to contract for and sell, and did contract for and sell, tbe ticket by which tbe connecting roads, through tbe initial carrier as their agent, contracted to transport tbe plaintiff, and tbe plaintiff’s baggage accepted by that carrier, over their lines. Tbe company selling and contracting for through transportation over different lines generally stipulates in tbe contract of passage that it is acting as agent of tbe other companies, and, in tbe absence of a special contract to tbe contrary, it is the agent in tbe transaction of tbe several .compániesvoyer whose lines -the: transportation ' is sold, and they'are bound by the acts of. such , agent acting .within the-line and scope of'the agent’s ¿uthórity in selling tickets!and accepting passengers-and. baggage for transportation, over their respective'lines. — Wolff v. Gen. R. Co., 68 Ga. 538, 45 Am. Rep. 501.- If the' act of the baggage agent in accepting the trunk-as baggage with knowledge-of its contents would ■ make the initial carrier selling the ticket liable for the kind of'articles contained in the trunk, then the several companies Over whose lines the agent of the initial carrier' sold the through transportation would. also : be charged with knowledge or.notice of. the contents of the trunk and equally liable .in this respect, for the agents' Of- the initial carrier acted as the agents of each of the connecting carriers in selling and contracting with the'plaintiff for through transportation over the lines of such 'connecting carriers and. in' accepting and checking.: her baggage, and knowledge of the contents Of the trunk by. the agent would-be .notice to the principal. — Kelly v. Burke, 132 Ala. 235, 31 South. 512; Phoenix Co. v. Copeland, 86 Ala. 551, 6 South. 143, 4 L. R. A. 848; Terry v. Bank, 99 Ala. 566; 13 South. 149.

■ The defendant, -then, having had 'notice " 'through its agent, the duly authorized’ baggage agent of the initial carrier,:, that sold the ticket entitling the plaintiff to through passage and transportation of herself and baggage over its railroad as an intermedióte Carrier, that the trunk contained, the articles in question, and'such agent having accepted the trunk and checked-the samé as baggage with knowledge of its contents, the plaintiff would be entitled to recover for the loss of such articles, although they wére not what are generally' known, designated, and regarded as the personal baggage of a passenger, but consisted of merchandise or other articles.— St. L. & S. F. R. R. Co. v. Lilly, 1. Ala. App. 320, 55 South. 937; Strouss v. Wabash, St: L. & P. Ry. Co. (C. C.) 17 Fed. 209 v. Jacobs v. Tutt (C. C.) 33 Fed. 412; Stoneman. v. Erie Ry. Co., 52 N. Y. 429; Perley v. R. R. Co., 65 N. Y. 374; Rider v. Ry. Co., 14 Mo. App. 529.; Bowler & Burdict Co. v. R. R. Co., 10 Ohio. Cir. Ct. R. 272 & Oakes v. N. P. R. R. Co., 20 Or. 392, 26 Pac. 230, 12 L. R. A. 318, 23 Am. St. Rep. 126; Texas & Pac. Ry. Co. v. Capps, 2 Willson, Civ. Cas. Ct. App. §34; Ft. Worth & R. G. Ry. Co. v. Rosenthal Millinery Co., (Tex. Civ. App.) 29 S. W. 196.

The evidence is without conflict that the trunk was .accepted as baggage, checked, and taken into custody by the initial carrier on the plaintiff’s .ticket entitling her to ride as a passenger over the defendant’s railroad as an intermediate carrier to the point of her destination. It is also shown without conflict in the evidence that the defendant carrier received the trunk from a connecting carrier while the trunk was in transit and failed to deliver it to the next connecting carrier, or to the plaintiff. In fact, it is shown by the agreed statement of facts introduced on the trial that the defendant company, an intermediate carrier, received the- trunk, while en route to its destination, and that it was lost, or stolen, while in the custody and care of- the defendant or its agent at Tuscumbia, Ala.; having been taken from the platform of the depot at that place by some unknown, person. . .

While the carrier transports the baggage of a passenger as an- incident of the carriage, its liability for the loss of .the personal baggage of the passenger delivered to and taken possession of by it is that of a common carrier of goods. See cases cited in Cyc., under the title of .Carrier, p. 662, note 4. •

The fact that the baggage was not carried on the same train with the passenger, and was without her knowledge or fault deviated tvhile in transit by some intermediate carrier and failed to follow the exact routing called for by the plaintiff’s ticket, is immaterial when the evidence shows, as it does in this case, without Conflict, that the defendant, as a connecting intermediate chrrier for the purpose of fulfilling the contract of carriage over its line as such connecting carrier, actually received the baggage while in transit under the contract for through transportation, and, while undertaking the continuous transportation of the baggage under the contract as such intermediate carrier, failed to perform the contract without fault of the plaintiff.- — Wilson v. C. & O. R. R. Co., 62 Ya. 654; Western Ry. of Ala. v. Hart, et al., 160 Ala. 599, 49 South. 371. Proof of the loss of the trunk after its receipt by the defendant cast the burden of proof upon the defendant of acquitting itself of negligence. — C. of Ga. Ry. Co. v. Jones, 150 Ala. 379, 43 South. 575, 9 L. R. A. (N. C.) 1240, 124 Am. St. Rep. 71. In this case the facts show that it was stolen from its possession, while its custody was that of a carrier and its liability that of an insurer. The demurrers aimed at the first three counts of the complaint are manifestly not well taken, and the assignments of error directed at the rulings on these demurrers are too general to be considered. — Ferrell v. City of Opelika, 144 Ala. 135, 39 South. 249; Williams v. Coosa Mfg. Co., 138 Ala. 673, 33 South. 1015.

The same is true with respect to the assignment of error going to the court’s rulings on the plaintiff’s demurrers to the defendant’s various pleas. Besides, these rulings, if erroneous (and we do not think they are), would be without injury, as the defendant is shown to have had the benefit of all the special matters set up in the pleas to which demurrers were sustained under the issues made upon the trial.

The court’s rulings on the .evidence are/free from error. From what we have said it will he seen that it was entirely proper to admit evidence of the loss and value of the articles in question in view of the testimony of the plaintiff that she had informed the agent who checked the baggage on the through ticket that the trunk contained such articles.

There was no error in the judgment rendered by the court.. The evidence supported the judgment on the counts of the complaint seeking a recovery for failure to deliver baggage received by it as a common carrier, to which counts the judgment was referable.

The motion for a new trial was without merit. — M. & O. R. R. Co. v. Hopkins, 41 Ala. 486, 94 Am. Dec. 607; So. Ex. Co. v. Owens, 146 Ala. 412, 41 South. 752, 8 L. R. A. (N. S.) 369, 119 Am. St. Rep. 41, 9 Ann. Cas. 1148. Nor does the hill of exceptions show that proof in support of the allegations set out as grounds for granting the motion was adduced on the hearing of the motion, or that any showing was made that due diligence to procure the testimony had been unavailingly used.

No error appears, and the judgment of the court appealed from will be affirmed.

Affirmed.  