
    William J. Trimble, as Assignee of Eugene T. Curtis and Nathaniel Gillard, Composing the Firm of Curtis & Wheeler, for the Benefit of Certain of their Creditors, Plaintiff, v. The New York Central and Hudson River Railroad Company, Defendant.
    
      Railroad—liability of, for a sample trunk for the carriage of which an extra cha/t'ge was made — notice to the baggageman of its contents — ichen a rule of the railroad company requiring a release from liability to be executed is not applicable.
    
    A traveling salesman, who was a passenger upon a railroad, checked a sample trunk containing property of his employers, and paid, as required by the rules of the railroad company, an extra charge for its weight in excess of 150 pounds. The baggageman marked the trunk with letters indicating that it was a sample trunk, but its contents (the value of which was not in excess of what a sample trunk might be expected to contain) and the names of the owners thereof were not disclosed to him. When the salesman reached his destination and demanded the trunk it was found to be water soaked and its contents wholly valueless.
    In an action brought by an assignee of the salesman’s employers against the railroad company to recover the value of the contents of the trunk it was
    
      Held, that knowledge on the part of the railroad company that the trunk contained property other than the baggage of the traveling salesman might be inferred from its knowledge that the trunk was a sample trunk, and that the duty of inquiry concerning the contents of the trunk was upon the baggageman;
    ' That a provision contained in the passage ticket purchased by the traveling salesman, releasing the railroad company from “all liability as to baggage, except for wearing apparel not exceeding in value §100,” did not preclude a recovery, •as the right to a recovery was based upon an independent agreement by which ■the railroad company, for an extra recompense, agreed to transport the trunk 'on a passenger train, and for the further reason that a rule of the railroad 'company required the baggageman to obtain from a passenger desiring to transport baggage in excess of 150 pounds an instrument releasing the company from all liability or loss in respect thereto, thus showing that the company did not regard merchandise of this character as within the meaning of the word “ baggage” as used on the passage ticket;
    That such rule did not, in tho present case, limit the apparent authority of the ■baggageman to contract for the carriage of the sample trunk, but must be .presumed to have been waived by the defendant, never having been enforced •against the traveling salesman, who, on several occasions, in ignorance of the -existence of such a rule, had carried the sample trunk over the defendant’s railroad;
    That irrespective of the defendant’s liability as a common carrier, its failure to deliver the sample trunk in good condition rendered it prima facie liable as a bailee for hire;
    That the fact that the salesman did not disclose the identity of his employers to the baggageman did not release the railroad company from liability.
    Motioit by the defendant, The New York Central and Hudson River Railroad Company, for a new trial upon a case containing •exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the plaintiff, rendered by direction of the court after a trial at the Monroe Trial Term.
    
      David Hays, for the plaintiff.
    
      Albert H. Harris, for the defendant.
   Spring, J.:

In 1897, Curtis & Wheeler were shoe manufacturers in the city of Rochester. Joseph E. Taylor was their traveling salesman, and, in the conduct of their business, took with him a sample trunk with trays filled with shoes of his employers, besides a quantity of his. own wearing apparel. The trunk was about three feet in length,, two feet in width and nearly three feet in height. October 23,1897,. he purchased at defendant’s station, in the city of Rochester, a ticket for New York, paying the regular fare; he then caused to be checked to New York his telescope bag, containing wearing apparel of his own, and the sample trunk mentioned, for which trunk he paid eighty-five cents for excess of weight above the maximum quantity permissible on defendant’s road to be transported for the passenger-on his ticket. The baggageman gave to Taylor a duplicate check showing the point of destination, perforated with punch marks indicating the date and amount paid for overweight of baggage. The baggageman marked the trunk with letters denoting it was a sample trunk; the contents thereof were not made known to him, nor did he know it belonged to Curtis & Wheeler. The ticket which Taylor received contained, in fine type, the following:

“To be begun on the day of sale, as indicated by stamp of authorized Agent on back hereof, or before midnight of the following day. In consideration of extended time within which journey may be begun, holder hereof releases R. R. Co. from all liability as to baggage, except for wearing apparel, not exceeding in value §100.”

Taylor had been a frequent traveler upon defendant’s road in carrying on his employment and knew the contents of the ticket.

The rules of the company were received in evidence, one of which provided that, in case the passenger desired to transport baggage in excess of 150 pounds, he must sign a release of all liability against the defendant for loss, detention or damage to the same while in charge of the defendant. No such release was presented to Taylor on this occasion, nor was he cognizant of the existence of the same so far as it pertained to through baggage. He had at times signed releases of that character when he desired stop-over-privileges, without paying for overweight other than what would be imposed in case he went the length of his ticket contract without interruption. Taylor had frequently gone to New York over defendant’s road, and the sample trunk had been transported in the same manner as at this time, by his paying for the overweight. The trunk was carried on the same train with Taylor; an accident occurred at Garrison, and, when he called for the trunk at defendant’s station in New York, lie found it water soaked and the contents wholly valueless.

The claim of Curtis & Wheeler was assigned to the plaintiff for the benefit of -certain of their creditors. There was no dispute over the value of the articles. The defendant simply denied its liability to pay for the loss of the samples in the trunk. No fiand or attempt to deceive was imputed to Taylor.

The subject of the extent to which a common carrier will be held liable for baggage lost while in its custody has been much discussed by the courts. The defendant’s counsel has analyzed many of the authorities with much perspicuity, seeking to deduce the proposition, among others, that defendant is not liable upon the assumption that it had no notice of the value or character of the contents of the trunk. The testimony does, not support this broad assumption. An employee of defendant, known as the “ number taker,” kept a record of baggage received and going out, classified all the trunks and different articles, noting by letters what each article was, and on this trunk he placed the -letters S. T.,” indicating it was a sample trunk. The company, therefore, did have knowledge there was excess of weight and that the trunk contained property other than the baggage of Taylor. In the extensive business which is carried on by traveling salesmen for their employers a sample trunk has a definite signification, so that the agent of defendant, when he once located and fixed the trunk as of that character, may well be said to have known it contained samples to be used by Taylor in making sales upon the road. (Rathbone v. N. Y. C. & H. R. R. R. Co., 140 N. Y. 48, 53.)

In Sloman v. Great Western Railway Company (67 N. Y. 208) the plaintiff was a clothing merchant at Rochester and his son was his traveling salesman. The young man was at Flint, Mich., and was asked by the baggagemaster where he wanted his trunks checked; he said he did not know as he had sent a dispatch to a customer at Fentonville to know if he wanted any goods, and if he did not, he would go to Rochester, as he expected to meet some customers on the train.” Afterward, he caused his sample trunks to be checked to Rochester, paying two dollars for excess of weight. The trunks each weighed about 300 pounds, and each was about, the same size as the one cheeked for Taylor in this case. There was no suggestion that the baggageman had actual notice of the contents of the trunks, or of their value, or that any one except young Sloman was their owner. It was submitted to the jury, on this proof, to determine whether the baggagemaster had notice that the trunks “ contained other than his ordinary personal baggage,” and the jury found for the plaintiff, and this finding was sustained by the Court of Appeals. In commenting upon the sufficiency of the notice, Judge Rapallo says : “ The court at General Term placed its decision granting a new trial on the sole ground that there was no evidence to show that the baggagemaster who received the trunks had notice of the fact that they contained anything other than the ordinary baggage of Marcus J. Sloman, the agent of the plaintiff. It does not appear that it was stated, in terms, to the baggagemaster what the trunks contained, but the jury had the right to consider the surrounding circumstances, the appearance of the passenger and of the articles, the conversation between the passenger and the baggagemaster and the dealing between them, and if they indicated that the trunks were not ordinary baggage, or received or treated as such, the jury had the right to draw the inference of notice, and that they were received as freight.”

If the carrier had notice of the character of the goods and still undertook to transport them as baggage, he would be responsible for their safe delivery, even though, in fact, they were not the baggage of a traveler. (Stoneman v. Erie Railway Co., 52 N. Y. 429.)

The counsel for the defendant lays much stress upon Talcott v. Wabash Railroad Co. (66 Hun, 456). In that case, Cullom, the agent of the plaintiff, purchased of the defendant, at its office in Chicago, a coupon ticket to, New York, over its line and connecting lines to the latter city ; he had four sample trunks, three belonging to the plaintiff, and the remaining one to other parties; he stated to the baggagemaster that they contained samples of underwear ; he paid sixteen dollars for overweight, and they were checked to New York ; he did not disclose his agency, nor that he was a commercial traveler. The trunks were lost en route on one of the connecting lines, and plaintiff brought suit. While the court deemed it essential that Cullom should have informed the baggagemaster that the goods were not his property •—■ and that subject I will discuss later—yet the pivotal point upon which the case turned was, that the baggageman had no authority to transport this property as freight. At page 461, Justice Vas Brunt, in his opinion, says: “ It is true Culloni swears he stated to the baggagemaster that these trunks contained samples of underwear: But it does not appear that the baggagemaster had any authority whatever to make any contract of affreightment, or to allow merchandise to be carried as freight. And it does not appear that he ever did exercise any such authority.”

Again, he says: “So in the case of Sloman v. Great Western Railway Company (67 N. Y. 211) it was held that where the company receives the trunks of a passenger, with notice that they contain property other than personal baggage, and charges and receives extra compensation for their transportation, an agreement to carry the property as freight may by the jury be inferred therefrom. •But the authority of the baggagemaster in that case to receive the trunks as freight, was not raised, and upon the trial the court stated that the authority of the baggagemaster seems to have been assumed, he being in the receipt given for the trunks as well as in the motion for the nonsuit designated as the agent of the defendant, the simple question submitted to the jury being upon the claim that there was no evidence as to whether the defendant’s agent was notified that the baggage was other than ordinary baggage.”

The bed rock of distinction between that case and the Sloman Case (supra) is that the Taloott case was decided in favor of the defendant upon the specific ground that the baggagemaster possessed no authority to receive the trunks as freight.

In this case there is no question as to the authority of the baggageman. The common practice was to transport the sample trunks containing merchandise of commercial travelers on passenger trains on defendant’s road, and that practice had invariably been followed in its shipment of the trunk used by Taylor. The rules required that the baggage agent obtain a release from these men; but Taylor was ignorant of that exaction, and had not been required before to sign any such paper, so that secret instruction in limitation of the baggagemaster’s apparent authority was not operative against plaintiff’s assignors. (4 Elliott Railroads, § 1649 ; Hutch. Carr. § 269; Lawson Bailm. § 284; Oderkirk v. Fargo, 61 Hun, 418 ; Isaacson v. N. Y. C. & H. R. R. R. Co., 94 N. Y. 278; Lynch v. Met. El. R. Co., 90 id. 77; Quinn v. Power, 87 id. 535.)

However rigid the requirement was as an instruction to the baggageman, his practice, so far as the proof shows, and especially in his dealings with Taylor, being contrary to this regulation, a waiver of the rule will be presumed. (Rathbone v. N. Y. C. & H. R. R. R. Co., 140 N. Y. 48, 53 ; Isaacson v. N. Y. C. & H. R. R. R. Co., 94 id. 278-284.)

The counsel also relies upon Humphreys v. Berry (148 U. S. 627). In that case Arthur J. Perry, one of the firm of the petitioners, purchased a ticket from Springfield, 111., to Petersburg, in that State, at the same time causing his trunk to be checked to the same destination. The trunk contained jewelry of the value of over $7,000, and was lost in transit. The defendant’s agent had no knowledge of the contents of the trunk, nor that it was other than the personal baggage of the passenger. Judge Blatchfobd, in the opinion of the court, makes extended extracts from the testimony to support the proposition that the baggageman possessed, no information of the contents of the trunk, or that it contained anything except such baggage as any traveling man was in the habit of carrying. He says (at p. 638): “ Is there any evidence in the case from which it can fairly he said that the agent had reason to-believe that the trunk contained jewelry? It is clear that Perry, in purchasing a ticket for a passenger train, and then tendering his trunk to the agent to be checked, tendered it as containing his personal baggage. The agent was not informed to the contrary by Mr. Perry, or by any other person.” After stating that the trunk was a wooden trunk, and small in size, he adds (at p. 640): “ Perry, as a passenger on a passenger train, was bound to act in good faith in dealing with the carrier. He presented the trunk to the baggage agent as containing his personal baggage, and got a check for it as such ; and, that being so, he cannot recover for the loss of a stock of jewelry contained in it. No circumstances occurred, according to the evidence, which required the baggage agent to make inquiries as to the contents of the trunk so presented as personal baggage. The presentation of the trunk, under the circumstances, amounted to a representation that its contents were ¡lersonal baggage.”

Again, in this case, the trunk lost contained jewelry of great value — vastly disproportionate to what the baggage agent would have inferred even had "lie known it was a sample trunk. Perry had practiced a deception upon the agent in concealing from him the value of the contents. A case of that kind is to be distinguished from one like the present, where the value of the articles in the trunk is not in excess of what might be expected to be carried in trunks designated as sample trunks.

Alling v. Boston & Albany Railroad (126 Mass. 121), cited by the counsel for the defendant, was a case where the agent caused to be checked a trunk containing jewelry, of the value of $10,000, as personal baggage, but so transparent a fraud can hardly be likened to the conduct of Taylor in the present case. In cases of that kind the obvious purpose of the agent to defraud the railroad company is an element that is considered controlling.

In Blumantle v. Fitchburg Railroad Co. (127 Mass. 322) there was no intention to have the baggage carried as freight and no proof that the baggagemaster had any' authority to receive freight for transportation on a passenger train, clearly distinguishing it from the case at hand.

It is urged by defendant’s counsel, and the suggestions in some of the cases sustain this contention, that plaintiff cannot recover, as the title of Curtis & Wheeler to the property was not made known to the baggage agent by Taylor. That principle was decided adversely to defendant’s contention in the Sloman case. (Schouler Bailm. & Carr. § 568; Hutch. Carr. § 722; Ludwig v. Gillespie, 105 N. Y. 653; Smith v. Stephens, 47 Hun, 318.)

It is a maxim of the law that an undisclosed principal can reap the benefit of the contracts of his agent. As he is liable for the acts of his agent when his principalship is established (Brady v. Nally, 151 N. Y. 258, 262), a priori, he is not debarred from enforcing any obligation or claim inuring to his pecuniary advantage as the result of his employee’s services.

With the enormous amount of business carried on by commercial travelers, mainly in the employment of others, it would be a drastic rule which enabled a common carrier to escape liability because the traveling agent omitted to disclose to the baggagemaster the name of his employer. The carriage of the merchandise would in no maimer be affected by such a disclosure, and it would simply be a loophole to evade an otherwise just liability.

If the baggagemaster had reason to believe the sample trunk contained merchandise, it was not incumbent upon Taylor to apprise him of its actual contents, or of their real value. This rule obtains where no deception or artifice is practiced upon the baggageman, or where the merchandise is no greater in value than might reasonably be expected to be in a trunk of that designation and appearance. The duty is primarily upon the agent to inquire as to the contents of a trunk under such circumstances, instead of upon the shipper to furnish such information uninvited. (Baldwin v. Liverpool & G. W. S. S. Co., 74 N. Y. 125 ; 5 Am. & Eng. Ency. of Law [2d ed.], 348, et seq., and cases cited.)

It is contended by defendant’s counsel that the limitation in the passenger ticket, as to loss of baggage, to the sum of §100 in value, debars recovery in this case. The right of recovery depends upon a distinct independent agreement by which the defendant, for an extra recompense, agreed to transport plaintiff’s merchandise on a passenger train. (Millard v. Mo., Kans. & Texas R. R. Co., 20 Hun, 191.) This practice, as I have stated, was a common one for the carriage of sample trunks on this railroad. Presumably it inured to the benefit of defendant, as well as facilitated the business of the commercial traveler.

The evidence of this separate agreement was in the duplicate check. Had the ticket inhibited the carriage of baggage in excess of 150 pounds, that inhibition would not be effective to abrogate the separate arrangement by which the defendant agreed to carry the sample trunk for a consideration which it fixed. The baggage-man, in agreeing to ship this trunk, was in the line of his authority ; and the very fact the defendant promulgated a rule for his guidance, requiring him to obtain a release from a passenger for all loss or damage to his merchandise in return for the privilege of having it conveyed as baggage, indicates the defendant did not regard merchandise of this character, however shipped, as within the definition of baggage as used upon the passenger ticket. (See Rathoone v. N. Y. C. & H. R. R. R. Co., 140 N. Y. 48, 51; Mynard v. Syracuse, etc., R. R. Co., 71 id. 180 ; Blossom v. Dodd, 43 id. 264.)

Irrespective of the liability arising against the defendant as a common carrier, it is responsible to the plaintiff for the loss of this merchandise. For an agreed compensation it undertook to carry these goods to New York and deliver them to Taylor at the point of destination. It was not a gratuitous bailee, but it made a contract, based upon a good consideration. It failed to deliver the goods upon demand, and that omission established a prima facie liability against it. (Ouderkirk v. Central Nat. Bank of Troy, 119 N. Y. 263 ; Claflin v. Meyer, 75 id. 260; Wheeler v. Oceanic Steam Navigation Co., 125 id. 155.)

The burden was upon the defendant to show it exercised due care in the transmission of the goods, and, upon its failure to do so, the non-delivery of the goods rendered it liable as a negligent bailee. (Stewart v. Stone, 127 N. Y. 500, 506 ; Canfield v. B. & O. R. R. Co., 93 id. 532; Curtis v. D., L. & W. R. R. Co., 74 id. 116; Fairfax v. N. Y. C. & H. R. R. R. Co., 73 id. 167; Wheeler v. O. S. N. Co., 125 id. 155.)

As was said by Judge Finch, in the case last cited (at p. 162): “ The non-delivery at the port of destination is presumptive evidence of such negligence.”

It may be there were questions of fact in the case to submit to the jury as to whether the baggageman had adequate notice of the contents of the samqde trunk, and whether the articles were such as might reasonably have been expected to be contained in it. Defendant’s counsel, however, at the close of the evidence, asked for a nonsuit and stated to the court he did not desire any questions submitted to the jury. So it cannot now be urged there was any question of fact to be submitted to the jury, and neither counsel raise that question. The effect of the direction is to establish the questions of fact, if any there be, in favor of the plaintiff.

The defendant’s exceptions should be overruled and the motion for a new trial denied, with costs, and judgment ordered for the plaintiff on the verdict, with costs.

All concurred.

Defendant’s exceptions overruled and judgment ordered for the plaintiff on the verdict, with costs.  