
    HUMPHREYS v. PERRY.
    APPEAL PROM THE CIRCUIT COURT OP THE UNITED STATES POR • THE NORTHERN DISTRICT OP ILLINOIS.
    No. 167.
    Argued and submitted March 23, 24, 1893.
    Decided April 10, 1893.
    A travelling salesman for a jewelry firm bought a passenger ticket for a passage on a railroad, and presented a trunk to be cheeked to the place of his destination, without informing the agent of the company that the trunk contained jewelry, which it did, and without being inquired of by [ the agent as to what it contained. lie paid a charge for overweight as personal baggage, and the trunk was checked. It was of a dark color, iron bound, and of the kind known as a jeweler’s trunk. It had been a practice for jewelry merchants to send out agents with trunks filled with goods, the trunks being of similar character to the one in question, and, as a rule, they were checked as personal baggage." But there was no evi- . dence tending to show that the railroad companies, dr:their agents, kliew what the trunks contained’: -Held, .
    
    (1) There was no evidence showing, or tending to show,, that the agent of the railroad had any actual knowledge of the contents of the trunk;' v
    (2) There was no evidence from which it could fairly b.e said that the agent had reason to believe that the trunk contained jewelry;
    ' (3) The agent was not required to inquire as to the contents of the trunk, so presented as personal baggage;
    (4) The company was not liable for the loss of the contents of the trunk.
    The cases on the subject, reviewed.
    The case is stated in the opinion.
    
      Mr. Richard 8. Tuthill> (with whom was Mr. Frederick O. Hale on the brief,) for appellees.
    
      Mr. Wells H. Blodgett, for appellants, submitted on his brief.
   Me. Justice Blatchfoed

delivered the opinion of the court.

This is an intervening petition, filed May 28, 1886, in the Circuit Court of the United States for the Northern District of Illinois, by John H. Perry, Arthur J. Perry, James K. Perry and Frank A. Perry, copartners under the firm name of Perry Brothers, in the suit pending in said court, of the Wabash, St. Louis and Pacific Railway Company against the Central Trust Company of New Tork and others, in which suit Solon Humphreys and Thomas E. Tutt had been appointed receivers of said railway.

The intervening petition ivas filed against the receivers by' leave of the court. It sets forth that the principal office of the firm of the petitioners is at Chicago; that on January 30,1885, Arthur J. Perry, one of the firm, in carrying on its business, bought and paid for a ticket for his passage from Springfield, Illinois, to Petersburg, Illinois, over and upon the railroad of ' the company running between those, two places, and at the same time checked with the company a trunk containing jewelry, watches and merchandise of the firm, such as was necessary for him to take with him in prosecuting the business of the firm, and such as is usually taken as baggage by travelling salesmen in prosecuting business similar to that of the petitioners, for transportation by the company from Spring-field to Petersburg; that for the transportation of the trunk he paid the company a sum of money additional to that which he, had already paid for his ticket; that thereupon he entered the coach of the company, and the trunk was placed by its agents in the baggage-cár of the company en route for Petersburg; that shortly before reaching that place, by the negligence and carelessness of the company in constructing and repairing its roadbed and track, and in running that train, the cars containing said Arthur J. Perry and said trunk,were derailed, and the baggage-car containing the trunk was overturned and rolled down an embankment, and at the foot thereof, by the negligence and carelessness of the company in using in the car an unsafe, improper and dangerous kind of stove, and in having said stove unsecured or improperly secured, the baggage-car caught on fire and was totally consumed, together with said trunk, and the watches, jewelry and merchandise of the petitioners in the trunk were almost totally destroyed ; that the value of the trunk and its contents was $9818.46; that the petitioners recovered from the debris of the baggage-car a part of the merchandise, so that their loss amounts to $9218.46; that the receivers were appointed May 29, 1884, and had possession of and were operating said road from Springfield to Petersburg at the time of the loss of the trunk; and that they had refused to allow the claim of the petitioners. The prayer of the petition is that the receivers answer the claim for damages.

The answer of the receivers sets forth that at the time in question they were not prepared to carry articles of jewelry and,watches as baggage, and did not undertake or advertise themselves to the public as ready or willing to transport the same; that by the rules of the receivers, then in force and well known to the intervenors, the agents and servants of the receivers were not allowed to take trunks containing jewelry, watches and valuable'merchandise'as baggage; that on January 30, 1885, Arthur' J. Perry, one of the intervenors, presented to the agent of the receivers, at Springfield, Illinois, the trunk in question and demanded a check therefor, and- the receivers then' and there undertook to carry the trunk as containing only the personal baggage of said Perry; thát he then5and there wrongfully concealed from the said agent the ■fact that the trunk contained jewelry, ’watches or valuable merchandise, -and by such wrongful conduct' and fraudulent concealment of the contents of- the 'trunk and’ their value, secured a: check for it from the agent as baggage; that, because it .was' so- checked, it was placed by the agent in-a baggage-car- and transported as ordinary baggage by the receivers over said line Of road; that, before reaching Peters-burg, on ‘ said day, ‘ the train containing the baggage-car' in which thó truñk had been placed-became derailed, without fault or negligence on the part of the receivers or their agents or servants ; and that, without any such fault or negligence, the baggage-car' caught fire after being so derailed, and a portion of the contents of the trunk, so wrongfully and fraudulently shipped as- baggage, was dest-royéd.- The answer denies that the interven ors are entitled to any relief. \

On June 30, 1S86, the court made an order referring- the intervening -petition to E. B. Sherman “ to take proof and report the'same, to the court.” Mr. Sherman was one of the masters 'in chancery of the court. He took -proofs and made a report to the court, accompanied by the proofs, and filed October 23, 1888. -In his report, he recites the order of reference as directing him to take evidence and report to the court “ with his findings'in the premises.” He did report the1"evidence and also' findings ■'by’him both of fact and of-'law. The receivers excepted-to'the report because (1) the findings were contrary to tire evidence, (2) the -findings were contrary to law-, (3) the’ -findings were contrary To the Jaw and the evidence, (d) the finding should have-been that the intervening petition be dismissed, (a) the interven ors were not entitled to the -relief prayed for, and (6) the amount found by the-master was excessive and not warranted by the testimony. The master found that , the intervenors were entitled to recover from the receivers '$7287.87, with costs. There -was no exception to the fact that the master had found the facts and the law, or had departed from the order cp reference, and neither of the parties nor the- court took any objection in' that respect. ' - * ' ■ ■

The case was heard before the Circuit Court, held by Judge Gresham, 39 Fed. Rep. 417, on the report of the. master, and the exceptions thereto; and a decree was made, July-29,1889, overruling the exceptions, confirming the report of tlie-master, and decreeing in. favor' of- the intervenors for $7287.87, and for the payment of that' sum to them by the receivers, with costs, and $150 for master’s fees. From this decree the receivers have appealed. • '

On January 30, -1885, Arthur J. Perry, a member of the intervenors’ firm, was in Springfield, ’Illinois, with a trunk • of jewelry containing a stock of goods from which he was to make sales and deliveries to their customers. r He.there bought a passage ticket from the agent of the receivers, for his transportation to Petersburg,' on their road, and presented-his trunk to be checked .to Petersburg as his personal baggage..' The trunk was of a dark color, iron bound* weighed 250 pounds, and as to size was described in the evidence as' being “ what a sample-man would call small.” The. agent gave him-acheck for the trunk and collected from him 25 cents on account of its extra weight, only 150 pounds of personal baggage being carried free for each passenger. ■ Nothing was said to the agent :by Perry concerning the contents of the trunk, nor did he make any inquiries of - Perry in regard to its contents. When the train had reached a point a. few miles from' Peters-burg, the car. in which the trunk, was being conveyed , was thrown from the track and was ignited from the fire in a stove on board, and the trunk and contents; to the value of $7287.87, were destroyed. There was evidence tending to show that the stove was cracked and that its door was-without a latch or other fastening. As to the cause of the derailment, there was evidence-tending- to show that the night was cold, and that, as the train was rounding a curve; a rail broke under 'it-. There was. also evidence tending to shpw that many of the cross-ties in the track, at the place of the' accident, were so decayed that they did not firmly hold the spikes, and that the disaster was caused by the rails spreading. The master, in his report, attributed it to the latter cause, and found that the condition of the track was so unsafe that the receivers were presumed to have known of its condition. He found as a fact, however, that the condition of the track had been improved by the receivers, and at the time of the accident was better than when they were appointed.

There was evidence tending to-show that, it was, and had been for a number of years, a practice among the wholesale jewelry merchants of Chicago and other places to send out agents or members of their firms among their country customers, with trunks filled with goods, and that such agents had been accustomed to sell and deliver goods from the stocks thus carried about. The evidence tended to show that such stocks of goods were generally carried in trunks similar in character to the one used by Perry, and that as a rule they had been checked as personal baggage. But. there was no' evidence tending to show that the railroad companies or their agents knew what the trunks contained; and John H. Perry, one of the firm, who testified as to what had been the custom, also testified that he did not know of any railroad in the country that he could go to and say, “ Here is a trunk containing $10,000 worth of jewelry; I want a check,” and get a check for the trunk. No witness testified that, after the appointment of the receivers, and before the occurrence of this loss, he had received a check over the "Wabash, St. Louis and Pacific Railway for a trunk containing jewelry; nor was there any evidence tending to show that the receivers'knew ;of any custom under which trunks containing stocks of jewelry Avere checked as personal baggage.

Arthur J. Perry, in his testimony, gaA'e the following evidence-, as to the trunk in question: “ Q. What kind, of a trunk was that? A. It Avas a heavy iron trunk-—-iron-bound, dark trunk, small size. Q. Had it any particular designation that you know of ? A. It is a trunk-that Ave used in our business, is about all; very small and heavy. Q. The kind of a trunk known as a jeweler’s trunk, is it? A. Commonly used and known as a jeweler’s trunk.”

He also testified as follows: “ Q. Are you acquainted with the wholesale and retail jewelry trade as conducted in Chicago ? A. Since 1880. Q. Just state how- the wholesale jewelers in Chicago conduct their business with the outlying towns with which they have trade. A. The majority of them conduct it the same as we do, that is, they put goods in trunks, and send them with men on-the road. Q. They send travel-ling men or members of the firm with a jeweler’s stock' in a trunk? A. Yes, sir. Q. And go to different towns and sell from that trunk? A. Yes; sell, deliver and bill. Q. And, to your knowledge, that has been the custom since 1880? A. My knowledge goes further back than that. . Q. How far beyond? A. Since 1873. Q. Is that their manner in conducting business now? A. Yes, sir. Q. Did I understand you to sajr you sell by samples ? A. It isn’t the rule; there are a few that do it — not one in ten. Q. They send a stock of jewelry and sell from that stock ? A. Yes, sir; they sell . from the stock. Q. And what is the usage in regard to the transportation of 'these jewelry trunks ? A. We check them the same as other sample trunks. Q. Check as baggage? A. Yes; they allow us, as commercial baggage-—they allow us 200 pounds when we have a thousand-mile ticket; Avhen we have a local ticket they allow us 15,0 pounds, and we have to pay for all over that. Q. They have been carried as baggage and checked as baggage since when? A. Since 1873. Q. Had you travelled over this road before and carried your trunk in the same manner? A. I had. Q. Do you know of others transacting the same kind of business? A. Yes, sir; met them in Springfield many times, and at different points on the road; it is a common occurrence. Q. Was it or not the common and invariable usage, so far as you know? A. Yes,-sir; that is the way the business is conducted.” On cross-examination he testified as follows: “ Q. You say that was a small trunk? A. Yes, sir. Q. What was its color? A. A dark trunk — a black or gray. Q. W ,s it a small trunk or an ordinary size trunk ? A. It was a small trunk for the weight of it, and what sample-men would call a small trunk.”

Another witness, Theodore Kearney, testified as follows: •“ Q. Are you familiar with the custom or usage throughout the United States of selling goods at wholesale? A. Yes, sir. Q. By travelling men ? A. Yes, sir. Q. State what that usage has been for that time. A. The usual custom is to carry the stock of goods of various values, according to the class of the house, and sell from that stock to the customers. It is the universal custom. Q. What proportion of the dealing in jewelry is done in that, manner? A. I think nine-tenths in the jobbing trade. Q. And how is this jewelry carried from place to place ? A. Carried as baggage — trunks checked as baggage; carried in compartments made in the trunk for that particular purpose. Q. What kind of trunks are they carried in ? A. What is known as the Crouch and Fitzgerald trunks — wooden trunks. I think they are made for that express purpose — almost universally made and used for .that purpose. Q. Iron bound ? • A. Iron strapped, not bound. Properly, iron corners and strips covered by three or .four strips in various ways.”

John II. Perry, one of the intervenors, testified as follows: “ Q. I will ask you if you are fanfiliar with the usages and customs of the wholesale and jobbing jewelers in reference to selling their goods. A. To a fair extent I am. Q. How are they sold ? A. Our goods have been sold in that way. Q. How ? A. Sold by travelling men from trunks on the road; stock carried by travelling men and delivered as the sales were made and bills sent in to the house. Q. Ho.w are these trunks transported from place to place? A. Checked as baggage.” The same witness also .testified that some railroads had refused to receive and check such trunks unless they were given indemnifying bonds. On cross-examination, he testified as follows : “ Q. Mr. Perry, do you know of any railroad in this country that you could go to with a trunk and say, ‘ Here is a trunk containing $10,000 worth of jewelry — I want a check,’ and get a check for it ? A. I am not acquáinted with any such road. Q. You don’t know of any such road? A. No, sir.” On his redirect examination, he testified as follows: “ Q. You said you didn’t know of any road that would receive a trunk. if a man would say it contained $10;000 worth of jewelry. Did you ever know of a railroad refusing to check a jewelry trunk ? A. No. I did not.”

J.' W. Patterson, the baggage agent of the receivers at Springfield, testified as follows: “ Q. What business were you engaged in during the time you have lived in Springfield? A. Station baggageman for the Wabash. Q. Were you engaged in that business on the 30th of January, 1885 ? A. Yes, sir. Q. Did you check a trunk on that day from Springfield to Petersburg? A. Yes, sir; that is, I checked a piece of baggage ; couldn’t say it wras a trunk. Q. Do you know the number of that check? A. Yes, sir. Q. What is it? A. It is 10,763. Q. Do you know Mr. Perry? A. No, sir; not that I know of; don’t know him by name; might know him if I saw the gentleman. Q. Was that the only piece of baggage checked for Petersburg that day ? A. Yes, sir. Q. That was for the evening train? A. Yes, sir; evening train, 2.10. Q. Did you know whether or not at the time you checked this trunk or piece of baggage that it contained jewelry ? A. No, sir; I did not know what it contained. Q. Was it checked in the ordinary way that baggage is checked? A. Yes, sir.” On cross-examination, the same witness testified as follows: Q. When you see a trunk, a heavy trunk, heavily iron bound, with heavy iron corners and iron clasps, iron along the corners and iron bandages all around it and two or three ‘Strong locks in front, what kind of baggage would you suppose to be in the trunk? A. Well, we couldn’t suppose what was in the trunk. Q. You wouldn’t suppose that contained ordinary wearing apparel, would you — a trunk of that sort? A. Well, I don’t know as I would. Q. Are not trunks of that description trunks that are carried by commercial travellers generally ? A. Bless you, they carry all kinds, sizes and sorts. Q. Don’t they carry that kind of trunk? A. Yes, sir; lots of that kind of trunks on the road. Q'. Those are not the trunks ordinarily used by travellers carrying wearing apparel? A. No; but there is — once in a while.you find a castaway sample trunk that is" picked up, parties carrying them, but it is not very often the case. Q. What do you mean by sample trunks? What is a sample trunk ? A. What we call — that is, a trunk that contains different kinds of samples. Q. jHow do you know when you see them? A. Well, we don’t know them without some party opens the trunk. Q. When you see a trunk of that sort you naturally suppose it has samples in it ? A. Yes, sir. Q. They are made much stronger than ordinary trunks, are they riot — different build ? A. Yes, sir; different built trunk. Q. Well known to all' baggagemen and railroad men as sample trunks, are they not? A. Yes,-sir. Q. You know, as a matter of fact, do you not, that jewelry firms have transported their stock of jewelry in trunks of that' make ? A. Yes, sir. Q. Passing over your lines daily ? A. Yes, sir. Q. Checked as ordinary baggage? A. Yes, sir; at that time, but not now.

“ Q. Don’t you know, from your experience of 11 years, if a trunk containing jewelry came into your possession and you handled it you would be able to tell what was in it ? A. No, sir; and nobody else. Q. If a trunk came into your possession of that sort, at least its character is so well known to you, you would make inquiry about it, wouldn’t you? A. Of course, once in a while; we do not every time.

“Q. You know at that time there were- a great many jewelry trunks on the road, and had been previous to that time, in carrying stocks of jewelry in trunks ? A. Couldn’t say a great many, because I never saw but very few of them ; couldn’t see what they contained. Q. You know, as a general thing, that jewelers travel on the road with their stocks, don’t you? A. Yes, sir. Q. They transported their goods from town to town in trunks? A. Yes, sir. Q. And sold from their trunks? A. I couldn’t say about that; don’t know anything about that — checked the baggage.” On redirect examination, he testified : “ Q. As a fact, from your knowledge of trunks, could you tell from looking at that trunk that it contained jewelry ? A. I could not.”

The Circuit Court said, in its opinion, that the nature and contents of the trunk were not expressly disclosed to the agent at Springfield; that he made no inquiries on that subject; that the trunk was 3 by 2£ feet, iron bound, weighed 250 pounds, and was known in the trade and to’baggagemen as a jeweler’s or commercial traveller’s trunk; that the evidence showed that the intervenors and other merchants of the same .class, then and prior thereto, sold their goods, in the main, directly from trunks transported from place to place over railroads, and that this road had previously and frequently checked and carried such trunks for the intervenors and others as personal baggage. The opinion then said: “ If the station agent did not know that the trunk contained jewelry, he had reason to believe it did. He received it, knowing that Perry was not entitled to have it carried as personal baggage. The agent did not believe the trunk contained wearing apparel only. Tt is plain from the . evidence that he recognized it as a jeweler’s trunk, and that he understood it contained-a. stock of jewelry. He was not, therefore, deceived, and the receivers were not defrauded. Having checked the trunk by their agent as personal baggage, knowing or having reason- to believe . that it contained jewelry, the receivers became bound to safely transport it to its destination, which they did not do, and they ars liable for the damages that resulted from a breach of the contract. They sustained to the trunk and its contents the relation of a carrier, and they are liable for the property destroyed by their negligence, just as if .the trunk had contained nothing but wearing apparel, or as if they had undertaken to carry it as freight.”

The receivers contend that the Circuit Court erred in basing its judgment, either wholly or in part, on the assumption that the baggage agent at Springfield had actual knowledge of what the trunk contained, and that he knew, or had reason to believe, that it contained a stock of jewelry.

There, is no evidence showing or tending to show, that the baggage agent had any actual knowledge of the contents pf the trunk. Arthur ' !. Perry did not suggest’ that he either told the agent what the trunk contained or opened it in the agent’s presence. He testified to no fact from which the inference could be drawn that the agent had actual knowledge that the trunk contained a stock of jewelry. Patterson, the agent, testified expressly that at the time he checked the trunk he did not know what it contained. The master states in his report that Perry did not disclose the character of the contents of the-trunk, or say anything in regard thereto, but simply presented the trunk, as had been customary with him and other salesmen, to be received- and checked as ordinary baggage, as it had been customary for agents to do on this and other roads; and the court said, in its opinion, that the nature and contents of the trunk were not expressly disclosed to the agent, and that he made no inquiries on that subject. It is clear, therefore, that the liability of the receivers cannot be founded on the proposition that the agent had actual knowledge of what the trunk contained.

It is further contended that the Circuit Court erred in holding that the agent ought to have known what was in the trunk, by its external appearance. The Circuit Court says, in its opinion, that it is plain,-from the evidence, that the agent recognized the trunk as a jeweller’s trunk and understood that it contained a stock of jewelry ; and that, their agent having checked the trunk as personal baggage, knowing, or having reason to believe, that it .contained jewelry, the receivers .became bound to transport it safely to its destination.

Is there any evidence in the case from which it can fairly be 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. As the agent did not know what the contents were, the allegation that he recognized the trunk'as-a jeweller’s trunk, and understood that it contained a stock of jewelry,--necessarily implies that such recognition and understanding must have arisen from the outward appearance of the trunk. The testimony on that subject is as fellows: Arthur J.- Perry testified: “Q. What kind of a trunk was that ? A. It was a heavy iron trunk — iron-bound, dark trunk, small size. Q. Had it any particular designation that you know of? A. It is a.trunk that we used in our business, is about all; very small and heavy. Q. The kind of a trunk known as a jeweller’s trunk, is it ? A. Commonly used and known as a jeweller’s trunk.” He also said, on cross-examination : “ Q. You say that was a small trunk? A. Yes, sir. Q. What was its color? A. A dark trunk, a black or gray. Q. Was it a small trunk, oran ordinary-sized trunk? A. It was a small trunk for the weight .of it, and what sample-men would call a small trunk.” That is all the testimony that was given as to the size, shape or appearance of the trunk.

Kearney, a witness for the intervenors, testified as follows, as to the kind of trunk generally carried by travelling men in the jewelry trade: “ Q. Are you familiar with the custom or usage throughout the United States of selling goods at wholesale? A. Yes, sir. Q. By travelling men? A. Yes, sir. Q. State what that usage has been for that time. A. The usual custom is to carry the stock of goods of various values, according to the class of the house, and sell from that stock to the customers. ' It is the universal custom. Q. What proportion of the dealing in jewelry is. done in that manner ? A. I ¡think nine-tenths in the jobbing trade. Q. And how is this jewelry carried from place to place? A: Carried as baggage.—'trunks checked as baggage ; carried in compart-, ments made in the trunk for that particular purpose. Q. What kind, of trunks are they carried in ? A. What is known as the Crouch and Fitzgerald trunks—wooden trunks. I think they are made for that express purpose — almost universally made and used for that purpose. Q. Iron bound ? A. Iron strapped, not bound. Properly, iron corners and strips covered by three or four strips in various ways.”

Patterson, the baggage agent at Springfield, testified that he checked a piece of baggage on the day in question, from Springfield to Petersburg ; and he said, on cross-examination, that he had no particular recollection about the trunk of Perry, and that he did not recollect Perry.

•The evidence, therefore, is, that the trunk which Perry delivered to be checked as his personal baggage was a wooden trunk, of dark color, iron bound, heavy for its size, and in size what a sample-man would call small; and the question arises, on these facts, whether the agent was bound to know, or to be presumed to know, that such a trunk contained a stock of jewelry. If he was, it must be presumed, contrary to the positive evidence, that he could tell what was in the trunk by looking at it or handling it, and this, notwithstanding the agent' testified as follows, on cross-examination: “Q. Don’t you know, from your experience of 11 years, if a trunk containing jewelry came into your possession and you handled it you would be able to tell what was in it? A. No, sir; and nobody else.”

The hypothetical trunk put to Patterson on cross-examination was described as a trunk with heavy iron corners and iron clasps, iron along the corners and iron bandages all around it, and two or three strong locks in front. That hypothetical trunk does not • appear to be such a trunk as Perry delivered to the agent.

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 baggagé 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 personal baggage. The fact that Perry and other persons, on other occasions, had obtained, on passenger tickets, checks from other railroad companies for trunks containing merchandise, by representing them • as containing personal baggage," furnishes no good reason for permitting a recovery-ln the present case. There is no evidence to show that, on the occasions when Perry and other traveller’s received checks, on passenger tickets, for trunks containing jewelry, the carrier knew what were the contents of the trunks. The testimony is that John H. Perry did not know of a railroad company .which would receive and check a-trunk . as a passenger’s baggage, which was filled with valuable jewelry.

In the present case, the trunk was offered as containing the personal baggage of a passenger; the passenger did not inform the baggage agent as to the actual contents of the trunk; the agent did not know what the trunk contained; there is no evidence that any agent of the receivers had theretofore received and checked a trunk as the personal baggage of a passenger, knowing that it contained a stock of jewelry; and it does not appear that- any railroad company would issue a check to a passenger for a trunk, if previously informed that the trunk contained a valuable stock of jewelry.

The 25 cents extra paid by Mr. Perry oh account of the weight of the trunk, was paid merely for the overweight, and not at all in respect of the contents of the trunk. It was paid for so much overweight of personal baggage.

It has long, been the law that the principle which governs the compensation of carriers is that they are to be paid in proportion to the risk they assume. So long ago as the case of Gibbon v. Paynton, 4 Burrow, 2298, in 1769, it was held, in the King’s Bench, Lord Mansfield delivering the opinion, that a bailee was only obliged to keep goods with as much diligence and caution as he would keep his own, but that a carrier, in respect of the premium he was to receive, ran the risk of them, and must make good the loss, though it happen without any fault in him,- the reward making him answerable for their safe delivery; that his warranty and insurance were in respect of the reward he was to receive; and that the reward ought to be proportionable to the risk. In that case, the sum of £100 was hidden in some hay in an old nail, bag and sent by a coach and lost. The carrier had not been apprised that there was money in the bag. The same principle was applied in Batson v. Donovan, 4 B. & Ald. 21, in 1820, where it was held that a carrier was not liable for bank-notes contained in a parcel, when he had not been informed of the contents of the parcel.

This principle is commented on in Story on Bailments, 9th ed., § 565, where it is said: “ It is the duty of every person sending-goods by a carrier to make use of no fraud or artifice to deceive him, whereby his risk is increased, or his care and diligence may be lessened. And if there is any such fraud or unfair concealment, it will exempt the carrier from responsibility under the contract, or, more properly speaking, it will make the contract a nullity.”

There is a uniform series of cases on this principle, in the Supreme Judicial Court of Massachusetts. In Jordan v. Fall River Railroad, 5 Cush. 69, it was laid down that a common carrier of passengers was not responsible for money included in the baggage of a passenger, beyond the amount which a prudent person would deem proper and necessary for travel-ling expenses and personal use, or intended for other persons, unless the loss was occasioned by the gross negligence of the carrier or his servants.

In Collins v. Boston & Maine Railroad, 10 Cush. 506, it was held that the term “ baggage,” for which passenger carriers were responsible, did not include articles- of -merchandise not intended for personal use; and that a carrier was not liable for the loss of'merchandise sent by a passenger train,.by a person who expected to go himself in the same train, but did not, the goods having been lost without any gross negligence in the carrier or any conversion-by him.

In Stimson v. Connecticut River Railroad, 98 Mass. 83, it was held that a railroad company -was not liable to either owner or agent, on its ordinary contract of. transportation of a passenger, for losing a valise delivered into its charge-as his personal luggage,. but which contained only samples of merchandise, and, .with its contents, was owned by a trader whose1 travelling agent the passenger was, to.sell such goods by sample, nor in tort for the loss, without, proof of gross negligence.

In Alling v. Boston & Albany Railroad, 126 Mass. 121, the above cases in 5 Cush., 10 Cush, and 98 Mass, were cited and applied, and.it was held that if a passenger delivered to a railroad company a trunk containing.samples of merchandise, belonging to a third person, whose agent he was, to be transportéd to a place-for which , the agent had a ticket, the only contract entered into was for the transportation of the personal baggage of the agent, and the company was not .liable in contract to. the owner of the trunk for its loss,- nor in tort, except for gross negligence; and that evidence that a large part of the company’s business consisted in transporting passengers known as commercial travellers, with trunks like the one lost, containing merchandise, that such trunks were known as sample trunks and were of special construction, and that such travellers purchased tickets for the ordinary passenger trains, and received checks for their trunks, and were transported for the price of the tickets, was immaterial. -

In Blumantle v. Fitchburg Railroad, 127 Mass. 322, 326, it was held that evidence that a passenger delivered to the baggage-master of a railroad corporation a package of merchandise and received a check for it on showing his passenger ticket, that the baggage-master knew it was merchandise, and that other passengers had similar packages, would not warrant a jury in finding that the corporation agreed to transport the merchandise, or became liable for it as a common carrier, in the absence of evidence of an agreement that the merchandise should be carried as freight, or that the baggage-master had authority to receive,freight to be carried on a passenger train, or to bind the corporation to carry merchandise as personal baggage. In the opinion of the court, delivered by Chief Justice Gray, the earlier Massachusetts cases, and other cases, English and American, were cited, and it.was said; “In the case at bar the plaintiff offered and delivered the bundles as his personal baggage, and requested that they might be checked as such; and the baggage-master gave him checks for them accordingly, as he was bound to do for personal baggage of passengers by-the St. of 1874, c. 372, sec. 136. There was no evidence that either the plaintiff or the baggage-master agreed or intended that they should be carried as freight, or that the baggage-master had' any authority to receive freight on a passenger train, or to bind the corporation to carry merchandise as personal- baggage. The' case cannot be distinguished in principle from the previous decisions of this court, already cited. Evidence tending to show that the baggage-master knew or supposed the bundles to contain merchandise, or that other passengers had similar bundles, would not warrant the jury in finding that the defendant agreed to transport the plaintiff’s merchandise or become liable therefor as a common, carrier.”

In Hawkins v. Hoffman, 6 Hill, 586, it was held that the usual contract of a carrier of passengers included an undertaking to receive and transport their baggage, though nothing was said about it ; that if it was’ lost, even without the fault. x^f the carrier, he was-responsible; but that the term “baggage” in such case did not embrace samples of merchandise carried by the passenger in a-trunk, with a view of enabling him to make bargains for the sale of goods.

In Belfast &c. Railway v. Keys, 9 H. L. Cas. 556, a railway passenger, with'knowledge that the company, although allowing- each passenger to carry free of charge a certain amount of luggage, required all merchandise to be paid for, took with him, as if. it was personal-luggage, a case of merchandise, and did not pay for it -as such, and it was held that no contract whatever touching the same arose between him and the company, and that, therefore, on- the -merchandise being lost, he was not entitled to recover the value of it from' the company.

In' Cahill v. London & Northwestern Railway, 10 C. B. (N. S.) 154, in the Court of Common Pleas, where a railway company was accustomed to allow each passenger to take with him his ordinary luggage, not exceeding a given weight, without any. charge- for the carriage- of -it, a passenger took with him as-luggage a box-containing only merchandise, but not exceeding in weight the limit prescribed for personal luggage. He gave no information to the company’s servants as to the contents of the box, nor did they inquire, although the word “ glass ” was written on the box in large letters. In an action to recover against the company for the loss of the box,it was -held- that, inasmuch as it contained only merchandise, and not personal luggage, there was no contract on the part of the company to carry it, and the company was not liable for the loss. That decision was affirmed in the Exchequer Chamber, 13 C. B. (N. S.) 818. •

In Mich. Central Railroad v. Carrow, 73 Illinois, 348, a passenger on a railroad had brought to the depot a trunk whieh contained costly jewelry, gave no notice of its contents, and had it checked .as ordinary baggage, and there was nothing about the trunk indicating its contents. It was consumed by fire while being carried, the company not being guilty of gross , negligence, and it was held that the company was not liable for the contents of the trunk. It was further held, that a carrier of passengers is not bound to inquire as to the contents of a trunk delivered to the carrier as ordinary baggage, such as is usually carried by travellers, even if the same is of considerable weight, but may rely upon the representation, arising by implication, that the trunk contains nothing more than baggage; that it is the duty of a passenger having valuable merchandise in his trunk or valise, and desiring its transportation, to disclose to the carrier the nature and value of the contents; that, if the carrier then chooses to treat it as baggage, without extra compensation, the liability of the carrier will attach, but not otherwise; and that where a person, under the pretence of having baggage transported, places in the hands of the agents of a railroad company merchandise, jewelry and other valuables, without notifying them of the character and -value of the same, he practises a fraud upon the company which will prevent his recovery in case of a loss, except it occurs through gross negligence.

In Haines v. Chicago, St. Paul &c. Railway, 29 Minnesota, 160, it was held that a carrier of passengers for hire was bound only to carry their “personal baggage”; that, if. a passenger delivered to the carrier as baggage a trunk or valise containing merchandise, not his personal baggage, of which fact the carrier had no notice, the carriel*, in the absence of gross negligence, would not be liable for its loss; and that the carrier was not bound to inquire, in such a case, as to the ■ nature of the property, but had a right to assume that it consisted only of the personal baggage of the passenger.

In Pfister v. Central Pacific Railroad, 70 California, 169, it was held that a railroad ticket entitling the purchaser to transportation in the first-class passenger coaches of the seller between the points, indicated thereon, gave the purchaser the’ right to have his luggage, not exceeding the quantity specified in the ticket, .transported at the same time free of charge, but that it did not give him the right to .transport,- either in his o-wn charge 01; that of the railroad companyj,.any merchandise or property not included in the term “ luggage.”

In the present case, there is no allegation in the intervening petition of any. gross negligence-in the receivers, nor does the evidence make out any.

Yarious cases are cited on the part of the- intervenors; • but either we. do not concur in the views expressed in them, or they .are. distinguishable from the present, case. Thus, in Kuter v. Michigan Central Railroad, 1 Bissell, 35, it'was said by JudgeyPrummond, in a charge to -a jury, that, if. the railroad company knew that immigrants, like the plaintiff, were in the habit of putting valuable articles and money among their household goods, and from such-knowledge might have inferred that the box of the plaintiff might contain money, then.it became the duty of the company, to make inquiry in order to relieve. itself from liability. But we do not think that view is sound. .

In Minter v. Pacific Railroad, 41 Missouri, 503, .the merchandise in question was .fully exposed, and it was known to. the railroad company’s agent w.hat it was.

In Hannibal Railroad v. Swift, 12, Wall. 262, it was held by this, court that where a railroad, .company received for transportation, in cars which accompanied its passenger trains, property-of a passenger, other than his baggage, in relation to which-no fraud or concealment was.-attempted or practised upon its employes, it must be considered to have assumed,.with reference to that property, the.liability of a common carrier of merchandise. But that is not the. present case.

So,.also, the case of Stoneman v. Erie Railway, 52 N. Y. 429, was one. where a carrier of passengers, in addition to passage money, demanded, and received pom a passenger compensation as freight for the transportation of packages containing merchandise and baggage; and it .was held, in the.absence of evidence of fraud or concealment on the part of the passenger as fo the contents of the packages, .that such carrier, in case of lossy was liable-for the .merchandise as well as-the baggage. The same principle was applied in Sloman v. Great Western Railway, 67 N. Y. 208.

In Millard v. Missouri, Kansas & Tex. Railroad, 86 N. Y. 441, the same principle was applied in a case where the railroad company’s agent was advised by a person who had purchased a passenger ticket, of the fact that a trunk contained merchandise, and the agent demanded and received extra compensation for its transportation.

The same rule was applied in Texas & Pacific Railroad v. Capps, 2 Tex. Ct. App. Civil Cases, § 34. In Jacobs v. Tutt, 33 Fed. Rep. 412, the suit was against the same receivers as in the present case, to recover the value of a trunk and contents, which were stolen, and the trunk was the trunk of a jewelry salesman, containing his stock in trade; the agent who took it knew that fact, and the plaintiff had made no effort at concealment; and it was held that the receivers were liable as for the loss of ordinary baggage on the railroad. .

¥e have examined the other cases cited on behalf of the intervenors, namely, Butler v. Hudson River Railroad, 3 E. D. Smith, 571; Hellman v. Holladay, 1 Woolworth, 365; Railroad Co. v. Fraloff, 100 U. S. 24; and Talcott v. Wabash Railroad, 21 N. Y. Suppl. 318, and do not think they have any application to the present case.

The case of Switzerland Marine Ins. Co. v. Louisville, Cincinnati & Lexington Railway Co., 13 Int. Rev. Record, 342, is a charge to a jury that the item “ baggage ” does not include articles of merchandise for sale or for use as samples, and not designed for the use of the passenger, and that, if the passenger has such articles checked and received by the carrier as baggage, the carrier will not be liable for them if lost or injured, unless it was informed or was presumed to have known that the articles were merchandise, or unless it was the established custom or usage of the defendant to receive and transfer them as baggage, or unless they were lost by the gross negligence of the defendant. After a verdict and judgment for the plaintiff the case was brought to this court by a writ of error, and affirmed here by a divided court. 131 U. S. 440 ; 31 L. C. P. Co. 204.

The decree of- the Circuit Court, must be reversed, and the case be remanded to it with a direction to dismiss the petition of the intervenors. 
      
       The master states that a stipulation was made before Mm by the parties that he shoiild report his findings in the premises, though no such stipulation. is found in the record.
     