KUTER v. MICHIGAN CENT. R. CO., 14 F. Cas. 884

DEUMMOND, District Judge (charging jury). The first thing to be considered is as to the proper construction of the charter. By it they were required to transport all merchandise and property. It is insisted by the plaintiff’s counsel that this includes money. “Property” is a word of very enlarged meaning. It comprehends ordinarily everything which is valuable and is subject to disposition and to protection under the law. But it is plain, in order to arrive at the true meaning of the legislature when using the word in this charter, we must look at the connection and circumstances. What was the intent of the law?

The state was chartering a railroad company to perform all the usual business and offices of such a company, and we must construe this law with reference to tlie subject matter of the grant. At the time this charter was granted, it was not incumbent, as a general thing, on common carriers of merchandise and property, to transport money. They might become • carriers of money, undoubtedly, but this was considered out of the ordinary line of business, and subject to unusual risks, requiring corresponding care and compensation. The word “property,” as used in the charter, must certainly have some limitation.

It did not include all kinds of property. We must understand the meaning to be such property as is usually carried on a railroad. If it had appeared by the evidence that •it was the practice of railroad companies to transport all money offered, then it might be different. As it is, I think a fair

interpretation of their charter would justify a refusal on their part to act as common carriers in the carriage of money. But if it be conceded that they are not obliged by their charter to be common carriers of money, there is no doubt they may become so by their acts, — they may hold themselves out to the world as carriers of money.

It seems that the defendants did transport money for the express company, which, as well as all other property carried by the1 express company, was -under the sole charge of a messenger of the latter company, and at their risk, under a special contract, which certainly greatly restricted the common law liability. NOTE. • Common carriers are not liable for the loss of money packed among other goods in a box, in such a way as to deceive and mislead them. If they are to be held liable, they should be told of its contents. Chicago & A. R. Co. v. Thompson, 19 Ill. 578.

A coriimon carrier may qualify his liability by a general notice of any reasonable requisition to be observed as to the manner of delivery, entry of parcels, information of contents, etc. Merriman v. The May Queen [Case No. 9.481], But he cannot, by a general notice, limit, avoid or restrict the liability devolved on him by the common law, or the salutary grounds of public policy. Id. In order to charge common carriers as insurers, they must be treated in good faith: concealment, artifice, or suppression of the truth, will release them of this liability. American Exp. Co. v. Perkins. 42 Ill. 45S.

Although a common carrier is answerable for the loss of a parcel, whatever its value, unless he make a special acceptance, if the consignor studiously conceal from the carrier, or misrepresent the value or nature of the goods shipped, the ship owner is not liable if the goods are purloined on the passage, but the wrong-doer would be. Relf v. Rapp, 3 Watts & S. 21. Labelling a box or trunk entrusted to a carrier as containing'articles of a different nature and value from its real contents, will dispense with further inquiry as to its contents. Id.

A carrier of passengers is liable, if baggage be lost, though without the carrier’s fault. Hawkins v. Hoffman. 6 Hill, 586. By "baggage” is not understood “money,” unless it be for traveling expenses. Id. But that circumstance alone did not make them common earners of money, and subject to the extraordinary responsibilities of common carriers of money.

If you shall believe the defendants were common carriers of money, and that no notice of any restriction 01 limitation of their liability was brought home to the plaintiff, then the plaintiff, subject to the qualification hereafter stated, was not bound to disclose to the defendants the contents of the box in order to render them liable; but if the defendants wished to guard themselves against risk, they should have inquired as to the contents of the box. As a general rule, a person who delivers to a carrier any

article or property, of which the latter is a common carrier, is not bound to disclose the kind, quality or value of such property, and the carrier, in the absence of notice, or fraud, or artifice on the part of the person making the delivery, is liable notwithstanding no disclosure is made. But this rule must be taken and applied subject to the usual course of business, and this is a very important qualification of the rule itself.

If, in point of fact, the property is put up or packed in such a manner as is calculated to deceive the earner, then he does not become subject to the extraordinary responsibilities of a common carrier. But if there may be justly any ambiguity of doubt about the contents of a package or box, resulting from its examination or appearance, then the consequences of such doubt must fall upon the carrier, if he do not make inquiry.

The thing must be calculated to deceive, and if you believe that it was contrary to the usual course of business for money to be packed in the way proved in this case; that it was calculated to deceive the defendants as to the value of the contents; or that it operated as a fraud upon the defendants, though none was intended, — then they are not liable as common carriers. And by “operating as a fraud,” I mean that by no reasonable inference could the defendants suppose the box contained what was actually within it.

It is upon this principle that common carriers of passengers are liable for the ordinary baggage of a passenger and the money for usual traveling expenses, which may be in a trunk, but are not liable for a sum of money beyond this limit, nor for merchandise found therein.

If, however, the defendants knew, as is insisted they did, that parties emigrating like the plaintiff, were in the habit of packing up valuable articles and money among their household wares, and, from such knowledge, might infer that this box of the plaintiff's might contain money, then it was their duty to make inquiry, in order to relieve themselves from liability. There is a count for a general bailment.

If it be true that these defendants were not common carriers of money, or if there was any improper means or artifice made use of to conceal the value of the box, or to mislead, or to deceive the defendants, they might not be liable as common carriers; still, in every case where a party delivers to a common carrier an

article of property to be transported to a particular place, for a certain sum, if there be any facts in the case which would relieve the carrier from the responsibilities of a common carrier, as by special contract, or notice, or concealment of the value of the

article — actual fraud being absent — there is an implied contract on the part of the carrier to take due care of. the property. This only changes the obligations of the carrier, and does not free him from all responsibility. He is still bound to the use of ordinary care.

If in this case you shall believe that the defendants were not common carriers of money, or that this money was so placed as to mislead or deceive the defendants as to the value of the box and its contents, yet if you shall also believe that the defendants have been guilty of negligence, if they have not taken ordinary care of the box and its contents, then the defendants are liable for the loss.

But if, on the contrary, you shall believe the defendants were not guilty of negligence, but exercised ordinary, reasonable care about the property, — and by ordinary care is to be understood such care and diligence as a prudent man exercises over his own property, supposing it to be what it purported to be from the general appearance and aspect of the box, — then they are not liable for the loss of the money.

But if you shall believe there was an improper concealment of the value of the contents of the box, and this concealment was the cause of negligence, if any negligence existed, then the defendants cannot be held liable for what was the result of the act or conduct of the plaintiff. It is admitted by the plaintiff’s counsel that if you shall be of opinion that the defendants, as to the money, were mere ordinary bailees, it devolves upon the plaintiff to prove affirmatively that the defendants have been guilty of negligence.

A common carrier is liable for money stolen from a passenger’s trunk, which was placed there byhim forhis personal use and traveling expenses; but not for what he put there to use in buying clothing. Hickox v. Naugatuck R. Co.. 31 Conn. 284. A gold watch and chain, and coin, are not deemed baggage, asbetweenpassengerandcarrier. The Ionic [Case No. 7.0591. See case of Woodward v. Illinois Cent. R. Co. [Cases Nos. 18,006, 18,007]; also, Citizens’ Bank v. Nantucket Steamboat Co. [Case No. 2,730], As to money carried in a trunk, see Orange County Bank v. Brown, 9 Wend. 85; Gibbon v.

Paynton. 4 Burrows, 2298; Batson v. Donovan. 4 Bam. &• Aid. 21. Carrier is liable for a reasonable amount of bank bills carried in a trunk. Illinois Cent. R. Co. v. Copeland, 24 Ill. 332; Merrill v. Grinnell. 30 N. Y. 594. Not. however, beyond what is necessary for personal expenses. Davis v. Michigan S. & N. I. R. Co.. 22 Ill. 279: Hickox v. Naugatuck R. Co.. 31 Conn. 2S1. And held not liable even for that amount. Grant v. Newton, 1 E. D. Smith, 95. This was, however, in an inferior court, and the rule has not been sanctioned by higher authority. A watch properly carried in a trunk. Jones v.

Yoorhees. 1Ó Ohio. 145; Pudor v. Boston & M. R. Co., 20 Me. 458. As to limitation of responsibility, by notice or contract, see Parnham v. Camden & A. R. Co.. 55 Pa. St. 53: Stedman v. "Western Transp. Co., 48 Barb. 97; Prentice v. Decker. 49 Barb. 21; Limburger v. Westcott. Id. 283; Belger v. Dinsmore, 51 Barb. 69; Betts v. Farmers’ Loan & Trust Co., 21 Wis. 80: Boorman v. American Exp. Co., Id. 152; Evansville & C. R. Co. v. Young, 28 Ind. 516; American Exp. Co. v. Sands. 55 Pa. St. 140. A passenger who has surreptitiously introduced into a coach an

article of great value, for the purpose of getting it carried for nothing, cannot recover in case of loss. If. however, the carrier learns the fact, and charges accordingly for the

article as extra baggage, he would then become liable. Heilman v. Holladay [Case No. 6.-340], Consult 2 Kent. Comm. 603: Ang. Carr. 115. 116: Story, Bailm. §§ 5C5-569; 2 Pars. Cont. 254, 255.