Hannibal Railroad v. Swift
ERROR to the Circuit Court for the District of Missouri.
Swift, a surgeon in the army of the United States, brought a suit in the court below against the Hannibal and St. Joseph Railroad Company, to recover the value of certain baggage and personal property, owned by him, and lost when in a course of transportation on the said road.
The case, which was agreed on by the parties, and tried by the court without a jury, was thus:
The plaintiff had been stationed as a surgeon in the army, with his wife and family, previous to the rebellion, at Fort Randall, Dacotah Territory. A part of the garrison, with the plaintiff, having been ordered to report for duty at Cincinnati, arrived in December, 1861, at St. Joseph, Missouri, where they were to take the cars of the railroad of the company now sued, for Hannibal, on the Mississippi River, the eastern end of the road. The plaintiff was accompanied by his wife and family, and they carried with them their wearing apparel, some household outfit, and other property.
On their arrival at St. Joseph, the commanding officer gave notice to the railroad company that he required transportation for the troops, their baggage, camp equipments, arms, munitions, and the chattels of himself, as well as those of the plaintiff, from St. Joseph to Hannibal. At that time nearly all that portion of the State of Missouri through which the railroad ran, was in a state of rebellion against the United States. For some months previously, armed bands of rebels had committed frequent depredations on the railroad by firing into trains, burning bridges, trains of cars, and station-houses, destroying culverts, and tearing up the track. The railroad agents at St. Joseph communicated these facts to the commanding officer of the troops, and so did the officer who was then in command of United States troops at St. Joseph. On account of the great danger to the command along the line of the road from these bands, the officers of the road refused to make any contract for the transportation of the command over the road, and none was made or signed until after the command had arrived at Hannibal, at which place the amount of compensation for transportation was agreed upon.
On demand of the commanding officer the railroad company furnished transportation for the troops, their baggage, camp equipments, arms, munitions of war, and the chattels of himself as well as those of the plaintiff. Out of several cars standing in the yard of the railroad company at St. Joseph, the commanding officer selected the car in which the baggage belonging to the officers and men of the command, its camp equipage, arms, and munitions, also the property of the plaintiff, for which this action was brought, were loaded. In the said car 9000 cartridges were placed. The car was well built and in a secure condition; and the plaintiff was aware that his property was placed in that car. The commanding officer, as is customary where troops are moving by public conveyance from one point to another, detailed some men from his command to guard that car, while another portion packed and loaded it with the property mentioned. The soldiers carried their arms in their hands for use in case of an attack from the enemy. None of the railroad company's officers, agents, or servants had anything to do with selecting, packing, or loading the car selected, but after the same was completed, and the car locked up by the commanding officer, the agents of the railroad company placed the car in the train next to the tender of the engine that moved the car, and the train upon which the command were transported from St. Joseph to Hannibal. The train in which the car was placed was a regular passenger train of the railroad company, and was well manned and equipped. It had a baggage car attached to it and a baggage-master in charge of the car, whose duty it was to receive and take charge of all baggage of passengers transported on said train, and who did take charge of all baggage of passengers on the train that was offered him, checks being given therefor. There was ample room in the baggage car for the plaintiff's baggage, and the baggage car and its contents were not burned or destroyed. The car containing the property sued for was the only one burnt, and no part of the train was attacked or molested by armed rebels or otherwise as known. The plaintiff did not place the property sued for in charge of the baggage-master or other agent or servant of the defendant, except as above stated, nor was the same ever received by the defendant, except as thus stated, that is, by taking possession of the car and placing it in the train. It did not appear, from anything in the agreed case, that the control and management of the car or of the train by the agents and servants of the defendant were subsequently interfered with by the commanding officer, or the plaintiff, or any of the troops.
The car in which the property was loaded as above mentioned, whilst on the way from St. Joseph to Hannibal, from some cause unknown, and, so far as known, without any fault of the agents, or servants of the railroad company, except as disclosed above, took fire and, with most of its contents, was consumed. After the discovery of the fire most of the contents of the car could have been saved, but from fear of injury be explosion of the cartidges known to be therein.
A surgeon in the United States Army is entitled by army regulations to 800 pounds of baggage.
The court held that the plaintiff was entitled to recover, and the case went to a referee under the stipulation of the parties to ascertain the damages sustained.
The property lost, for which the action was brought, consisted of the wearing apparel of plaintiff and family; table furniture, including silverware to the value of $204.50; three buffalo robes, two deer robes, hair mattresses and pillows, writing-desks, tables, engravings, pictures, and statuary, and numerous articles of a household outfit; besides jewelry to the value of $787.50; a set of surgical instruments of the value of $350, and an unpublished manuscript on veterinary surgery. The property weighed twenty-seven hundred pounds.
The value of the jewelry, as above stated, and $1000 as the value of the manuscript, were allowed by the referee in assessing the damages. He also allowed interest on the damages from the time of the loss to the filing of his report.
The Circuit Court, however, on exception, disallowed the value of the jewelry and the manuscript, as well as the interest given by the referee, allowing interest on the principal sum only from commencement of the suit.
The following exceptions of the defendant to the referee's report were overruled by the court: (1) To the allowance of the value of more than 800 pounds of baggage. (2) To the allowance of the value of the silverware. (3) To the allowance of the value of plaintiff's surgical instruments.
The court sustained the assessment for the sum of $3129.60, for which judgment was entered in favor of the plaintiff, and the railroad company brought the case here.
Mr. James Carr, for the plaintiff in error:
The goods were never delivered to the railroad company. It had expressly refused to receive them. The car in which they were shipped was selected by the officer in command of the troops; it was guarded, loaded, and packed by them, and then locked by the officer. They were in the exclusive custody and control of the officer and men. He and his men were the agents of the plaintiff for this particular purpose. They continued in this exclusive custody and control from the time that the goods were loaded, until the car in which they were, with its contents, was burnt. It was the only car in the train that was burnt. If the plaintiff desired to hold the company responsible as a common carrier why did he not deliver his goods to its servants, and let them select the car and pack and load to suit themselves? The company ought not to be held responsible for the unskilful or negligent loading and packing of the agents of the plaintiff.
But if it be held that there was a delivery to the company, then the delivery was obtained by compulsion, and is not binding.
The plaintiff was guilty of negligence in having his goods loaded in the car with the nine thousand musket cartridges; things of a highly combustible nature, and liable to ignite by the friction occasioned by the oscillation of the train. He voluntarily had his goods placed in that car. He had the privilege of putting them in the baggage car in charge of the baggage-master. He did not do so. The baggage car was not burnt or anything in it injured. Volenti non fit injuria.
The army regulations entitled the plaintiff to transportation for only eight hundred pounds of baggage; whereas the fact is, that he had two thousand seven hundred pounds of things, which he was having transported at the expense of the government, and at government rates, and under the aegis of the government. Nor was what he had baggage. Silverware is not baggage;  nor samples of merchandise;  nor a trunk of merchandise;  nor bank notes in a travelling trunk. 
Mr. J. Hubley Ashton, contra:
The case shows that on the demand of the officer in command of the troops, the defendant furnished transportation for them, as well as the plaintiff, and the public and private property which they brought; that the car in which this property was stored was placed by the agents of the company in the train on which the command was carried; and that, on the arrival of the troops at Hannibal, the compensation, payable for transporting the troops and the property, was fixed by agreement between the proper officer and the company, and the amount afterwards received by the defendant from the United States. The payment made by the government was thus for one entire service, just as if the amount had been agreed upon and paid before the troops started, and the company had then furnished cars to convey them and their baggage and the public property in their charge. The compensation received was none the less because it was adjusted afterwards.
The only reason why no contract was made before the train started was, that the company did not desire to be responsible for any loss happening through rebel violence. At that early day of the rebellion it was doubtless supposed that such loss would not be within the exception of the act of the public enemy.
No express stipulation was made, however, before the train went off, discharging the company from any of the duties annexed to its employment.
Now, in view of these facts, it is vain to say that this property was never delivered to the defendant, and that it refused to receive the goods.
The arrangement in regard to the baggage was made by the proper officer with the company. That this arrangement contemplated a separate car for all the property with the command, and not the ordinary conveyance in the regular baggage car, as in the case of a private passenger, cannot affect the carrier's responsibility. Nor can it matter that the officer selected the car. The car was the defendant's. It must be equally unimportant that the soldiers loaded the car, and not the servants of the company, so far as the question of the delivery of the goods to it for carriage is concerned. A company will not be exonerated, because the owner of the goods furnishes his own car, and assumes the loading and unloading, and furnishes a brakeman to accompany the car. This is expressly decided in Mallory v. Tioga Railroad.  Nor will it be if the goods are placed in a crate belonging to an express company, and placed in charge of the carrier.  Nor where a warehouseman, having goods to send by rail, applied to the company, who ran a car upon a side track to the warehouse.  Nor if the owner accompanies the goods to look after them.  Nor where a passenger on a boat takes charge of his property after it is placed on the boat.  If the carrier receive an article for carriage, though not bound to receive it at the time or place, or in the condition in which offered, he is responsible. 
No question of negligence, in the matter of loading the car, can arise here, as the agreed case expressly finds that the car took fire 'from some cause unknown.' It cannot be inferred here and now that it was fired by the explosion of the cartridges, or by a spark from the engine. The latter is, however, the most probable theory, as the defendant's agents placed the car next to the tender of the engine, the unsafest place of all for it in the train.
On the question of damages. As to the weight of baggage. The defendant received from the government the agreed compensation for its carriage along with the rest of the property. Presumably, the proper fare and freight for persons and property accompanying the command were agreed upon; and the company received all it was entitled to for the service. It is not found that it claimed any greater compensation than it got. If the government paid for more bagage than the officer was entitled to carry, under regulations, in the quartermaster's wagons, that was its affair.
The company furnished transportation for all the property with the command, and incurred the carrier's responsibility for all. If some of the property was not strictly baggage, the acceptance of it for carriage renders the company liable for it. 
The term baggage, is necessarily a relative term, and must be defined by the facts and circumstances of each case; including the object and length of the journey, and the habits and condition in life of the passenger. It is a question for the jury, rather than the court.  Thus a proper sum of money for travelling expenses, contained in a trunk, is to be considered part of the passenger's personal baggage; and the amount must be determined by the whole journey, and include accidents, sickness, and sojourns by the way. So manuscript books, the property of a student, and the papers and books of a lawyer, in travelling on business.  A valuable diamond breastpin, a gold breastpin, and a miniature set with gold, have been included in a lady's baggage.  So a watch in a trunk. 
The only objection that can be made to the allowance of the little silverware is, that it is not found that it was necessary for plaintiff's family. But this court will presume that all matter of fact was found that may be necessary to support the judgment. Besides, the finding is that it was household outfit. And in the case of an officer travelling with his family from one post to another, it would be included in the term 'baggage.'
As for the surgical instruments, it has been held that these, in the case of a medical man, are baggage. 
Mr. Justice FIELD delivered the opinion of the court.
^1 Bell v. Drew, 4 E. D. Smith, 59.
^2 Hawkins v. Hoffman, 6 Hill, 586; Chicago, &c., Railroad Co. v. Marcus, 38 Illinois, 219.
^3 Pardee v. Drew, 25 Wendell, 459; Collins v. Boston & M. Railroad Co., 10 Cushing, 506.
^4 Orange County Bank v. Brown, 9 Wendell, 86.
^5 39 Barbour, 488.
^6 New Jersey Navigation Co. v. Merchants' Bank, 6 Howard, 344.
^7 Illinois Central Railroad v. Smyser, 38 Illinois, 361; Merritt v. Old Colony Railway, 11 Allen, 80.
^8 Robinson v. Dunmore, 2 Bosanquet & Puller, 416.
^9 Fisher v. Clisbee, 12 Illinois, 344.
^10 Pickford v. Grand Junction Railway, 12 Meeson & Welsby, 766.
^11 Minter v. Pacific Railroad, 41 Missouri, 507; Glasco v. New York Central Railroad, 36 Barbour, 561; Cahill v. London and N. W. Railway, 13 C. B. (N. S.), 818, Exchequer Chamber; Butler v. Hudson River Railroad, 3 E. D. Smith, 571.
^12 1 Smith's Leading Cases, 6th American edition, 382; Merrill v. Grinnell, 30 New York, 609; Woods v. Devin, 13 Illinois, 746; Parmelee v. Fischer, 22 Illinois, 212.
^13 Hopkins v. Westcott, 6 Blatchford Circuit Court, 64.
^14 McGill v. Rowand, 3 Barr, 452.
^15 Jones v. Voorhees, 10 Ohio, 145.
^16 Giles v. Fauntleroy, 13 Maryland, 129.
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