1. The obligations and liabilities of a common carrier are not
dependent upon contract, though they may be modified and limited by
contract; they are imposed by the law, from the public nature of
his employment.
2. If a common carrier of passengers and of goods and
merchandise have reasonable ground for refusing to receive and
carry persons applying for passage, and their baggage and other
property, he is bound to insist
at the time upon such ground if desirous of avoiding
responsibility. If not thus insisting, he receives the passengers
and their baggage and other property, his liability is the same as
though no ground for refusal existed.
3. The liability of a common carrier of goods and merchandise
attaches when the property passes, with his assent, into his
possession, and is not affected by the carriage in which it is
transported or the fact that the carriage is loaded by the owner.
The common carrier is an insurer of the property carried, and upon
him the duty rests to see that the packing and conveyance are such
its to secure its safety.
4. It is not a ground for limiting the responsibility of a
common carrier, where no interference is attempted with his control
of the property carried, that the owner of the property accompanies
it and keeps watch for its safety.
5. Where a railroad company receives for transportation, in cars
which accompany its passenger trains, property of a passenger other
than his baggage, in relation to which no fraud or concealment is
practiced or attempted upon its employees, it assumes with
reference to the property the liability of a common carrier of
merchandise.
6. Surgical instruments, in the case of a surgeon in the army
traveling with troops, constitute part of his baggage.
Swift, a surgeon in the army of the United States, brought a
suit in the court below against the Hannibal & 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,
Page 79 U. S. 263
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 9,000 cartridges were placed. The car
was well built and in a secure condition, and the plaintiff was
Page 79 U. S. 264
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,
Page 79 U. S. 265
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 cartridges 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 $1,000 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 $3,129.60, for
which judgment was entered in favor of the plaintiff, and the
railroad company brought the case here.
Page 79 U. S. 270
MR. JUSTICE FIELD delivered the opinion of the Court.
Two questions are presented by the record for our determination:
1st, whether upon the facts stated in the agreed case the railroad
company was liable as a common carrier for the safe conveyance of
the baggage and other property of the plaintiff, and 2d whether
there was any error in the assessment of damages as allowed by the
circuit court.
The railroad company was chartered by the Legislature of
Missouri in 1847, and for many years its railroad between the City
of Hannibal, on the Mississippi River, and the City of Saint
Joseph, on the Missouri River, has been constructed and in
operation. Between those places the company was, in 1861, a common
carrier, over its road, of passengers and their baggage, and of
goods and merchandise. As such carrier, its duties and liabilities
were plain; as a carrier of passengers it was bound, unless there
was reasonable ground for refusal, to take all persons who applied
for passage, and their baggage, and as a carrier of goods, to take
all other property offered for transportation, and was responsible
for the safe conveyance of the baggage and other property to the
point for which they were destined, or the termination of the road,
unless prevented by inevitable accident or the public enemy. Its
obligations and liabilities in these respects were not dependent
upon the contract of the parties, though they might have been
modified and limited by such contract. They were imposed upon it by
the law, from the public nature of its employment, independent of
any contract.
If at any time reasonable ground existed for refusing to
Page 79 U. S. 271
receive and carry passengers applying for transportation, and
their baggage and other property, the company was bound to insist
upon such ground if desirous of avoiding responsibility. If not
thus insisting, it received the passengers and their baggage and
other property, its liability was the same as though no ground for
refusal had ever existed.
It does not appear from the agreed case that the company refused
to transport over its road the troops of the United States and the
plaintiff and his family who accompanied them when they arrived, in
December, 1861, at Saint Joseph, or their baggage, camp equipments,
arms, munitions, and other property, but only that it refused to
enter into any special contract for the transportation on account
of the danger to the troops from the insurrectionary condition of
the country through which the road ran and the frequent
depredations committed by armed bands of rebels upon the railroad
and its track, bridges, depots, and station houses.
It was usual at the time and during the entire war for railroad
companies to transport troops of the United States, with their
baggage, at a less rate per head, and their equipments, arms, and
munitions at a less rate per pound, than the prices paid by
ordinary passengers for similar services, and it was undoubtedly
the desire of the commanding officer in this case to have a special
contract as to the amount of compensation to be paid for the
transportation. As we read the agreed statement, it was only a
contract of this kind, fixing the rate of compensation, which was
refused.
Whether the reasons assigned would also have justified a refusal
to transport the troops and the plaintiff, with his family and
their baggage and other property, it is unnecessary to determine.
It is enough to fasten a liability upon the company that it did not
insist upon these reasons and withhold the transportation, but, on
the contrary, undertook the carriage of men and property without
being subjected to any compulsion or coercion in the matter.
The liability of the company was in no respect affected by the
fact that the baggage, camp equipments, arms, and munitions of the
troops, and the property of the plaintiff were
Page 79 U. S. 272
placed in a separate car, selected by the commanding officer out
of several cars standing in the yard of the company, and not in its
regular baggage car, or by the fact that the car was loaded by some
of the soldiers detailed for that purpose, and not by the servants
of the defendant. The car selected belonged to the company, and
after it was loaded and locked by the commanding officer, the
agents and employees of the company took charge of it and placed it
in the regular train, which transported the troops and the
plaintiff and his family, next to the tender of the engine. The
liability of the company attached when it thus took possession of
the property. No objection was made at the time to the selection of
a separate car for the baggage and other property of the troops and
the plaintiff, or to the kind of property offered for
transportation, or to the manner in which the property was packed,
or to the locking up of the car by the commanding officer. If
objection existed on any of these grounds or on any other ground
not concealed but open to the observation of the company, it should
have been stated before the property was received. The company
might then have insisted, as a condition of its undertaking the
transportation, upon the selection of a different car, or upon
superintending its loading, or upon the possession of its key, or
upon all of these things. Not having thus insisted, but having
received the property and undertaken its transportation in the car
in which it was placed, the company assumed, with respect to it,
the ordinary liabilities of a common carrier.
The case of
Mallory v. Tioga Railroad Company,
* is much stronger
than this. There the company only agreed with the plaintiff to
furnish the motive power to draw his cars laden with his property,
he to load and unload the cars and to furnish brakemen, to be under
the control of the conductor of the train, to accompany them, yet
the company was held liable, as a common carrier, for injuries to
the cars and the property of the plaintiff not caused by inevitable
accident or the public enemy. The court did not consider
Page 79 U. S. 273
the fact that the property was transported in the cars of the
plaintiff, and that the cars were loaded and unloaded by him,
affected, in any respect, the liability of the company, the entire
train in which the cars were moved being, whilst on the route,
under the control and management of its servants and employees.
In all such cases, the liability of the common carrier attaches
when the property passes, with his assent, into his possession, and
is not affected by the car in which it is transported, or the
manner in which the car is loaded. The common carrier is regarded
as an insurer of the property carried, and upon him the duty rests
to see that the packing and conveyance are such as to secure its
safety. The consequences of his neglect in these particulars cannot
be transferred to the owner of the property.
It does not distinctly appear, from the agreed case, whether any
troops were detailed to guard the car which contained their
property and that of the plaintiff, except while the car was being
loaded. But if it were admitted that a special guard was appointed
for the car on the route, the admission would not aid the company
or relieve it of liability. The control and management of the car,
or of the train, by the servants and employees of the company, were
not impeded or interfered with; and where no such interference is
attempted, it can never be a ground for limiting the responsibility
of the carrier that the owner of the property accompanies it and
keeps a watchful lookout for its safety.
The ruling of the court upon the findings of the referee,
appointed to ascertain the damages sustained by the plaintiff, does
not appear to us to be open to any valid objection. A considerable
portion of the property, it is true, was not personal baggage,
which the company was obliged to transport under the contract to
carry the person; nor does it appear that it was offered to the
company as such. It embraced buffalo robes, hair mattresses,
pillows, writing desks, tables, statutory, and pictures, in
relation to which there could be no concealment, and it is not
pretended that any was attempted. Where a railroad company receives
for transportation,
Page 79 U. S. 274
in cars which accompany its passenger trains, property of this
character, in relation to which no fraud or concealment is
practiced or attempted upon its employees, it must be considered to
assume, with reference to it, the liability of common carriers of
merchandise. It may refuse to receive on the passenger train
property other than the baggage of the passenger, for a contract to
carry the person only implies an undertaking to transport such a
limited quantity of articles as are ordinarily taken by travelers
for their personal use and convenience; such quantity depending of
course upon the station of the party, the object and length of the
journey, and many other considerations. But if property offered
with the passenger is not represented to be baggage, and it is not
so packed as to assume that appearance, and it is received for
transportation on the passenger train, there is no reason why the
carrier shall not be held equally responsible for its safe
conveyance as if it were placed on the freight train, an
undoubtedly he can make the same charge for its carriage.
Here, two companies of artillery in the army of the United State
sought transportation with their arms, equipments, and ammunition.
The plaintiff, as surgeon in the army, was ordered to accompany the
troops, and for him and his family and his property transportation
was also sought as part of the general transportation for the whole
command. On arrival at Hannibal, the amount of compensation for the
entire transportation, which included carriage of men and property,
was agreed upon and was subsequently paid. It is to be presumed
when the compensation was fixed that the company took into
consideration not merely the peculiar kind of property carried by
the troops, which could hardly be treated as simple baggage of
travelers, but also the property besides baggage possessed by the
plaintiff and his family. The value of the unpublished treatise on
veterinary surgery, and of the jewelry, as estimated by the
referee, was excluded in the amount allowed. The value of the
surgical instruments was properly included. Instruments of that
character, in the case of a surgeon in the army traveling with
troops,
Page 79 U. S. 275
may properly be regarded as part of his baggage. He may be
required to use these instruments at any time, and must accordingly
have them near his person where they can be had upon a moment's
notice. Whether the table silverware of the plaintiff, although of
a very limited amount, can be regarded in the same manner, admits
of much doubt. It does not appear that the plaintiff or his family
had any occasion for this ware on the cars, or even that they
carried it with any intention of using it on the route. It is not,
however, necessary to charge the defendant that it should be
treated as baggage. Its value may be properly included in the
amount of damages, considering it only as part of the property
which the company received as a common carrier of goods, and
against the loss of which, from any cause but inevitable accident
or the public enemy, it was, as such carrier, an insurer to the
plaintiff.
We see no error in the judgment of the circuit court, and it is
accordingly
Affirmed.
* 39 Barbour 488.
