A new trial was granted by the court below solely on the ground that the referee gave judgment in favor of the plaintiff for the $800 in gold, found to have been in the trunk at the time of its loss. GROVER, J., puts himself exclusively on this ground. And, although MARVIN, J., discusses several other questions, and expresses doubts whether the referee did not err in deciding some of them, yet he finally concurs with Justice GROVER for reversal upon the ground taken by him. This being so, we must consider all the other questions raised on the trial to have been decided in favor of the appellant, and they are not before us for review on this appeal.
A contract by a common carrier of passengers, to carry a passenger from one place over his line or route to another, obliges the carrier not only to carry the passenger but a reasonable amount of personal baggage, although nothing is received or paid for this carriage of the baggage in addition to that paid for the carriage of the passenger. (Angell on Carriers, § 107, 108, 109; Hawkins v. Hoffman, 6 Hill, 586; Powel v.Myers, 26 Wend. 591; Orange Co. Bank v. Brown, 9 Wend. 85;Camden Amboy R.R. Co. v. Burke, 13 id. 611; Hollister v.Nowlen, 19 id. 239; Cole v. Goodwin, id. 251.)
The liability of the carrier for the baggage of a passenger is the same as for freight. He is liable as insurer for both. (Parsons' Mercantile Law, 226, 227; 2 Kent's Com. 602;Hollister v. Nowlen, 19 Wend. 234; Cole v. Goodwin, id. 251.)
A carrier may, by notice, limit his liability for goods sent by him to an amount to be named by him, unless the contents of a box, bale, or parcel, if they exceed such sum, be disclosed to him to the end that he may demand such additional sum for his risk as may be agreed upon. *Page 616 (Angell on Carriers, § 232 to 236; Clay v. William, 1 H. Black, 289.)
In the absence of an express agreement or notice limiting liability, a carrier of freight is liable for property delivered to him for carriage without regard to the kind or value. In 2 Kent's Com. 603, it is said: The common carrier is answerable for the loss of a box or parcel of goods though he be ignorant of the contents, or though those contents be ever so valuable, unless he made a special acceptance. But the rule is subject to a reasonable qualification; and, if the owner be guilty of any fraud or imposition in respect to the carrier, as by concealing the value or nature of the article, or deludes him, by his own carelessness in treating the parcel as a thing of no value, he cannot hold him liable for the loss of the goods.
Had the trunk in question been delivered to the defendants to be carried as freight, they would have been most clearly liable for its contents. There was no notice limiting their liability, or requiring passengers to disclose the contents of their trunks. On the evidence there is no ground whatever for imputing to Strachwitz fraud or concealment. The defendants' agent, Rickerts, inquired of S. whether the trunk was valuable, and he was told that it was. This was all S. was called on to say, unless further inquiries were put to him, and enough was said to inform the defendants that if parcels were to receive attention in proportion to their value, the trunk in question needed such care, or if the defendants were entitled to demand an additional price for the increased risk, that the trunk was one which justified such charge. But neither Rickerts, nor any officer of the ship made any further demand as to the contents of the trunk or their value, nor was any further sum for its carriage demanded. S. it seems to me said and did all that could be reasonably required of him to protect the defendants.
The trunk is to be treated as the baggage of Strachwitz, and not merely as freight. And being baggage the defendants *Page 617 become liable only for such as a traveler usually carries with him for his personal convenience. This embraces such articles as it is usual for persons to carry with them whether from necessity or for convenience or amusement. Tools used by the passenger in his trade; (Davis v. Cayuga Susquehanna R.R. Co., 10 How. Pr. 330;) gems; (Same and Van Horn v. Kermit, 4 E.D. Smith, 453;) a watch and such jewelry as is usually worn about the person; (McCormick v. Hudson River R.R. Co., 4 E.D. Smith, 181;) money for traveling expenses. (Duffy v. Thompson, 4 E.D. Smith, 178; Orange Co. Bank v. Brown, 9. Wend. 85;Grant v. Newton, 1 E.D. Smith, 95; Angell on Carriers, § 115;Jordon v. Fall River R.R. Co., 5 Cush. 69; Parsons' Mercantile Law, 225; Weed v. Saratoga R.R. Co., 19 Wend. 534.)
The case last cited is the only one in the supreme court that can be said to hold the carrier liable for money contained in the trunk of a passenger. In Orange Co. Bank v. Brown, 9 Wend. 85, it was said by Justice NELSON that money is not a part of a passenger's baggage, beyond such sum as is reasonably necessary for his expenses. Even this doctrine was repudiated by BRONSON, J., in Hawkins v. Hoffman, 6 Hill, 586.
The common pleas of New York, in Duffy v. Thompson andGrant v. Newton, cited supra, has held, in conformity with the dicta in the 9 Wend. 85 and the 19 Wend. 534, that money for necessary expenses may be recovered for as part of a passenger's baggage.
In Massachusetts, Ohio, Pennsylvania, Illinois and several other states, the liability of the carrier is well settled, and has been for several years.
The question is distinctly presented by this appeal, and if it has not yet been decided in this state, it is our duty now to finally dispose of it.
Baggage is defined by Webster to mean "the clothing andother conveniences which a traveler carries with him on a journey." It is, of course, impossible to enumerate the *Page 618 articles that constitute what is called, in the definition, clothing; and it is still more difficult to specify what shall pass under the name of "other conveniences." The poor man and the rich carry baggage, and each pay the same fare to the carrier; but the baggage of the two men differ materially in the number and quality as well as in value. While the risk incurred by the company for the loss of the baggage of the one may be $100, in the other it may be five times that sum. To attempt to limit the amount of baggage for which a company shall be liable would be productive of great annoyance to the largest class of persons who travel in our stages, and on our steamboats and railway cars. The sum must necessarily be a mean between two extremes in value; and while it may be, and doubtless would be, more than sufficient to cover the baggage of one class of passengers, it would fall much below the value of that of another class. If those whose comfort requires the conveyance of a large amount of baggage cannot have it transported without the annoyance of reporting its value and paying to each carrier an additional sum for the excess over the amount to which a passenger is limited, other and competing modes of carriage would be created, and in the end the carrier would suffer more than he would gain by the attempt to lessen his risk by annoying or taxing the traveler.
Carriers and courts have, as I think, wisely left this question an open one; and the result is, I apprehend, less loss to the carrier than he would incur by limiting his liability and annoyance to the passenger.
The value of the baggage which a carrier obligates himself to carry being unlimited, the only other limitations are whether it is necessary for the passenger on the journey, in the course of which the carrier is employed.
This necessity depends on the pecuniary circumstances and the tastes and habits of the passenger, and it varies with the state of society in which he lives. What is necessary to a man of wealth and of refined tastes and habits, *Page 619 may be wholly useless to a person of different tastes and habits; or, if he has the taste, they may be beyond his means. Necessity, then, as applied to this subject, is a relative term, and must determine in view of all the facts and circumstances of the case.
Again: the baggage must be such as is necessary for the particular journey that the passenger is, at the time of the employment of the carrier, actually making. It would be a most unreasonable extension of the rule to hold that a person going to a distant country to reside may fill his trunk with sufficient clothing to last him a couple of years, and hold the railroad or steamboat company liable for the value, as baggage for the journey. It would be equally severe to limit the quantity of clothing a young lady going to a watering place may carry as baggage, to that necessary to enable her to wear to and at her place of destination. She requires, according to her views of necessity and in conformity with the habits and tastes of the society in which she moves, as much as would be required by another and less fashionable person for use for a year.
The question is, in each case, for a jury, under proper instructions from the court.
That which will constitute baggage is, as already suggested, impossible to enumerate. The articles which will pass under the denomination of "other conveniences" are as various as the tastes, occupations and habits of travelers. The sportsman who sets out on an excursion for amusement in his department of pleasure needs, in addition to his clothing, his gun and fishing apparatus; the musician his favorite instrument; the man of letters his books; the mechanic his tools. In all these cases, and in a vast number of others unnecessary to enumerate, the articles carried are necessary in one sense to the use of the passenger. He cannot attain the object he is in pursuit of without them, and the object of his journey would be lost unless he was permitted to carry them with him. Yet, under pretense of carrying these articles, it by no means follows that the carrier *Page 620 is bound to carry a box of guns, a pianoforte, or organ, a library, or the tools and machinery of a machine shop. I believe there is no difference of opinion in regard to the liability of a carrier for the loss of such articles as are above enumerated, forming part of the baggage of a passenger.
A watch and such articles of jewelry as are commonly worn upon the person, are not as essential to the passenger as clothing or the articles above mentioned. But they are things usually carried on the person, and to some extent as necessary as the other. A watch is indispensable to a traveler. Why may they not be carried in a trunk with the rest of the passenger's baggage? I think experience has shown that such property is safer in a trunk than on the person while traveling. To hold that they may not be carried in a trunk, without notice to the carrier and paying extra compensation therefor, is to subject the passenger to unnecessary annoyance and to add but very little, practically, to the burthen of the carrier.
These considerations apply, in all their force, to money carried in a trunk or other package as a part of the traveler's baggage. It must be carried in some way — it is indispensible. Why may it not be carried in a trunk? Limited as it must be in amount to a sum sufficient to defray the expenses of the journey, why is it any less a part of the baggage than jewelry? If the one may be carried in a trunk at the risk of the carrier because it is safer when so carried, or because it may be considered as in some degree necessary, why may not the other? It is vastly more necessary, and its safety much more important.
To compel a traveler to carry his money on his person, (and he will be compelled to do so if the carrier is not liable for it as part of his baggage,) is to increase the danger he incurs of violence to his person, and to convert our public conveyances into convenient places for the pickpocket and the robber to carry on their callings.
If money may be carried as part of the baggage of a passenger, the next question is, how much may be so carried? *Page 621
The cases in which it has been held that money may be thus carried all concur in limiting the amount to such sum as is reasonably necessary to defray the expenses of the journey. (Parsons' Merc. Law, 225; Angell on Carriers, § 115; Weed v.Saratoga Railroad Company, 19 Wend. 534; Orange County Bank v. Brown, 9 Wend. 85; Judson v. Fall River Railroad Co., 5 Cush. 69.)
The amount of money which may be thus carried will depend on the length of the journey, and, to some extent, on the wealth of the traveler. It is quite obvious that a man going from New York to China would require more money than if he were going to England only, and that a much larger sum would be required to defray the expenses of a millionaire than a poor Irish or German emigrant. In regard to amount, the jury must be guided by considerations similar to those which would govern them in determining what would be necessary clothing in a given case.
In the case before us. Strachwitz testifies that he intended when he left Germany to go to California, and procured the $800 in gold to defray his expenses. Of this sum he paid but $36 for his passage from Hamburgh to New York. He purchased a ticket for the steerage, with the lowest and poorest of his fellow passengers. At the same time he represents himself as of noble birth — an officer in the Prussian service, fleeing from his country because he had fought a duel with his superior officer — and without knowing whether his antagonist was living or dead, nor does it seem that he has even yet learned his fate. This story cast suspicion over his whole evidence, but it was for the referee alone to say how far such a strange tale should bear on his evidence. He has credited him. He therefore finds that the money was obtained in order to defray his expenses to California, and I am not able to say that the amount was unreasonable.
I will now proceed very briefly to consider the objections that have been urged against holding that a carrier is liable *Page 622 for money carried in a passenger's trunk for the sole purpose of defraying his expenses. It is asserted
1. That the carrier receiving pay for the carriage of the passenger only, does not receive compensation in proportion to the risk he runs, and of the extent of which he has neither knowledge nor means of knowledge. If he is liable that liability may be to the extent of thousands of dollars, while the compensation actually received may be but a few cents.
I admit the hardship of the rule, where a loss for a large amount is incurred. But, while the hardship should be fully appreciated, it cannot control the question of liability. When an express company receives a box of jewelry or of specie, to be carried a few miles, the risk is enormous, but it does not influence very much the price charged. Yet the carrier is an insurer, liable for losses occasioned otherwise than by the act of God or the public enemy. The carrier establishes his charge for the transportation of passengers and freight with knowledge of the general principles of law which regulate the business in which he is engaged; and, although he cannot know the full extent to which these principles may be carried, he must, nevertheless, take upon himself the risk. He has a further protection, and that is, in certain cases, to limit his liability for property carried, unless the value is disclosed to him and an increased price paid, if demanded, on its carriage. If he will not thus protect himself when he may, I can perceive no reason why courts should limit or change a wholesome and necessary rule of law in order to protect him.
When he contracts to carry a passenger, he knows that, by virtue of that contract, he is bound to carry his baggage without additional compensation therefor, and that he is liable for its value if lost. If he will not require the passenger to disclose its value, he should not complain if the risk assumed is greater than the fare paid compensates. There is in law a sufficient consideration for the agreement to carry, and that is all that is required by the law. *Page 623
2. It is further objected that money is no part of the baggage that a traveler usually has with him, and it ought not to be so considered. This is begging the question. In practice money is carried by travelers in trunks, and the reason why the carrier should be held liable for it, as part of the baggage, I have already given.
3. It is said to be unjust to a carrier, who carries a passenger a few miles only, to subject him to liability for money deposited in his trunk to defray the expenses of a protracted and expensive journey, while his compensation for his carriage is a mere trifle.
The injustice is not chargeable to the law, but to himself. If he contracts to carry the passenger and his baggage without inquiring as to its value, and thereby inform himself whether an additional compensation should be demanded, he should be held to the strict and literal performance of his contract as made.
4. It is said that the courts of this state have never held and should not now hold a carrier liable for money as part of a traveler's baggage, whatever may be the rule in other states.
I cannot assent to this proposition. The very fact that such is the law in our sister states, is a very strong reason for its adoption in this state, if it is not already a part of our law. It would be unreasonable that carriers in other states should be liable for money as part of the baggage of a citizen of this state and we refuse the citizens of such states the same protection in this. It is one of those regulations of trade and business that the public good demands should be uniform; and it would be ungracious and unneighborly to refuse to conform to the rule because our courts have not heretofore adopted it.
I do not find that any specific objections were taken before the referee to the allowance of the value of any item of clothing or other article in the trunk, except the money. In the absence of any such exception, we are not called to *Page 624 say whether the allowance of the referee was or was not erroneous.
With the questions of fact we have nothing to do. While the rule entered by the general term declares the reversal to be for errors of fact and law, I conclude the errors of fact alluded to relates to the $800. The opinions of the learned judges suggest no other. And thus construing the rule, I think the finding was not exclusively of fact but one of fact and law, which the general term erred in reversing. If it could be held that the judgment was reversed upon the facts, there is undoubtedly sufficient evidence to justify the reversal. But as I do not think that such was the intention of the court below, I am of opinion the judgment should be reversed and a new trial ordered; costs to abide event.
All the judges being for reversal, except HOGEBOOM, J., who did not vote, and DAVIES, J., who did not dissent, judgment reversed. *Page 625