I find myself compelled to concur with Judge GRAY in an affirmance of the order appealed from but on grounds other than those stated by him.
I agree with him that actually the contract between the parties was a written one contained in the receipt or certificate issued by defendant to plaintiff and the prospectus or programme therein referred to as part thereof. Nevertheless, the court without any objection on the part of defendant's counsel allowed the jury, if it so desired, to find that the contract was an oral one made by the conversation between plaintiff and defendant's agent in New York before the written one was executed, and, therefore, plaintiff would be entitled, if she could, to sustain her recovery under either alleged contract. The so-called oral one did not materially differ from the written one in respect to the question here under discussion. Plaintiff testifies that "He (defendant's agent) told me every detail, baggage, carriages, hotel rates, fees, everything pertaining to the tour from New York back to New York would be attended to. I had nothing whatever to do with the details."
On the theory that it might find an oral contract, the jury were instructed that "then it was the duty of the defendant to substantially perform his contract, including the provision to look after and take care of the transportation of plaintiff's baggage, and it would be for the jury to say whether a substantial compliance with defendant's contract in that regard required the presence on the steamer Romanic of a representative of the defendant to look after and take charge of the plaintiff's baggage on the trip from New York to Naples, and whether the defendant did substantially comply with his contract in providing that the baggage should be handled *Page 38 and looked after by the representatives of the steamship company, without any accompanying conductor between New York and Naples." I think the defendant's counsel intended to take exception to this portion of the charge, but through carelessness either in taking the exception or the printing of the record his exception, which is applicable only to this portion of the charge, is stated to be taken to the charge in connection with the written contract, where no such instructions as to the obligations of the defendant had thus far been given. However, in response to this exception, the court did then charge: "I leave to the jury the question of whether a substantial compliance with that contract required the services of a representative of the defendant upon the steamer. I grant you an exception to that." Therefore, when this was all over, there was an exception which was understood to refer to what had already been said with reference to the obligations of the defendant under the alleged oral contract or there were some new instructions subject to exception which referred to the written contract.
The defendant did not assume any such obligations as were defined by the court under either contract. Of course it could not have been the expectation of the parties either under the written contract or under the conversation between plaintiff and defendant's agent in New York that the defendant would send a representative to retain the custody of or maintain personal guard over baggage while it was in the possession of a public carrier under a regular passage ticket which had been issued to and accepted by the owner of the baggage. That would be absurd. What the contract meant, so far as applicable to the facts of this case, was that the defendant would furnish a representative who would discharge those duties and exercise that care concerning the baggage of plaintiff and those like her which an ordinary traveler would exercise concerning his own baggage. This *Page 39 at most required him to see to it that baggage belonging to members of the party was correctly checked or labeled and delivered to the proper carrier and that it was carefully looked after on delivery by the carrier at the end of the route, or, in case of a failure to deliver at the proper time and place, that it was promptly hunted up and delivery secured. Certainly this obligation did not require the defendant to maintain a representative on the steamer for the entire voyage. I do not think that it even required him to furnish a representative on board at Naples to stand by the baggage as it was being transferred from the steamer to the tender for delivery at the pier. It was still in the custody of the carrier and defendant had a right to assume in the first instance that the steamship company would properly discharge its obligations and so deliver the baggage. If this view is correct it was error for the court to charge as it did.
I do think, however, that the defendant by an agent was bound under the circumstances to attend at the pier and look after plaintiff's trunk if it was delivered there, or in case it was not delivered at the proper time with the other baggage to take prompt measures to look it up and see that it came off the steamer before the latter sailed away. And I further believe that certain aspects of the evidence would have justified the jury in finding that the defendant did not properly discharge this duty and in holding him responsible for the loss of plaintiff's trunk. It is not profitable to consider this question at length, for I concede that the court committed error in permitting the defendant to be charged with too great a responsibility in the respects mentioned. If the plaintiff's counsel had seen fit to go back and take a new trial under the decision of the Appellate Division this error might have been eliminated on a new trial, but as the case stands now, it is available to the defendant and must lead us to grant judgment absolute against the plaintiff on the stipulation of her attorney. *Page 40
In accordance with these views I vote for an affirmance of the order of reversal, with costs in all courts.