The plaintiff purchased a ticket for an interstate journey upon the railroad of defendant. For transportation to his destination he delivered to the defendant a trunk to be checked as baggage. The baggagemaster asked him what the trunk contained; he replied "linens and laces." Asked what he did with the merchandise, he answered that he "was selling it on the road." He placed a valuation of $2,500 upon the merchandise and paid a charge of $2.40 for the excess value. The agent accepted the trunk as baggage and delivered a check therefor to the plaintiff. On arrival at destination the plaintiff presented the check to obtain the trunk. The trunk could not be found; it had been lost or stolen. This action was brought to recover the sum of $2,500, the valuation figure which had been placed upon the trunk.
The Interstate Commerce Act, section 6, paragraph 7, provides that no carrier shall engage in the transportation *Page 362 of persons or property "unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published;" that no carrier shall "extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs."
The defendant, in accordance with the act, filed its tariff schedules with the Interstate Commerce Commission and duly published the same. These schedules or rules make provision governing the transportation of passengers' baggage. Rule 1 provides that baggage checks will be issued for authorized articles only when the owner is a passenger over the same line to the same destination as that of the baggage or beyond. Rule 4 defines baggage to be either "personal" or "sample." Personal baggage consists of articles in actual use and necessary for the wear, comfort and convenience of the passenger for the purposes of his journey. "Sample baggage consists of baggage for the commercial as distinguished from the personal use of the passenger and is restricted to catalogues, models, and samples of goods, wares or merchandise, in trunks or other suitable containers, tendered by the passenger for checking as baggage to be transported on a passenger train or boat, for use by him in making sales or other disposition of the goods, wares or merchandise represented thereby."
Concededly, the linens and laces, contained in the plaintiff's trunk, were not personal baggage. While the point is not conceded, it seems equally clear that they were not "sample baggage." The plaintiff informed the baggagemaster, as to the merchandise contained in the trunk, that he was "selling it on the road." Upon the trial, he was asked what he purposed to do with the merchandise, and he replied "to sell it on the road." The burden was clearly upon the plaintiff, who sought recovery for the breach of a contract to carry baggage, to prove that he had delivered baggage for carriage to the *Page 363 defendant. This he did not do. If baggage at all, it must have been "sample" baggage. It was not such baggage, since no proof was given that the merchandise delivered by the plaintiff was designed "for use by him in making sales or other disposition of the goods, wares or merchandise represented thereby." The things which the trunk contained were not representative of other merchandise to be sold; they were themselves the merchandise to be sold.
The plaintiff contends that the provisions of section 6, paragraph 7, of the Interstate Commerce Act apply to freight but not to passenger's baggage. It has been held otherwise. (Boston Maine R.R. Co. v. Hooker, 233 U.S. 97.) In that case a passenger sought to recover the full value of checked baggage which had been lost in transit. The tariff schedules limited the carrier's liability for lost baggage to $100, unless a greater value had been declared. The passenger had not declared an excess value. It was held that a recovery of more than the sum of $100 might not be had, since the carrier was forbidden by paragraph 7 of section 6 of the act from extending to any shipper or other person any facility or privilege not specified in the filed tariffs. To the same effect is Galveston, H. S.A.R.R. Co. v.Woodbury (254 U.S. 357).
The plaintiff contends that he may recover upon a special agreement made between himself and the baggagemaster, representing the defendant, that for the extra charge of $2.40 the defendant would carry the merchandise as sample baggage. The baggagemaster was powerless to make the special agreement. (Chicago Alton R.R. Co. v. Kirby, 225 U.S. 155.) There, the owner of high grade horses in Springfield, Ill., desired to rush them to New York city, that they might be offered for sale at an impending sale at Madison Square Garden. The agent agreed that, if the plaintiff would load them on a car of the defendant before a specified hour, the car would be hauled to Joliet, Ill., in time to be connected up with the *Page 364 fast freight train for New York, known as the "Horse Special." The plaintiff loaded as required. The defendant failed to deliver the car at Joliet in time to join the "Horse Special." As a result, the plaintiff was unable to exhibit his horses for sale at the New York auction. It was held that the agent was without power to make the special contract for speedy delivery, since the filed tariffs extended no such privilege to shippers generally. Therefore, a recovery was denied. The same holding was made inAtchison, T. S.F. Ry. Co. v. Robinson (233 U.S. 173).
The plaintiff contends that the defendant, if not liable on a contract to carry, was liable as a bailee for its negligence in not caring for the trunk. The difficulty is that the baggagemaster was not authorized to receive the trunk for any purpose, and, therefore, the defendant entered into no contract of bailment. (First Nat. Bank v. Ocean Nat. Bank, 60 N.Y. 278,287.) In the case cited the cashier of the defendant, without authority, accepted bonds belonging to the plaintiff for safekeeping. No charge for the service was to be made. The bonds were lost when the defendant's safe was burglarized. It was held that there could be no recovery by the plaintiff. The court said: "The duties and obligations of a bailee cannot be thrust upon one against his consent, but must be voluntarily assumed by the party himself, or some authorized agent, as in every obligation founded upon contract express or implied." Again it said: "If there was no bailment to the corporation it neglected no duty, and was guilty of no negligence. The whole duty of a bailee rests upon contract, and if there was no contract there was no duty." InAmerican Railway Express Co. v. Levee (263 U.S. 19) it was said by HOLMES, J., concerning an effort of a shipper, who lost goods in transit, to avoid a limitation of liability provided for in the carrier's receipt, by suing in tort rather than in contract: "The effect of the stipulation could not have been escaped by *Page 365 suing in trover and laying the failure to deliver as a conversion if that had been done." So here, at least in the absence of proof of gross or active negligence, a recovery in tort is unavailable, in lieu of a recovery upon a contract of carriage or bailment, when the latter, due to lack of power in the agent, would necessarily fail.
Rule 19 of the defendant's tariffs reads: "When passengers fail to disclose nature of articles offered for checking and it develops en route or at destination that the transportation of such articles as baggage is not authorized herein, collection will be based on double the excess baggage rate for gross weight, minimum charge sixty (60) cents." The rule does not apply, for this is not a case where a passenger has failed "to disclose nature of articles offered for checking." The plaintiff fully disclosed the nature of the merchandise offered.
The case of New York Central R.R. Co. v. Goldberg (250 U.S. 85) does not help the plaintiff. There, furs were innocently shipped by the owner as dry goods, taking the freight rate for the latter, which was one-half the rate for the former. The furs were stolen in transit, and a recovery was allowed. The bill of lading provided: "If upon inspection it is ascertained that the articles shipped are not those described in this bill of lading, the freight charges must be paid upon the articles actually shipped." The court held that this provision was exclusive in its imposition of a penalty upon the shipper, and that by implication therefrom the contract of carriage in the particular instance received sanction.
The case of Humphreys v. Perry (148 U.S. 627) seems conclusive upon this issue. There a passenger checked as baggage a trunk containing a stock of valuable jewelry designed to be sold. The train was wrecked and the jewelry lost or stolen. It was held, on common-law principles, that jewelry designed for sale did not constitute baggage, and there could be no recovery upon the contract to carry it as such. Here, we have a statute *Page 366 which forbade the carrier to "extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs." The tariffs made no provision for the carriage of merchandise to be sold as passenger's baggage. The promise impliedly made by an unauthorized agent, so to carry the merchandise of the plaintiff, was forbidden by the statute to be made. There can be no recovery upon the void promise.
The judgment should be reversed and the complaint dismissed.
POUND, CRANE and LEHMAN, JJ., concur with CARDOZO, Ch. J.; KELLOGG, J., dissents in opinion in which O'BRIEN and HUBBS, JJ., concur.
Judgment affirmed.