March 22, 1905. The opinion of the Court was delivered by *Page 222 The allegations of the complaint material to the questions presented by the exception are as follows: "That on the third day of September, A.D. 1903, the plaintiff delivered to the defendant, through its proper and lawful agents, in the town of Walhalla, State of South Carolina, one trunk in good shipping order, to be transported for valuable consideration, then and there paid, either over its own or over connecting railway lines, from the town of Walhalla to the city of Charleston, State aforesaid. That the defendant accepted the same to be so transported, and as a receipt therefor gave to the plaintiff a check of the said railway company designated by the number 6555. That the defendant, not regarding its duty, did not use proper care therein, but by the wilful misconduct and gross negligence of it and its servants, said trunk with its contents has been wholly lost."
The answer denies these allegations, and sets up as a defense, "that the plaintiff never became a passenger upon defendant's line, the relation of passenger and carrier never existed and the obligation of a carrier was not assumed by the defendant."
The jury rendered a verdict in favor of the plaintiff for $1,276.60. The defendant appealed upon exceptions which will be set out in the report of the case.
The uncontroverted facts are, that on the third of September, 1903, the plaintiff and her husband, Jno. B. Adger, came by private conveyance from the highlands of North Carolina to Walhalla, S.C. for the purpose of returning on the railroad trains to Charleston, S.C. When they arrived at the depot in Walhalla, they found the three trunks on the platform at the station. They requested the defendant's agent to sell them tickets to Charleston and check their baggage to that place, stating that they wanted to go by way of Spartanburg, so as to be able to take a sleeper to Charleston, and also stating to him that in order to take that route, it would be necessary for them to go by private conveyance *Page 223 to Seneca, as they wanted to leave their horse and buggy with a friend. The agent told them that he could not sell them tickets to Charleston, but could sell them tickets to Spartanburg, and would check their baggage through to Charleston. The baggage was put on the train and was seen at Seneca and other points on defendant's road, but one of the trunks failed to reach its destination. They purchased the tickets to Spartanburg with the bona fide intention of getting aboard the train as passengers from Seneca to Spartanburg and for the purpose of enabling them to have their baggage checked to Charleston. It was their desire and intention that they and their baggage would arrive in Charleston at the same time.
In the early history of railroads, it was held that, as a carrier was only liable for the negligence causing injury to a passenger, it was only liable to that extent for loss of his baggage. The Courts have repudiated this doctrine, and a railroad is now held to the strict liability of a carrier of goods. In the early development of railroads, it was likewise regarded as necessary for the passenger to accompany his baggage for the purpose of identifying it and receiving it when it reached its destination. This is still necessary in England and other countries, where the system of checking does not prevail. But now, carriers in this country frequently refuse to take baggage on trains which carry passengers, and give notice of this fact in their time tables. The carrier has absolute control over the baggage after checking it, until it reaches its destination, and may select the particular train upon which it is to be carried. The fact that a person purchasing a ticket does not ride on the train does not in itself place the carrier at any disadvantage. The only reasons now existing, why a person purchasing a ticket without the intention of taking passage should not be regarded as a passenger, are that this relation imposes a liability upon the carrier that would not otherwise exist; and, furthermore, the conduct of the carrier's business might *Page 224 possibly be interfered with, as baggage must necessarily be transported more rapidly than freight.
When a person purchases a ticket there is an implied agreement that he intends to become an actual and not a constructive passenger, and he has no right to change the contract without the assent of the carrier. Good faith is involved in the purchase of the ticket. When, however, it would be inequitable for the carrier to insist upon this implied agreement, it is estopped.
After these general remarks, we proceed to construe the contract in this case and to determine the relation thereby created between the plaintiff and the defendant. When the trunks were tendered for transportation, the law imposed upon the defendant as a common carrier the duty of carrying them, either as baggage or as freight, upon satisfactory arrangements being made as to compensation. Mathis v.Ry., 65 S.C. 271, 43 S.E. 684.
Instead of insisting upon the right to carry the trunks as freight, the defendant recognized and assented to the right of the plaintiff to have them checked as baggage, and thereby elected to assume the liability incident to the transportation of baggage. Was there any consideration for the checks? There are no facts from which it can reasonably be inferred that either the plaintiff or the defendant contemplated the carriage of the trunks by the defendant as a gratuitous bailee; on the contrary, the only reasonable inference is they intended that the price for the ticket should include the consideration for the checks. If the defendant intended to assume the relation of gratuitous bailee, it was its duty to give notice of this fact, when it knew the plaintiff relied upon the price of the tickets as the consideration for the checks.
The principle is well settled that the price of a ticket includes compensation for the carriage of such baggage as may be necessary for the personal convenience of the passenger. The plaintiff by the acquiescence of the defendant *Page 225 was to all intents and purposes a passenger, in so far as baggage was concerned. In the case of Marshall v. R. Co., 55 L.R.A. (Mich.), 650, the Court held that one, who purchases a railroad ticket for the sole purpose of checking his baggage upon it, with the intention of going to his destination in his private conveyance, can hold the carrier liable only as a gratuitous bailee of the baggage, and cannot recover in case it is stolen from the baggage room, unless the carrier is guilty of gross negligence. There is an exhaustive and vigorous assault upon the doctrine of that case in a note to it, in 55 L.R.A., 650. The facts of this case are, however, quite different. There was good faith on the part of the plaintiff and all the facts were made known to the agent. Furthermore, the ticket was not bought solely for the purpose of checking the baggage, as the plaintiff intended to get on board the train at Seneca and ride to Spartanburg enroute to Charleston.
This disposes of all the exceptions except the second and seventh.
It is only necessary to refer to section 3, art. IX., of the Constitution, and to the admission in the answer that the defendant is a common carrier, to show that the second exception cannot be sustained.
The charge mentioned in the seventh exception was favorable to the defendant. It, therefore, has no ground of complaint.
It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.