Plaintiff purchased a ticket during May, 1922, on the Pennsylvania railroad and checked a trunk, the contents of which he valued at $2,500. Because of this “ excess ” value he paid $2.40. The trunk was lost and he sued to recover its value. The court set aside a verdict in his favor on the ground that, since the trunk contained merchandise intended for sale, it was not transportable under the baggage tariff.
*74Admittedly the contents were not personal wearing apparel, but were linens and embroideries intended for sale.
Formerly sample baggage was defined as that “ carried by commercial travelers * * * and not for sale or free distribution.” In Jewelers’ Protective Union v. Pennsylvania R. R. Co. (36 I. C. C. 71, 74) the Interstate Commerce Commission held the words “ not for sale or free distribution ” unreasonable, basing its decision upon the necessity of frequently selling samples. In reply to the railroad’s contention that a change in the definition would open the door to the checking of more baggage on passenger trains than could conveniently be handled, the Commission pointed out that “ Certain limitations attend the checking of sample baggage, which hinder growth of the practice. Among these may be mentioned the expense of transportation and transfer, including the fact that baggage can be checked only as an incident to payment of the passenger’s fare.”
The Commission approved a definition of sample baggage, which has been adopted by the defendant in its tariffs, as “ baggage for the commercial as distinguished from the personal use of the passenger ” and restricted sample baggage to “ samples of goods * * * in trunks * * * tendered by the passenger for checking as baggage to be transported on a passenger train * * * for use by him in making sales or other disposition of the goods * * * represented thereby.” (Rule 4, subd. c.) Under this definition there is no longer a prohibition against the sale of the merchandise provided they are in fact used as samples. The record is silent as to whether the linens and embroideries in the case at bar were to be regarded as representative of other merchandise for which plaintiff would take orders. All we know is that he intended to sell these linens and laces if he could. The railroad failed to negative the possibility that plaintiff also intended to take orders for similar merchandise.
The plaintiff testified, without contradiction, that the baggage master, after inquiry, was informed that the trunk contained linens and laces. Essentially the railroad contracted to carry these goods knowing full well what they were, and it should be compelled to respond to the liabilities of its contract, unless there is some question of public policy involved. Rule 19 of the baggage tariff negatives any rule of public policy. It 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 made based on double the excess baggage rate for gross weight, minimum charge 60 cents.” Rule 19 has a double bearing. First, it indicates that the baggage official of the road had authority *75to make mistakes and to rectify them; and second, it shows clearly that the railroad itself contemplated the possibility of such a mistake being made. There was no variation of a tariff schedule giving favoritism to a shipper, because, as the Interstate Commerce Commission points out, the rate for checking baggage is higher than the freight rate. There is nothing in the facts of this case to show that any public interest would be sacrificed by holding the railroad company to its contract.
The order setting aside the verdict and the judgment thereupon entered should be reversed, with costs, and the verdict reinstated.
Dowling, P. J., Finch and McAvoy, JJ., concur; Martin, J., dissents.