On Petition for Rehearing.
Gavin, C. J.By printing its brief upon petition for rehearing, and thus making available a copy to each member of the court, the appellant’s counsel has placed before "us in convenient form the propositions upon which he bases his request for a rehearing. Our high appreciation of the ability and fairness of the counsel has led us to give it a special consideration, but we are the more fully satisfied that the cause was fairly and correctly decided below, and that the views expressed in the original opinion are well founded.
Appellant now makes objection to the second paragraph of complaint. In the original brief its counsel stated: “The second paragraph of complaint is substantially like the first, except that there is no allegation that the trunk and its contents were lost and stolen.
‘ c The second paragraph of the complaint, I think, is insufficient to withstand the demurrer.” It is now too late for appellant to present objections to the sufficiency of this pleading.
"We have reread the original brief with care, and have searched in vain for a single statement in the argument as to the sufficiency of the first paragraph of complaint that it was bad because the demand was not made within a reasonable time after the arrival of the trunk at Indianapolis. On the contrary, the position taken is that the carrier’s contract was performed by delivery to *522the Union Railway Company at its station at Indianapolis, and that the carrier’s liability having been affirmatively shown to be determined, there was no breach averred of the non-performance of its warehouseman’s duty. We quote further from counsel’s brief to show that any misconception of his position was not that of the court:
“ That is, while the property was in transit it was an insurer, but when the transit ended by the arrival of the property at Indianapolis, and it was delivered into the possession of the Union Railway Company, the strict liability of an insurer ceased and the liability of a warehouseman supervened.
“The allegations of the complaint in this case show conclusively that the Pennsylvania Company’s strict responsibility as a carrier ceased upon the arrival of the trunk in question at Indianapolis.
‘‘Clearly the relation of the Pennsylvania Company to the property in question after it had delivered it to the Union Company was the relation of a warehouseman.”-'
The objection made was held to be not well taken, because the mere arrival of the goods at the station and their delivery to appellant’s receiving agent did not terminate the carrier’s liability.
By giving to the evidence the interpretation most favorable to the appellant, it only shows that the trunk in question was received by the Union Railway Company. There is absolutely nothing to indicate how long it remained in its hands, or that it was ever ready for delivery to the appellees. For that reason the time of appellees’ making the demand was not a controlling factor. If it appeared that the trunk was lost or stolen after the appellant or its agent was ready to deliver it to appellees, then the determination of the reasonable*523ness* of the time within which the demand was made might.become important.
Under established rules of law, it is at least doubtful whether the jury might not have found that the trunk never was really delivered to the Union Railway Company. The only evidence that it was delivered is the statement of the employes made to appellees that the books showed that the trunk had come into Indianapolis. It was clearly proved, however, that on demand made, first twenty-four' hours and again two or three days afterwards, the trunk was nbt forthcoming, nor could appellee find it in the baggage room. At that time the Union Railway Company’s agent said’ may be it had gone down to Lawrenceburg. Upon the trial there was no effort upon the part of appellant or the Union Railway Company to account for the trunk. They offered-not a word of evidence upon the subject. There was nothing to show that it had been stolen, or destroyed, or lost, save what we have given. Evidently there had been a mistake somewhere, unless appellant or its agent was willfully retaining the trunk.
The jury was by no means bound to believe that the books were correct. If all things had been properly done, the trunk should have been on hand for delivery when asked for, but it was not, and appellant did not endeavor to throw any light upon the cause of its absence. The jury had a right to infer from this fact that the trunk had not really been received at the station, in the absence of any showing by the defendants as to its ever having gone out, and in the absence of the books or the testimony of any of the employes who should, have handled the trunk. Closely analogous to the case in hand are the cases declaring that where the railroad company fails or refuses to explain and account for its failure to deliver property received and carried *524by it, the court or jury may properly infer negligence upon its part. Louisville, etc., R. W. Co. v. Nicholai, 4 Ind. App. 119; or that by failure to deliver on proper demand, a prima facie case is made out against the company. Camden, etc., R. R. Co. v. Baldauf, 16 Pa. St. 67; Fairfax v. New York Central, etc., R. R. Co., 67 N. Y. 11; same case, 73 N. Y. 167; Matteson v. New York, etc., R. R. Co., 76 N. Y. 381; Stewart v. Stone, 127 N. Y. 500 (14 L. R. A. 215); Terre Haute, etc., R. W. Co. v. Sherwood, 132 Ind. 129 (17 L. R. A. 339); Cleveland, etc., R. W. Co. v. Tyler, 9 Ind. App. 689.
Filed March 6, 1896.It is probably true, as indicated by some of these cases, that where negligence is the issue, proof of loss of the goods by fire, theft, etc., will be sufficient to overthrow the prima facie case, and require from the plaintiff actual proof of negligence.
Petition overruled.