Opinion
April 15, 1952.
Appeal from the Circuit Court, Orange County, Frank A. Smith, J.
Sam E. Murrell and Sam E. Murrell, Jr., Orlando, for appellant.
LeRoy B. Giles, Edward K. Goethe and David W. Hedrick, all of Orlando, for appellee.
Appellant brought a common law action against the Atlantic Coast Line Railroad Company, a corporation, appellee herein, in which she sought damages for the loss of her baggage while she was en route from Orlando, Florida, to New York City upon a train owned and operated by the appellee.
Appellant's ultimate destination was Springfield, Mass., but she was riding as a paid passenger on the appellee's train known as the "Champion" only as far as New York City. When appellant arrived at the station in Orlando to board the train she talked with a person whom she designated as "the agent". She advised him that on the next day after her arrival in New York City she was going on to Springfield, Mass. Appellant testified that she had taken trips before and that when she checked her baggage it would be delayed a day or so. She did not want such experience on this trip. Appellant further testified that after she had advised the agent that she was going on to Springfield, Mass., the day after arriving in New York City, the agent said, and we quote from appellant's testimony: "`Well, in that case,' he says, `I would have the porter', he says `have the porter put your baggage on the car.'"
Appellant also testified that after this conversation and when the train came in she showed the porter her ticket which disclosed her destination as New York City and he said "I will take care of your baggage, Ma'm, * * *." Appellant concluded her testimony concerning this phase of the case by stating "So the porter put my baggage on the car so it would be with me." (Italics supplied).
There were three pieces of baggage carried by appellant on this trip. The porter placed two of the bags in the baggage rack in the front end of the car and, at the direction of appellant, he carried the smallest bag back to appellant's seat. The baggage rack or compartment is not enclosed by a door or curtain. The train upon which appellant was traveling left Orlando in the middle or late afternoon. The next morning, after having breakfast in the dining car with a lady friend who boarded the train in Jacksonville, appellant decided to get something out of one of her pieces of luggage which had been placed in the open baggage rack. She called the porter and together they went to secure one of her bags in order that she might open it and take the desired article therefrom. Upon arriving at the baggage compartment it was discovered that both of appellant's bags which had been placed therein were missing. During the night there was a change of porters, which it appears is routine in order that each porter might have a few hours sleep. The porter who had substituted for several hours during the night was called. He remembered that three women and a child had gotten off the train in Rocky Mount, N.C. Appellant described her baggage to the porter who was on duty at the time the train stopped at Rocky Mount and he recalled that the three women had pointed out to him luggage which was represented as their own and which resembled the bags described by appellant. The porter took such luggage from the baggage rack and placed it on the station platform. Although the Railroad Company attempted to locate the two pieces of luggage, they were never found and, consequently, not returned to appellant.
We have taken the facts which we have stated herein from the testimony of the appellant because the learned Circuit Judge granted a motion for a directed verdict at the conclusion of defendant's (appellee here) case. He directed a verdict in favor of appellee upon the ground that there was no liability shown upon the part of the Railroad Company even assuming, as he should have done, that all the facts testified to by the appellant were true. In testing the correctness of his ruling we too must, and do, assume as true the facts delineated by the appellant in her testimony.
It is almost universally held that a carrier upon assuming the complete and exclusive possession, care, custody and control of baggage, is liable as a common carrier in respect of such baggage and is regarded as a practical insurer thereof. Burnett v. Riter, Tex.Civ.App., 276 S.W. 347; Jensen v. Interstate Transit Lines, 221 Iowa 513, 518, 266 N.W. 9; 13 C.J.S., Carriers, § 869, p. 1692 and cases therein cited. On the other hand, unless the carrier has exclusive possession, care, custody and control of such baggage it is liable only for negligence in failing to exercise reasonable care to protect the baggage from loss or injury. Sperry v. Consolidated R. Co., 79 Conn. 565, 65 A. 962, 10 L.R.A., N.S., 907, 118 Am.St.Rep. 169, 9 Ann.Cas. 199; Burnett v. Riter, supra. See also 13 C.J.S., Carriers, § 869, p. 1692 and cases therein cited, and 10 C.J. 1202 and cases therein cited.
We will first direct our attention to the determination of the question whether under the facts of this case it could be said that appellant gave complete and exclusive possession, care, custody and control of her two bags to the carrier. The appellant, although she testified that "the agent" advised her, or, as she apparently on second thought attempted to make it appear he directed her, to take her bags on the car in which she was riding, she could have checked her baggage and failed to do so. She saw the porter place the bags in the open baggage shelf in the front of the chair car in which she had a reserved seat. Under such circumstances, we are constrained to hold that the carrier was not given the complete and exclusive possession, care, custody and control of the baggage. It is clear that appellant retained at least partial possession and control of her baggage and intended to do so, as is indicated by her own testimony and the fact that she desired and endeavored to get into one of her bags for the purpose of extracting something therefrom. Indeed had she not elected to take the luggage into the car as she stated "so it would be with me" and had checked her bags, thus giving unto the Railroad Company exclusive possession, custody and control thereof, the unfortunate incident could hardly have taken place and, in any event, an action against appellee probably would have been well founded, had there been a loss. Consequently, we cannot hold the carrier responsible for the loss of the luggage unless the evidence can be said to establish the fact that the carrier was negligent in failing to use reasonable care to protect it from loss or injury. Sperry v. Consolidated Ry. Co., supra; Burnett v. Riter, supra; 13 C.J.S., Carriers, § 869, p. 1692; 10 C.J. 1202 and cases therein cited.
This conclusion leads us to an examination of the evidence in order to determine whether it shows negligence on the part of the carrier or its servants by a failure to exercise reasonable care. For the sake of emphasis we repeat that the baggage shelf or compartment was not closed or its contents hidden from view even by a curtain. Appellant saw her baggage placed in the baggage rack. A consideration of appellant's testimony discloses that the Railroad Company used the same precaution against loss of luggage in this case which all such carriers under similar circumstances customarily adopt. It had a porter on duty at all times. It is axiomatic that the porter could not stand constant guard over the appellant's bags and attend to his other duties. Appellant must be presumed to have been conscious of this postulate. The only possible lack of diligence attributable to appellee's servant was his failure to challenge the honesty of the three women who detrained at Rocky Mount. We cannot be persuaded to the view that ordinary and reasonable care required the appellee to make certain that no passenger took from the car baggage belonging to another. In this connection we approve the following quotation from the case of Springer v. Pullman Co., 234 Pa. 172, 83 A. 98, 101;
"To so hold would be to impose on the company the duty of seeing that no passenger left the car with any baggage except his own, which again would be virtually making the carrier an insurer, besides subjecting the passengers to a scrutiny and surveillance which the ordinary traveler would have a right to resent. We cannot think that the ordinary care exacted of the carrier requires any such officious interference as this."
Counsel for appellant insists that a directed verdict should not have been granted because the question of whether the Railroad Company or its servants was guilty of negligence was a matter which should properly have been submitted to the jury under appropriate charges upon the law. Counsel is particularly insistent that even if the facts in this case should be deemed insufficient to justify a holding that the appellant should be held liable as a practical insurer the question whether appellee was guilty of negligence in failing to exercise reasonable care in respect to such baggage was certainly a question for the jury.
The facts of this case as we have stated them, have been taken, as we have previously observed, from appellant's testimony. We find nothing therein which shows or tends to disclose that the care taken of the suit-cases by the servant of the Railroad Company was not such as is customarily taken of every passenger's luggage which is handled under similar circumstances. Taking the appellant's evidence in the light most favorable to her, it is not sufficient to show negligence on the part of the appellee company or its servants. It might be said that the proof of the loss of the baggage created an inference of negligence. However, appellant's own testimony destroyed such an inference because she made it appear just what took place, that is to say, what care was taken, and her testimony does not show that such care was not reasonable and ordinary care. Consequently, it was not error for the Circuit Judge to direct a verdict in favor of the Railroad Company since there was no need to determine conflicts in the evidence in order to decide as a matter of law that the appellee was not guilty of negligence.
Affirmed.
SEBRING, C.J., and TERRELL and THOMAS, JJ., concur.