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unfair concealment, it will exempt the carrier from responsibility under the contract, or, more properly speaking, it will make the contract a nullity."

There is a uniform series of cases on this principle, in the Supreme Judicial Court of Massachusetts. In Jordan v. Fall River Railroad, 5 Cush. 69, it was laid down that a common carrier of passengers was not responsible for money included in the baggage of a passenger, beyond the amount which a prudent person would deem proper and necessary for travelling expenses and personal use, or intended for other persons, unless the loss was occasioned by the gross negligence of the carrier or his servants.

In Collins v. Boston & Maine Railroad, 10 Cush. 506, it was held that the term "baggage," for which passenger carriers were responsible, did not include articles of merchandise not intended for personal use; and that a carrier was not liable for the loss of merchandise sent by a passenger train, by a person who expected to go himself in the same train, but did not, the goods having been lost without any gross negligence in the carrier or any conversion by him.

In Stimson v. Connecticut River Railroad, 98 Mass. 83, it was held that a railroad company was not liable to either owner or agent, on its ordinary contract of transportation of a passenger, for losing a valise delivered into its charge as his personal luggage, but which contained only samples of merchandise, and, with its contents, was owned by a trader whose travelling agent the passenger was, to sell such goods by sample, nor in tort for the loss, without proof of gross negligence.

In Alling v. Boston & Albany Railroad, 126 Mass. 121, the above cases in 5 Cush., 10 Cush. and 98 Mass. were cited and applied, and it was held that if a passenger delivered to a railroad company a trunk containing samples of merchandise, belonging to a third person, whose agent he was, to be transported to a place for which the agent had a ticket, the only contract entered into was for the transportation of the personal baggage of the agent, and the company was not liable in contract to the owner of the trunk for its loss, nor in tort, except for

Opinion of the Court.

gross negligence; and that evidence that a large part of the company's business consisted in transporting passengers known as commercial travellers, with trunks like the one lost, containing merchandise, that such trunks were known as sample trunks and were of special construction, and that such travellers purchased tickets for the ordinary passenger trains, and received checks for their trunks, and were transported for the price of the tickets, was immaterial.

In Blumantle v. Fitchburg Railroad, 127 Mass. 322, 326, it was held that evidence that a passenger delivered to the baggage-master of a railroad corporation a package of merchandise and received a check for it on showing his passenger ticket, that the baggage-master knew it was merchandise, and that other passengers had similar packages, would not warrant a jury in finding that the corporation agreed to transport the merchandise, or became liable for it as a common carrier, in the absence of evidence of an agreement that the merchandise should be carried as freight, or that the baggage-master had authority to receive freight to be carried on a passenger train, or to bind the corporation to carry merchandise as personal baggage. In the opinion of the court, delivered by Chief Justice Gray, the earlier Massachusetts cases, and other cases, English and American, were cited, and it was said: "In the case at bar the plaintiff offered and delivered the bundles as his personal baggage, and requested that they might be checked as such; and the baggage-master gave him checks for them accordingly, as he was bound to do for personal baggage of passengers by the St. of 1874, c. 372, sec. 136. There was no evidence that either the plaintiff or the baggage-master agreed or intended that they should be carried as freight, or that the baggage-master had any authority to receive freight on a passenger train, or to bind the corporation to carry merchandise as personal baggage. The case cannot be distinguished in principle from the previous decisions of this court, already cited. Evidence tending to show that the baggage-master knew or supposed the bundles to contain merchandise, or that other passengers had similar bundles, would not warrant the jury in finding that the defendant agreed to transport the

Opinion of the Court.

plaintiff's merchandise or become liable therefor as a common carrier."

In Hawkins v. Hoffman, 6 Hill, 586, it was held that the usual contract of a carrier of passengers included an undertaking to receive and transport their baggage, though nothing was said about it; that if it was lost, even without the fault of the carrier, he was responsible; but that the term "baggage" in such case did not embrace samples of merchandise carried by the passenger in a trunk, with a view of enabling him to make bargains for the sale of goods.

In Belfast &c. Railway v. Keys, 9 H. L. Cas. 556, a railway passenger, with knowledge that the company, although allowing each passenger to carry free of charge a certain amount of luggage, required all merchandise to be paid for, took with him, as if it was personal luggage, a case of merchandise, and did not pay for it as such, and it was held that no contract whatever touching the same arose between him and the company, and that, therefore, on the merchandise being lost, he was not entitled to recover the value of it from the company.

In Cahill v. London & Northwestern Railway, 10 C. B. (N. S.) 154, in the Court of Common Pleas, where a railway company was accustomed to allow each passenger to take with him his ordinary luggage, not exceeding a given weight, without any charge for the carriage of it, a passenger took with him as luggage a box containing only merchandise, but not exceeding in weight the limit prescribed for personal luggage. He gave no information to the company's servants as to the contents of the box, nor did they inquire, although the word "glass" was written on the box in large letters. In an action to recover against the company for the loss of the box, it was held that, inasmuch as it contained only merchandise, and not personal luggage, there was no contract on the part of the company to carry it, and the company was not liable for the loss. That decision was affirmed in the Exchequer Chamber, 13 C. B. (N. S.) 818.

In Mich. Central Railroad v. Carrow, 73 Illinois, 348, a passenger on a railroad had brought to the depot a trunk which

Opinion of the Court.

contained costly jewelry, gave no notice of its contents, and had it checked as ordinary baggage, and there was nothing about the trunk indicating its contents. It was consumed by fire while being carried, the company not being guilty of gross negligence, and it was held that the company was not liable for the contents of the trunk. It was further held, that a carrier of passengers is not bound to inquire as to the contents of a trunk delivered to the carrier as ordinary baggage, such as is usually carried by travellers, even if the same is of considerable weight, but may rely upon the representation, arising by implication, that the trunk contains nothing more than baggage; that it is the duty of a passenger having valuable merchandise in his trunk or valise, and desiring its transportation, to disclose to the carrier the nature and value of the contents; that, if the carrier then chooses to treat it as baggage, without extra compensation, the liability of the carrier will attach, but not otherwise; and that where a person, under the pretence of having baggage transported, places in the hands of the agents of a railroad company merchandise, jewelry and other valuables, without notifying them of the character and value of the same, he practises a fraud upon the company which will prevent his recovery in case of a loss, except it occurs through gross negligence.

In Haines v. Chicago, St. Paul &c. Railway, 29 Minnesota, 160, it was held that a carrier of passengers for hire was bound only to carry their "personal baggage"; that, if a passenger delivered to the carrier as baggage a trunk or valise containing merchandise, not his personal baggage, of which fact the carrier had no notice, the carrier, in the absence of gross negligence, would not be liable for its loss; and that the carrier was not bound to inquire, in such a case, as to the nature of the property, but had a right to assume that it consisted only of the personal baggage of the passenger.

In Pfister v. Central Pacific Railroad, 70 California, 169, it was held that a railroad ticket entitling the purchaser to transportation in the first-class passenger coaches of the seller between the points indicated thereon, gave the purchaser the right to have his luggage, not exceeding the quantity specified

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in the ticket, transported at the same time free of charge, but that it did not give him the right to transport, either in his own charge or that of the railroad company, any merchandise or property not included in the term "luggage."

In the present case, there is no allegation in the intervening petition of any gross negligence in the receivers, nor does the evidence make out any.

Various cases are cited on the part of the intervenors; but either we do not concur in the views expressed in them, or they are distinguishable from the present case. Thus, in Kuter v. Michigan Central Railroad, 1 Bissell, 35, it was said by Judge Drummond, in a charge to a jury, that, if the railroad company knew that immigrants, like the plaintiff, were in the habit of putting valuable articles and money among their household goods, and from such knowledge might have inferred that the box of the plaintiff might contain money, then it became the duty of the company to make inquiry in order to relieve itself from liability. But we do not think that view is sound.

In Minter v. Pacific Railroad, 41 Missouri, 503, the merchandise in question was fully exposed, and it was known to the railroad company's agent what it was.

In Hannibal Railroad v. Swift, 12 Wall. 262, it was held by this court that where a railroad company received for transportation, in cars which accompanied its passenger trains, property of a passenger, other than his baggage, in relation to which no fraud or concealment was attempted or practised upon its employés, it must be considered to have assumed, with reference to that property, the liability of a common carrier of merchandise. But that is not the present case.

So, also, the case of Stoneman v. Erie Railway, 52 N. Y. 429, was one where a carrier of passengers, in addition to passage money, demanded and received from a passenger compensation as freight for the transportation of packages containing merchandise and baggage; and it was held, in the absence of evidence of fraud or concealment on the part of the passenger as to the contents of the packages, that such carrier, in case of loss, was liable for the merchandise as well as the baggage.