having adopted it, adopts a practice and custom to the contrary; or if, notwithstanding such a rule, receives a person's trunk as baggage, trusting to his honesty to purchase a ticket or passage upon the train upon which the trunk is to go,-it will be liable for its loss, whether that loss occurs before or after the arrival and departure of the train, or before or after the purchase of a ticket or payment of fare.

In the case of Green v. Milwaukee & St. P. R. Co., 41 Iowa, 410, the facts were these: The plaintiff for two and one-half years had been teaching school in Decorah, Iowa. She spent her summers at Boscobel, Wisconsin, whither she was in the habit of going three times a year. On the afternoon of August 30, 1870, she talked with the company's agent at Boscobel about going back to Decorah, and informed him that her trunk would be sent to the depot that afternoon to take the early morning train west. In the evening of the same day plaintiff sent her trunk to defendant's depot, labeled with her name printed on a card, and "Decorah, Iowa," written below it, as she had been in the habit of doing three times a year, during the previous two and one-half years. The agent was not present when the trunk was left at the depot, but the trunk was afterwards locked up in defendant's baggage-room. Passengers frequently thus sent their trunks, thus marked. The agent at Boscobel had always refused to sell plaintiff a ticket, or to check her trunk, to Decorah; and she had been in the habit of paying her fare and getting her check upon the train. On the night the trunk was thus put in the baggage-room the depot was burned, and plaintiff's trunk was not afterwards seen. The next morning she went to the depot for the purpose of taking passage to Decorah, but abandoned the intention because of the loss of her trunk. The railroad company requested the trial court to instruct that it is not enough to make the company liable that the baggage was received by the company, but that it must be received under a contract to carry both the passenger and her baggage, and that this contract, to be binding, must be mutual, and bind both parties: that if the plaintiff placed herself under no obligation to become a passenger, but only expressed an intention to become a passenger at a future time; and that if, under the intention of the parties, the plaintiff could rightfully withdraw her trunk at any time without taking passage,-then defendant's possession of the trunk during the night was not that of a common carrier, and the plaintiff could not recover. A further instruction was asked that the obligation to carry the baggage cannot be separated from the obligation to carry the person; that if the plaintiff left the trunk in question with the agent the night before the morning on which she intended to take the train, and paid no fare, but simply expressed an intention to take the train the next morning, she did not, by so doing, become a passenger, and was under no obligation to become a passenger at all, and the defendant's obligation to take care of a passenger's baggage did not arise unless she afterwards became a passenger. In speaking of these instructions, the supreme court said:

"These instructions, though plausible, are unsound. They both recognize the doctrine that a railroad company assumes no duties as a common carrier respect

ing the baggage of one so long as he may withdraw his baggage and conclude not to take passage. A person may be entitled to be protected as a passenger without purchasing a ticket or entering a car. Allender v Chicago, R. I. & P. R. Co., 37 Iowa, 264, (270.) Yet it cannot be doubted that, before doing these acts, he might abandon his intention of taking actual passage. If a person can demand protection to himself as a passenger, he may also require that his baggage be cared for as the baggage of a passenger. Suppose a party at a railway station places his baggage in possession of the baggage-master, and procures a check, and proceeds to purchase a ticket, but before he makes the purchase his baggage is stolen, in consequence of which he is compelled to forego the journey, and determines not to buy a ticket, may he not recover on account of the loss of his baggage? The true question is, not what the party might do without the incurring of legal liability, but what, in view of all the circumstances disclosed, did he intend to do."

*

*

It was held that there was an acceptance of the trunk as baggage, and that the railway company was liable for its loss, although the plaintiff had not purchased a ticket nor paid for her carriage. See same case, Green v. Milwaukee & St. P. R. Co., 38 Iowa, 100.

In the case of Hickox v. Naugatuck R. Co., 31 Conn. 281, the facts were these: The plaintiff took his trunk to the station at 11 A. M.,.and requested that it might be checked for the next train, which started at 3 P. M. for Bridgeport. He was informed that it was not the custom to check baggage until about 15 minutes before the time when the train should leave, whereupon he left his trunk in the care of the agent of the company in the baggage-room of the station. At the customary time it was checked for him, and put on the cars for Bridgeport, and he went on the same train. When he received the trunk again it had been rifled of its contents, but whether before or after it was checked was not known. The company claimed, and asked the court to charge, that if the trunk was rifled after it was left at the station, and before it was checked, there could be no recovery. It was held that the railroad company was to be regarded as receiving the trunk for transportation when first delivered, and not for storage, and that its liability commenced as soon as it was delivered and received by the agent. The court said:

"The reasonable convenience of travelers requires that they have an opportunity to deliver baggage at any reasonable time before the departure of the train, and it is therefore the duty of a railroad company to keep an agent at all important stations to receive and take charge of baggage. It (the check) is not the contract, but evidence of the ownership, delivery, and identity of the baggage. It is the delivery and acceptance-the abandonment of all care of the baggage by the passenger, and the assumption of it by the agents of the carriers expressly or impliedly for the purpose of transportation-which fix the liability of the latter as such, and that liability begins when the baggage is delivered to the agent of the company for carriage."

There was no evidence that the owner of the trunk had a ticket when he left it with the agent.

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In the case of Camden & A. R., etc., Co. v. Belknap, 21 Wend. 354, the facts sufficiently appear in the opinion, by BRONSON, J. He said: "The facts which remain * * are that the defendants were common carriers between New York and Philadelphia, and that they carried passengers and their baggage, as well as merchandise. In conducting their business the defendants, either for profit or convenience, or both, kept two offices in the city of New York; in one of which (at No. 12 Washington street) they were in the habit of receiving, and, if requested, locking up, the baggage of persons intending to take passage on the next boat that should depart The plaintiff, intending to pro

ceed on his journey by the next boat, delivered his baggage at this office, where it was received by Blivin, the defendants' servant or agent, with full knowledge of the purpose for which it was delivered. Now, I think it quite clear, upon this statement, that the plaintiff's trunks were in the possession of the defendants as common carriers, and that they were answerable, in that character, for the safekeeping of the property."

The trunk was lost before the departure of the next boat, and the owner went by another route. He was allowed to recover the value of the trunk and contents. It is not definitely stated, but it is apparent, that he had not purchased a ticket or paid fare.

man.

In the case of Rogers v. Long Island R. Co., 1 Thomp. & C. 396, the facts were that the plaintiff sent his trunk to defendant's depot by an expressThe trunk had a card fastened on it marked with plaintiff's name and the place of his destination. The express-man placed the trunk by the side of a baggage crate, situated opposite a window in the ticketoffice, through which it might be seen. He informed the agent of defendant in charge of the depot where the trunk was, and such agent replied, "All right," and told two men who were in the depot to take care of it, whereupon the express-man left the depot. The plaintiff arrived later in the day, and purchased a ticket for Riverhead, and, upon applying for a check for his baggage, the trunk could not be found. The circuit judge charged the jury that, if they credited the witness who testified to these facts, the defendants became responsible for the safe delivery of the property. The supreme court said:

"We think this [charge] was correct. It is not easy to see what further act could be required of the plaintiff in order to make the delivery complete. No further act of his could put the property more fully within defendant's control." This decision was affirmed by the court of appeals. Rogers v. Long Island R. Co., 56 N. Y. 620.

Here, again, it is apparent that the owner of the trunk had not purchased a ticket or paid fare when the trunk was received by the carrier. We cannot regard the case of Ford v. Mitchell, 21 Ind. 54, cited by appellant's counsel, as controlling here, because in that case the box was not delivered to any one held out as the proper person to receive such freight. The case of Grosvenor v. New York Cent. R. Co., 39 N. Y. 34, also cited by appellant's counsel, turned upon the propositions that the property for shipment was not delivered at the proper place, and that the owner carelessly left it in a dangerous position, and, further, that it was not, therefore, delivered to the carrier. See, also, Bankier v. Wilson, 5 L. C. 203. It has been frequently held that, under certain circumstances, a person may be entitled to the rights and protection of a passenger, although he has not purchased a ticket or paid fare, and although there is no consummated contract of carriage. These cases turn upon the question as to whether or not the person in good faith intended to become a passenger. Thomp. Carr. 42; Allender v. Chicago, R. I. & P. R. Co., 37 Iowa, 264; Cleveland v. New Jersey Steam-boat Co., 68 N. Y. 306; Gordon v. Grandstreet & N. R. Co., 40 Barb. 546; Brien v. Bennett, 8 Car. & P. 724. If a person thus intending to become a passenger may be entitled to the rights and protection of a passenger as to his person, there is no reason

why a person thus intending to become a passenger may not hold the carrier for the loss of his baggage.

Without extending this opinion to express our approval or disapproval of the reasoning in the case upon the question of delivery, it is sufficient to say that, in the case before us, the trunk was delivered upon the platform, near the door of the baggage-room, which was certainly a proper place to deliver baggage to the baggage-man. The case of Mattison v. New York Cent. R. Co., 57 N. Y. 552, cited by appellant's counsel, was decided upon this state of facts. Upon arrival of the passenger and her baggage at the place of destination, she informed the baggage-master at the station that she desired to leave her trunk for a few days, perhaps for two weeks. The baggage-master replied that he was not allowed to and could not keep the baggage with the checks on; that if she gave up the checks the baggage would be perfectly safe. This she did and the trunk was left. About a week after it was thus left the trunk was delivered to one falsely claiming authority to receive it. It was held (DWIGHT and EARL C. C., dissenting) that the declaration of the agent was, in substance, a notification to the plaintiff that he was without power to continue in force the obligation of the company in respect to the baggage indicated by the check, and the surrender of the check was, in effect, an admission of the performance of that obligation,-that is, of the safe arrival and the delivery of the baggage. The decision was based upon the propositions that the surrender of the check, under the circumstances, was an admission by the plaintiff, not only of the safe arrival, but also of the delivery of the baggage to her, and that she was bound to know that the agent could not make storage contracts after the performance of the contract of carriage. The conclusion was combated in the opinion by the dissenting judges. It might suffice to say of this case that the facts are unlike the facts in the case before us. There, it was a question of fact as to whether or not the owner had received her trunk from the carrier; here, it is a question whether there is evidence which tends to show, or from which it may be reasonably inferred, that the carrier received the baggage from the owner. Here, the agent was held out as having general authority to receive the baggage of persons intending to go upon the company's trains; there, it cannot be said that baggage-masters are held out as having general authority to make contracts of storage, after the completion and performance of the contract of carriage. We are cited to the case of Wright v. Caldwell, 3 Mich. 51. In that case the owner of the trunk placed it upon a steam-boat, but he did not deliver it to any one, nor call the attention of any one connected with the boat to the fact that he had placed the trunk upon the boat for carriage, or for any other purpose. That case is different in many features from the case in hearing. Steam-boats carry both freight and passengers. When a trunk, therefore, is placed upon a steam-boat by the owner, it may be as freight or as baggage, according to circumstances. If not delivered and accepted as baggage, and the owner should allow the boat to depart without becoming a passenger, it is clear that he could not recover, as for lost baggage. But if a person delivers a trunk to a baggage-man of a railway company, and it is re

ceived, it is difficult to see how it could reasonably be said that it is received as freight. The baggage-man is held out as having authority to receive baggage, but he is not held out as having authority to receive freight. The public know that he has authority to receive baggage, and they are bound to know that he has not authority to receive freight, unless, indeed, he acts as both baggage-man and freight agent. When, therefore, a trunk is delivered to an agent of a railway company who is a baggage-man only, and he receives it, the presumption is that it is delivered and received as baggage.

The cases already cited by us show that a railway company may receive a trunk as baggage, and become liable for its loss as such before transit, upon the express or implied understanding that the owner is to become a passenger, although he has neither purchased a ticket nor paid fare. In such a case, the express or implied agreement to become a passenger makes the owner in such sense a passenger as to make the railway company liable for the loss of his baggage up to the time when the train leaves, and, it is ascertained that the owner has not kept his agreement by becoming a passenger. If the railway company is willing to receive a trunk as baggage, and assume the responsibility of holding it as such, upon the express or implied agreement of the owner to become a passenger, there is nothing to prevent its so doing. In the case before us, the evidence tends to show that the trunk was so received; and the evidence is clear that appellee kept her agreement by purchasing a ticket for passage upon the train upon which she informed appellant the trunk was to go.

We have thus spoken of what the company may do. In the case before us, whatever was done in behalf of the company was by a subordinate agent; and the further contention of appellant is that appellee's evidence shows that the agent had no authority to accept or receive baggage in advance of the train upon which it was to go, and in advance of the purchase of a ticket or the payment of fare by the owner. In other words, that the agent had no authority to receive the trunk until after a consummated contract of carriage by the payment of fare had been entered into between the owner of the trunk and the railway company. Appellee's evidence does show that the authority of the baggage-man was thus limited by the rules and regulations of the company. Whether or not the filing of the demurrer to the evidence withdrew all of this evidence is a question which, for the present, we do not decide, but treat the case as though that evidence were to be considered.

There is no evidence at all showing, or tending to show, that appellee had any knowledge or notice of the rules and regulations limiting the authority of the agent, or fixing the manner or time for receiving baggage by him. Her baggage having been received upon a former occasion under like circumstances, might well have led her to believe that the company thus received baggage in advance of trains, and in advance of the purchase of a ticket or the payment of fare; and she might well have been confirmed in this belief by the fact that, upon this occasion, the agent received the baggage without, in any way, giving notice of or