Pennsylvania Company v. Miller.

control" of the husband, so as to vest in him such a special property as would authorize a conviction under the indictment. To say the least, this instruction was misleading. The jury ought to have been told that if the shawl was not purchased with money given by the husband to his wife, the mere fact that the shawl was stolen from the family residence did not authorize a finding of the property in the husband as charged in the indictment. [Omitting a minor question.]

Judgment reversed and cause remanded for a new trial.

A carrier of passengers does not insure the safety of samples of merchandise, delivered by a travelling salesman to him as baggage, yet by receiving, carrying, and putting them into his warehouse for safe keeping, he becomes bound to ordinary prudence in their care.*

A

CTION of damages for loss of a valise, containing samples of merchandise, delivered by a travelling salesman to a common carrier as baggage, carried to the destination, and there placed in the carrier's warehouse. It was stolen therefrom by burglars. The plaintiff alleged that the warehouse was insecure and unsuitable. The court charged: "The only question is as to the liability of the defendant after the goods were landed at Forest, and that ques tion will be whether defendant took such care of the property as the law would require it to do. When a railroad company takes baggage for a passenger its liability is of the highest sort. It agrees to carry the baggage safely, and insures (as seems to be admitted) against all sorts of risks, except the acts of God or the public enemy. But when the baggage is landed, it is the duty of the owner to call immediately, or as soon as the throng and hurry incident to the arrival and departure of the train has subsided, and get his property. But if he fails to thus call, and the agent of the

See Albany v. Boston & Albany R. Co. (126 Mass. 121), 30 Am. Rep. 667.

railroad company takes charge of it, then responsibility will be changed. It will be the responsibility of a warehouseman instead of that of a common carrier. The liability will be to take such care of the property as an ordinarily prudent man would of his own property under the like circumstances. You will therefore ook at all the circumstances of this case, and see whether the railroad company's agents did in this case take such care as a prudent man would under like conditions and surroundings. *** All the defendant is required to do is to take ordinary care under the circumstances, such as men usually exercise in their own concerns. The defendant is not liable for theft of the goods unless it is the result of the want of proper care." The plaintiff had judgment below.

J. T. Brooks, for plaintiff in error, cited Macroy v. Railroad Co., 6 Q. B. 612; Railroad Co. v. Shepperd, 8 Exch. 30; Cahill v. Railroad Co., 13 C. B. 818; Phelps v. Railroad Co., 19 id. 321; Wilson v. Railroad Co., 56 Me. 60; 9 Wend. 85; Pardee v. Drew, 25 Wend. 459; Hawkins v. Hoffman, 6 Hill, 586; Stoneman v. Railroad Co., 52 N. Y. 429; Perley v. Railroad Co., 65 id. 374; Sloman v. Railroad Co., 67 id. 208; Weeks v. Railroad Co., 72 id. 50; s. c., 28 Am. Rep. 104; Jordan v. Railroad Co., 5 Cush. 69; Collins v. Railroad Co., 10 id. 506; Stimpson v. Railroad Co., 98 Mass. 83; id. 371; Railroad Co. v. Shea, 66 Ill. 471; Railroad Co. v. Carrow, 73 id. 348.

Wm. Lawrence and Joseph H. Lawrence, for defendants in error. I. When the baggage of a railroad passenger is unclaimed at its destination, it is the duty of the railroad company, as a common carrier, to store it in a proper and secure place until called for, and when so stored the carrier becomes liable therefor as a warehouseman, charged with the duty to take ordinary and reasonable care of it. Bartholomew v. St. Louis R. R., 53 Ill. 227; s. c., 5 Am. Rep. 45; Mote v. Chicago & N. W. R. R. Co., 27 Iowa, 22; s. c.,1 Am. Rep. 212; Ouimit v. Henshaw, 35 Vt. 605; Roth v. B. & L. R. R. Co., 34 N. Y. 548; Powell v. Myers, 26 Wend. 591; Frances v. Dubuque & S. C. R. R., 25 Iowa, 60; Vanhorn v. Kermit, 4 E. D. Smith. 453; Merrill v. Grinnell, 30 N. Y. 594; Burnell v. N. Y. Central R R., 45 id. 184; s. c., 6 Am. Rep. 61; Chicago, Rock Island & P. R. R. v. Fairclough, 52 Ill. 106.

II. The same rule applies to samples of merchandise carried as

Pennsylvania Company v. Miller.

baggage by travelling salesmen for the purpose of making sales. Cincinnati & Chicago R. R. v. Marcus, 38 Ill. 219; Mich. S. & N. Ind. R. R. Co. v. Oehm, 56 id. 293; Camden & Amboy R. R. v. Baldauf, 16 Penn. St. 67; 2 Redf. Am. Ry. Cas. 267; 2 Smith and Bates' Am. Ry. Cas. 357; Minter v. Pacific R. R. Co., 41 Mo. 503; Butler v. Hudson River R. R. Co., 3 E. D. Smith, 571; Hannibal R. R. Co. v. Swift, 12 Wall. 262; Bartholomew v. St. Louis R. R., 53 Ill. 227; Dexter v. Syracuse, Binghamton & New York R. R. Co., 42 N. Y. 326; Phillips v. Earl, 8 Peck, 182; 4 Bing. 218; Relf v. Rapp, 3 W. & S. 21.

As the railroad company accepted the valise and samples in this case without inquiry, there was an implied contract to carry them as insurer of baggage proper. Burnell v. N. Y. Central R. R. Co., 45 N. Y. 184; Collins v. Boston & Maine R. R. Co., 10 Cush. 506; Miss. Cen. R. v. Kennedy, 41 Miss. 671; Stimpson v. Conn. River R., 98 Mass. 83; 2 Redf. on Railw., § 175, 56 u.

The custom of the railroad company to carry samples as baggage for travelling salemen charges it with a liability for the loss. McMasters v. Penn. R. R. Co., 69 Penn. St. 374; s. c., 8 Am. Rep. 264; s. c., 2 Redf. Am. Ry. Cas. 61.

WHITE, J. [Omitting minor matters.] 2. The valise in question having been safely carried to its place of destination, and there received by the agent of the carrier and placed in its warehouse, the question arising on the charge is whether the rule laid down by the court for the guidance of the jury prescribes a higher standard of care than the law requires. It is claimed, on behalf of the carrier, that it does; and that if the carrier can be held liable at all, it can only be for gross negligence.

As was said in Griffith v. Zipperwick, 28 Ohio St. 388, "the term gross negligence is scarcely susceptible of legal definition; but there is a degree of care (indefinitely varied by the nature of the deposit and circumstances of the case) which the depositor has a right to expect from the depositary, the want of which is so designated, and will render the depositary liable if a loss results therefrom."

Accordingly it was held in that case that good faith requires generally that a bailee who is only liable for gross negligence should keep the goods intrusted to him with as much care as he ordinarily keeps his own of the same kind, and that he should also keep them

Byers v. Farmers' Insurance Company.

with such a degree of care as is reasonable with reference to the nature of the goods and the particular circumstances of the bailment. In the present case the valise did not contain what was properly baggage. The contents consisted of samples of merchandise, which the agent of the plaintiffs carried with him to facilitate his business in making sales. The implied undertaking of the carrier to insure the safe carriage of baggage did not therefore extend to these goods. He was not, however, for this reason, relieved of all responsibility in regard to the safe carriage and keeping of the property. By voluntarily taking it into his charge and finally putting it in his warehouse for safe keeping, he assumed the rela tion to it of an ordinary bailee.

The court told the jury that the duty growing out of this relation was to take such care of the property as an ordinarily prudent man would of his own property under like circumstances.

With the general rule thus stated we find no fault, and a less degree of care ought not, in our opinion, to be allowed.

[Omitting minor matters.]

The judgment will therefore be reversed, as well for the refusal of the court to charge as above stated as for refusing to set aside the verdict as being against the evidence.

Judgment reversed.

BYERS V. FARMERS' INSURANCE COMPANY.

(35 Ohio St. 606.)

Insurance — fire — innocent representation of amount of incumbrance — sale or

A policy of fire insurance was conditioned to be void in case of any faise rep resentation of the condition or occupancy of the property material to the risk. In the application it was asked: Is the property incumbered? If so state to what amount, and the value of the premises." This was answered: "Yes; mortgage $2,000-$10,000." The mortgage made by the insured was for $3,200, and $240 accrued interest was also due on it. The policy made the application part of the contract. Held, that the policy was avoided. (See note, p. 629.)

A mortgage is not a sale or transfer of title within the prohibition of an insur ance policy.*

*To same effect, Quarrier v. Peabody Ins. Co. (10 W. Va. 507), 27 Am. Rep. 582; Dol liver v. St. Joseph F. & M. Ins. Co., 128 Mass. 815; Kronk v. Birmingham F. Ins. Co... 91 Penn. St. 300.

A

Byers v. Farmers' Insurance Company.

CTION on a fire policy. The opinion sufficiently states the point. The plaintiff had judgment at trial, which was reversed by the District Court.

George E. Seney and Noble & Sutes, for plaintiff in error.

Critchfield & Graham, for defendant in error.

JOHNSON, J. [Omitting a question of practice.] Did the District Court err in refusing to give the charges asked and in charging as stated?

This question involves two distinct legal propositions:

1. As to the effect of the representations made concerning the mortgage incumbrance on the property at the time the contract was made.

2. As to the execution of the second mortgage without the consent of the defendant.

1. As to the representations made by plaintiff concerning the amount of the mortgage.

The policy provides that "the application and description of the property insured and referred to in this policy shall be considered as part of this contract, and any false representations by the assured of the condition or occupancy of the property, or any material fact material to the risk, this policy shall be void."

The representation was that the mortgage was only $2,000. The truth was that it was $3,440; including $240 of accrued interest.

That this was a representation material to the risk admits of no controversy. Hutchins v. Cleveland Mut. Ins. Co., 11 Ohio St. 480; Davenport v. New Eng. Ins. Co., 6 Cush. 340; Hayward v. New Eng. Ins. Co., 10 id. 444; Brown v. People's Ins. Co., 11 id. 280; Jacobs v. Eagle Ins. Co., 7 Allen, 132; May on Ins., § 200; Flanders on Ins. 280.

The request to charge was that this representation, being untrue, avoided the policy. The charge given was that it did not, that it was only a representation, and not a warranty, and was no defense.

No evidence was offered tending to show that the insured was guilty of moral falsehood or fraud in making this false statement, other than the presumption that arises from the fact that it was a mortgage made by himself, and therefore he knew, or must be presumed to have known, his statement was false.