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Carrier excess baggage absence of excess check.

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1. Failure of a railroad company to put on a piece of excess baggage the check required by its rules, to show payment of excess fare, does not preclude the owner of the baggage from showing that he had in fact made the excess payment.

[See note on this question beginning on page 109.]

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APPEAL by defendant from a judgment of the Common Pleas Circuit Court for Marion County in favor of plaintiff in an action brought to recover damages for alleged wrongful withholding by defendant of plaintiff's trunks. Affirmed.

The facts are stated in the opinion The exceptions referred to in the opinion were as follows:

1. Because his Honor, the presiding judge, erred, it is respectfully submitted, in refusing to direct a verdict for the defendant on the cause of action based upon wilfulness and in refusing to grant a new trial, on the following grounds:

First. That there is no proof of any wilful or wanton conduct on the part of the defendant which would warrant a verdict for punitive damages.

Second. That the entire proof shows that the acts of the railroad employees were nothing more than an honest effort on their part to enforce the provisions of the statute laws of the state, and the rules of the Railroad Commission prohibiting discrimination against different

of the court.

passengers in the carriage of bag

gage.

2. Because his Honor erred, it is respectfully submitted in charging the jury as follows:

"Now, Mr. Foreman, I charge you that it is the duty of the agent in receiving baggage for checking— the receiving agent-to ascertain, under the rule put in in this case, the weight of the baggage for himself. But if he chooses to do so he may accept the passenger's statement; but that would be a breach of the rule when he does. But, Mr. Foreman, it is the receiving agent's duty to collect this excess fare for transporting a trunk at the time he checks it; and if he checks a trunk the very fact of its being checked is prima facie evidence that the law has been complied with; that the excess has

(104 S. C. 63, 88 S. E. 273.)

been paid. So, when a party presents a check issued by the railroad company at a point of destination and calls for a particular trunk, the very fact that he has that check in his possession and presents it raises the prima facie presumption that he has paid for all excess due on that particular trunk. It is not a conclusive presumption; it may be overcome by testimony; but it casts upon the railroad who disputes the payment of the excess, if there be excess, the burden of showing by the greater weight of the evidence that the excess has not been paid. In other words, the railroad must satisfy the jury by such evidence as would overcome, by such weight as would overcome, the prima facie presumption that the excess baggage had been paid, by reason of the fact that the passenger had in his possession a check calling for that particular piece of baggage."

"I charge you that under rule 19 of the railroad company, put in evidence in this case, that the prima facie presumption is that where the railroad checks baggage that the excess has been collected by the receiving agent of the railroad checking it. That is merely prima facie presumption, not an irrebuttable presumption. It may be overcome by evidence of such weight in the judgment of the jury as would overthrow the presumption arising from the mere fact that it had been checked. If you find the plaintiff did have a check for his baggage and presented that at Marion and the railroad withheld his baggage because of the claim that the excess had not been paid, then I charge you that the burden is on the railroad company to overcome the presumption arising from the mere fact of having the checks, by testimony sufficiently strong for that purpose. Failing to do that, the presumption is that the plaintiff paid the excess baggage or he would not have had the checks."

In that: (a) Under the rule of the defendant company introduced in evidence, where excess charges

are collected by the forwarding agent, the same must be plainly indicated on an excess baggage check; and the uncontradicted evidence in this case was that the plaintiff's checks for the baggage in question were ordinary checks, and did not show that any excess charges had been paid, and, therefore, there was no presumption that such charges were paid by the plaintiff to the forwarding agent.

(b) Under the rule of the defendant company introduced in evidence, it is the duty of the agent at the point of destination to weigh all baggage when in doubt as to whether same is more than free allowance, and if found over weight, and the forwarding agent has not assessed proper excess charge, to collect proper charges; hence, the presentation of an ordinary check showing no payment of excess creates no presumption that the excess charges were paid to the forwarding agent.

(c) The plaintiff's right to the transportation of the baggage in question did not arise out of the ordinary contract of passage made by the payment of his railroad fare, but arose out of a special contract for the transportation of baggage in excess of the amount required by law to be carried free of charge; and, therefore, the burden was upon the plaintiff to prove compliance by him with the special contract and the payment of the excess charges required by said special contract.

(d) It was the duty of the agent of the defendant company at the point of destination to comply with the company's rule, introduced in evidence, and collect the excess charges pursuant to the said rule, the same being in accordance with the rules of the Railroad Commission and the statutory law of the state; and the failure to comply with said rule of the company would be a violation of the statutory law of the state and the rules of the Railroad Commission, prohibiting discrimination among different passengers in the transportation of baggage.

3. Because his Honor erred, it is

respectfully submitted, in charging the jury as follows: "The duty of the agent of the railroad company is to heed the reasonable explanation of the passenger not only as to the rights of personal transportation, but to his right to the transportation of his personal property, and any reasonable explanation they are bound to heed, to the extent that if they go forward and act in contravention of the reasonable explanation of the passenger they do it at the railroad's risk, if it should turn out that the passenger was right. Then the railroad would be wrong, and the railroad must pay the damages of the result. To that extent they must heed the reasonable explanation of the passenger. Now, if there is opportunity to investigate, they must investigate and find out whether or not the passenger's statement is correct."

In that: (a) The said charge was irrelevant to the issues in the case, inapplicable to the evidence, and tended strongly to mislead the jury to the prejudice of the defendant, because there was no evidence that the plaintiff gave to the agents of the railroad company any reasonable explanation whatever as to why the checks presented by him for the baggage in question were ordinary checks, and showed no payment of excess charges.

(b) The charge was a charge on the facts, plainly indicating to the jury that plaintiff had offered a reasonable explanation.

(c) There was no evidence that the defendant company did not make such investigation as was possible in the circumstances.

4. Because his Honor erred, it is respectfully submitted, in charging the jury as follows: "I charge you, Mr. Foreman, that the check for a particular piece of baggage merely is the evidence of the passenger's right to demand that baggage, and the passenger is not bound to examine the check; if he has made a contract with the railroad company to transport his baggage from one point to another, he is under no ob

ligation to examine the check to see whether or not it is right. He had the right to assume that the railroad agent had done his duty, and he had given him such check as was right under their contract. The supreme court of this state has passed on that question, and has laid down the law as follows: Quoting from a New York case, the court says: 'In the case of Isaacson v. New York C. & H. R. R. Co. 94 N. Y. 278, 46 Am. Rep. 142, which was very similar to this case, the court said: In this case the request to check over the Mobile route was made to the baggage master and assented to by him, and he assumed to give checks in accordance with the request. This constituted, we think, an agreement binding on the company, and unless the plaintiff's omission to examine the checks was contributory negligence, we are of opinion that the nonsuit was erroneous. The primary purpose of giving the passenger a duplicate check is to enable him to identify and claim his baggage at the end of the route. It has never, we think, been regarded as embodying the contract of carriage, but only as a voucher or token for the purpose mentioned. See Quimby v. Vanderbilt, 17 N. Y. 306, 72 Am. Dec. 469; Van Buskirk v. Roberts, 31 N. Y. 661; Blossom v. Dodd, 43 N. Y. 264, 3 Am. Rep. 701; Rawson v. Pennsylvania R. Co. 48 N. Y. 212, 8 Am. Rep. 543. The plaintiff had a right to repose upon the representation of the baggage master, without examining the checks.""

In that: (a) The said charge was irrelevant to the issues in the case, inapplicable to the evidence, and tended strongly to mislead the jury to the prejudice of the defendant, because the evidence clearly shows that the plaintiff knew the checks given him by the forwarding agent of the company were not excess baggage checks, and did not show the payment of excess baggage charges, while the principle laid down by the court applies only to a case where a party does not examine the check given him, and it transpires that

(104 S. C. 63, 88 S. E. 273.) such check was not the kind that should have been given him under his contract; and, further, does not apply to a special contract for the transportation of baggage, exceeding in weight the amount required by law to be carried free of charge.

The duty of being reasonable rested as much upon the plaintiff as upon defendant's agents.

(b) While the possession of a duplicate check enables a passenger to identify and claim his baggage at the end of the route if there are no charges due thereon, the possession of an ordinary check which does not show the payment of excess charges affords no presumption that the excess charges were paid, when the party holding such check knew that if he had paid the excess charges he was entitled to a check showing the payment of same.

5. Because his Honor erred, it is respectfully submitted, in refusing to permit M. V. Orr, agent of the defendant company, at Marion, South Carolina, the point of destination, to testify that he reported to counsel of the defendant company that the baggage in question had come through his office, since the institution of this suit, without the excess checks, in that the plaintiff testified that his trunks had gone through on other occasions without the excess checks, without being "held up," and the testimony offered by the defendant would have tended to show the reason for this occurrence and the motives of the plaintiff in instituting this suit.

Messrs. H. E. Davis and L. D. Lide, for appellant:

The possession of an ordinary check is not prima facie evidence that the excess baggage charges have been paid.

Park v. Southern R. Co. 78 S. C. 304, 58 S. E. 931; 3 Am. & Eng. Enc. Law, 2d ed. 580; Moore, Carr. p. 721; 6 Cyc. 669; Talcott v. Wabash R. Co. 159 N. Y. 461, 54 N. E. 1.

If the agents of defendant made a mistake they acted in good faith, and where an act has been done in good faith, though it may result in injury, there can be no recovery of exemplary damages.

Gwynn v. Citizens' Teleph. Co. 69 S. C. 444, 67 L.R.A. 111, 104 Am. St. Rep. 819, 48 S. E. 460.

Saunders v. Atlantic Coast Line R. Co. 101 S. C. 11, 85 S. E. 167.

Messrs. L. M. Gasque and A. F. Woods, for respondent:

It was defendant's business, and not the business of the plaintiff, to properly check the baggage, and plaintiff had a right to presume that the railroad company would give him the proper kind of check.

Strange v. Atlantic Coast Line R. Co. 77 S. C. 184, 57 S. E. 724; Smith v. Southern R. Co. 88 S. C. 426, 34 L.R.A. (N.S.) 708, 70 S. E. 1057; Fleischman v. Southern R. Co. 76 S. C. 241, 9 L.R.A. (N.S.) 519, 56 S. E. 974; Webb v. Atlantic Coast Line R. Co. 76 S. C. 198, 9 L.R.A.(N.S.) 1218, 56 S. E. 954, 11 Ann. Cas. 834; Sullivan v. Southern R. Co. 74 S. C. 377, 54 S. E. 586; Smith v. Southern R. Co. 88 S. C. 425, 34 L.R.A. (N.S.) 708, 70 S. E. 1057; Corley v. Southern R. Co. 89 S. C. 432, 71 S. E. 1035; Mills v. Southern R. Co. 90 S. C. 373, 73 S. E. 772.

The forwarding agent did not attach to the trunks the check usually attached when excess has been paid; but if the excess was paid this was an omission of duty of defendant's agent, with which plaintiff had nothing to do.

Smith v. Southern R. Co. 88 S. C. 426, 34 L.R.A. (N.S.) 708, 70 S. E. 1057.

A check in the possession of a passenger is evidence that his baggage has been delivered to the company, and the object in giving the check is to identify the holder at the end of the journey as the person to whom the delivery of the baggage should be made.

Dill v. South Carolina R. Co. 7 Rich. L. 158, 62 Am. Dec. 407; Park v. Southern R. Co. 78 S. C. 306, 58 S. E. 931; Strange v. Atlantic Coast Line R. Co. 77 S. C. 184, 57 S. E. 724; Brunson v. Atlantic Coast Line R. Co. 76 S. C. 14, 9 L.R.A. (N.S.) 577, 56 S. E. 538; Fleischman v. Southern R. Co. 76 S. C. 247, 9 L.R.A. (N.S.) 519, 56 S. E. 974; Jenkins v. Southern R. Co. 73 S. C. 291, 53 S. E. 480; Meyer v. Atlantic Coast Line R. Co. 92 S. C. 101, 75 S. E. 209; Prescott v. Southern R. Co. 99 S. C. 424, 83 S. E. 781.

The carrier must heed the reasonable explanation of the passenger to the extent that, if the explanation is correct, the railroad company is wrong and is responsible for its wrong.

Richardson v. Atlantic Coast Line R.

Co. 71 S. C. 444, 51 S. E. 261; Smith v. Southern R. Co. 88 S. C. 421, 34 L.R.A. (N.S.) 708, 70 S. E. 1057; Corley v. Southern R. Co. 89 S. C. 432, 71 S. E. 1035.

Plaintiff was in fact and technically a passenger.

Martin v. Southern R. Co. 51 S. C. 150, 28 S. E. 303, 3 Am. Neg. Rep. 501; DuBose v. Atlantic Coast Line R. Co. 81 S. C. 271, 62 S. E. 255.

The refusal of the court to permit the defendant's agent at Marion to testify as to certain communications between him and the counsel for the railroad was not prejudicial.

Minshew v. Atlantic Coast Lumber Corp. 98 S. C. 8, 81 S. E. 1027.

Gage, J., delivered the opinion of the court:

Action for the denial of the plaintiff's right to have possession of his trunks. Verdict for the plaintiff for $900 punitive damages and $100 actual damages, the latter reduced by the circuit court to $25. Appeal by the defendant.

History: The plaintiff is of middle age, resides at Marion, and has traveled as a commercial salesman for nineteen years. He went from Walterboro to Marion, over the defendant's lines, and carried two "drummer's trunks" with him. The trunks confessedly weighed in excess of the 200 pounds free allowance for such baggage; in avoirdupois, the excess was 200 pounds, and for that the plaintiff was due to pay the defendant $1.70. The plaintiff and trunks reached Marion on Saturday, and the trunks remained in the station house there nine days, uncalled for. At the end of that period of time the plaintiff essayed to go from Marion to Columbia, and he presented the checks he received at Walterboro and his mileage book, and requested that the trunks be rechecked to Columbia. The baggage agent at Marion demanded payment of excess fare on the trunks from Walterboro to Marion, which the plaintiff declined, and thereout this suit arose.

The appellant has argued three questions, and we shall discuss them rather than the exceptions, for they

embody the exceptions; but the exceptions may be reported. The appellant's three postulates are these:

(1) The presiding judge erred, it is respectfully submitted, in holding that the possession of an ordinary check is prima facie evidence that the excess baggage charges have been paid.

(2) The presiding judge erred, it is respectfully submitted, in refusing to direct a verdict for defendant as to punitive damages, and in his charge to the jury relating to such damages.

(3) The presiding judge erred, it is respectfully submitted, in the exclusion of certain testimony.

These in their order:

1. The testimony tends to show, and there is no difference about it, that on trunks like these there are sometimes put, if not generally put, two sorts of checks,-one the ordinary paper model issued to a passenger who carries baggage; the other an excess check of a different model from the ordinary baggage check. The excess check indicates on its face the payment of the excess fare, and possibly the amount of it. It is not clear from the testimony if a duplicate of the excess check is furnished to the passenger, as is done in case of an ordinary baggage check. Rule 19, hereinafter set out, is silent on the subject. The court asked Orr: "Does the check given to the passenger show whether the excess has been paid or not?" and the witness answered: "Yes, sir; it does, and possibly the amount." But it is not plain from this answer what check was referred to, the ordinary check or the excess check. The plaintiff testified: "I have seen checks that show excess fare, and they generally put them on." The exhibit B, which sets out the form and contents of the excess check, indicates that there was issued on it a "strap check," and a "duplicate check," presumably one for the trunk and one for the passenger.

The rule of the company on the subject of excess checks is as fol

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