New Orleans N.E.R. Co. v. Thigpen

Counsel

Bozeman Cameron, for appellant. Railroad company here was a mere gratuitous bailee, or at most a warehouseman. Under the circumstances of this case the appellant was nothing more than a gratuitous bailee. No consideration whatever passed to it for the service, the benefit of which the plaintiff claimed below. The railroad company was under no obligation to accept the baggage. See section 6697, Hemingway's Code. Aside from our statute, this seems to be the rule as laid down by the general statements of the law. 10 C.J. 1197; Atlanta Terminal Company v. American Baggage, etc., Co., 125 Ga. 677 , 55 S.E. 711. See to the same effect 5 Elliott on Railroads (3 Ed.) sec. 2514 and note. We insist, therefore, that under the facts of this case the liability of the railroad was only that of gratuitous bailee. If we should be mistaken in this, however, we submit that the liability would certainly be confined to that of mere warehouseman and not to that of a common carrier. For instance, in 5 Elliott on Railroads (3 Ed.), par. 2731, it is stated that: "It has already been shown that the carrier sustains the relation of warehouseman towards goods stored for future shipment until such shipment is directed." If we are correct in our contention that the railroad company was liable only as gratuitous bailee, plaintiff would have to show gross negligence on the part of the railroad company; and in this he wholly failed; and the peremptory instruction should have been given. If the railroad company was liable as bailee for hire, or warehouseman, its liability would be dependent upon negligence and the burden would be upon plaintiff to show the negligence relied upon. See 5 Elliott on Railroads (3 Ed.), par. 2731; 26 A.L.R. 223 and note. Compare Meridian Association v. Birmingham Street Railway Company, 70 Miss. 808 . Under these authorities it is respectfully submitted that the plaintiff wholly failed to make out a case of negligence against the defendant. It appears without controversy both from the evidence of the plaintiff and defendant below, that the baggage room was robbed and the trunk of plaintiff taken. It also appears without contradiction that the building was a substantial one having only one door, and that was provided with a standard lock, and that the key was kept in a proper place. Indeed, the key was never removed and whoever stole the trunk evidently broke the lock to the depot and threw it away. This being true, we submit that the peremptory instruction asked by the appellant should have been given and that the case should be reversed because of error of the court below in failing to give it. Leonard B. Melvin, for appellee. Counsel for appellants say that: "For a decision of this case it is necessary to determine whether the railroad company, under such circumstances, holds the baggage as a gratuitous bailee, warehouseman, or common carrier." The railroad company accepted this baggage under what condition? That appellee return the next day and purchase a ticket from their company. Surely there was an expected benefit from the bailment. Bain v. Culbert, 96 So. (Ala.) 228. If appellee had just been passing through the town of Ellisville, and had not intended to become a passenger on appellant's trains and had left his trunk with them until he could return and get the trunk, and the trunk had been stolen, then appellant would have been a gratuitous bailee, but there is a different state of facts in this case. A person becomes a bailee for hire when he takes property into his custody for compensation . . . Each transaction depends largely upon its own facts and circumstances, and the existing relations, if any, the parties may have to each other." Prince v. Alabama State Fair, 17 So. (Ala.) 449. Appellant here is a bailee for hire for expectant compensation, therefore liable for ordinary care, as so instructed by the trial court. This court in a number of instances has said what was a sufficient consideration to support a contract. Bryne v. Commings, 41 Miss. 192 ; Magee v. Catchings, 33 Miss. 672 . Counsel states that the appellee did not prove negligence. Appellee proved this: He delivered his trunk to appellant company, and he has never heard of nor seen same since. This evidence is undisputed; and in fact, was testified to by both appellant and appellee. We find our theory upheld in Miller v. Bank of Holly Springs, 95 So. Miss. 129, and Birmingham Terminal Company v. Thompson, 92 So. (Ala.), 803 which is a parallel case with the one at bar, and on which this appellee greatly depends for the sustaining of this verdict here.