until after it had been shipped. Appellee cannot be prejudiced in her rights by this neglect of the company's agent.

(4.) Appellant complains that the court did not charge the law of the case, and refused a proper charge requested by appellant. We think the charge of the court is in no respect objectionable. Its propositions of law are well sustained by the authorities, and the entire charge is fair and applicable to the facts. As to the special charge requested by appellant, and refused by the court, we do not think the proposition presented by it is the law.

A mere failure on the part of the shipper to inform a carrier as to the value of the goods shipped by the carrier, would not per se, be such fraudulent concealment as to value, as would discharge the carrier from liability. It is asserted in the special charge refused that such mere failure would have the effect to discharge the carrier from liability. In support of this special charge appellant's counsel, in their briefs, have referred to several authorities, all of which we have not had opportunity to examine, some of them not being found in the library. In one of the cases it is said: "If the owner be guilty of any fraud, or imposition, in respect to the carrier, or by concealing the value, or nature of the articles, or deludes him by his own carelessness in treating the parcel as a thing of no value, or misrepresents a box to contain household goods when it contains medicines, he cannot hold the carrier liable," etc. Cox v. Heisley, 19 Penn. St. 243.

While the rule thus announced we believe to be correct, it does not, in our opinion, sustain the broad proposition contained in the special charge under discussion.

Another case referred to, Pardee v. Drew, 25 Wend. 458, is inapplicable to the case at bar, because that involved the question only as to the liability of a carrier for articles received for carriage as baggage, which were not baggage properly.

Section 565 of Story on Bailments, cited by appellant, does not sustain the proposition of the special charge. It is as follows: "It is the duty of every person sending goods by a carrier to make use of no fraud or artifice to deceive him, whereby his risk is increased, or care and vigilance may be lessened. And if there is any such fraud, or unfair concealment, it will exempt the carrier from responsibility under the contract, or, more properly speaking, will make the contract a nullity.

This same author, in section 567 of the same work, says: "In cases of common carriers, where there is no notice, the better opinion seems to be that the party who sends the goods is not bound to disclose their value until asked." In support of this text the author, in a note, refers to numerous authorities.

Another case cited by counsel for appellant, Orange County Bank v. Brown, 19 Wend. 86, is inapplicable to this case, the question involved being the same as in Pardee v. Drew, supra. Nor is

the position of appellant sustained by the citation from Angell on Carriers, but on the contrary, we understand that author as laying down the rule as we have stated it. Angell on Carriers, 3 ed., Sec. 266. We apprehend that no well considered case can be produced which holds that mere silence as to the value of goods delivered to a carrier, is, of itself, sufficient to discharge the carrier from liability for the loss of such goods, although the goods were of unusual value.

(5.) As to the facts of the case, the testimony was not altogether free from conflict, but there was sufficient evidence, in our opinion, to warrant the verdict of the jury.

The judgment is affirmed.

Relf v.

Concealment of Value of Goods. A person shipping goods by a common carrier is bound not to fraudulently conceal the value thereof. Rapp., 3 W. & S. 21; Coxe v. Hasley, 19 Pa. St. 243; Orange Co. Bank v. Brown, 9 Wend. 116; Ernest v. Express Co., 1 Woods, 573; Belger v. Dinsmore, 51 N. Y. 266; Magnin v. Dinsmore, 62 N. Y. 35; Chicago, etc., R. Co. . Thompson, 19 Ill. 578; Oppenheimer v. U. S. Express Co., 69 Ill. 62; St. John v. Express Co., 1 Woods, 612; Hayes v. Wells, 23 Cal. 185; Everett v. Southern Express Co., 46 Ga. 303; Cooper v. Berry, 21 Ga. 526; Great Northern R. Co. v. Shepherd, 14 Eng. L. & Eq. 367; McCance v. London & N. W. R. Co., 7 H. & N. 477; Houston & T. Č. R. Co. v. Burke, 9 Am. & Eng. R. R. Cas. 59.

When not Bound to Disclose Value of Contents.Where there is no improper means or artifice used to conceal the contents of a package and no question is asked by the carrier, the consignor is not bound to disclose the nature of the goods or their value. Phillips v. Earl, 8 Pick, 182; Sewall v. Allen, 6 Wend. 349; Hollister v. Newlin, 19 Wend. 234; Southern Express Co. v. Crook, 44 Ala. 468; Gorham M'f'g Co. v. Fargo, 45 How. Pa. 90; Camden and Amboy R. R. Co. v. Baldauf, 16 Pa. St., 67; Lebeau v. General Steam Nav. Co., L. R. 8. C. P. 88.

5

If he be asked as to the value, he must of course give true answers. Walker v. Jackson, 10 M. &. W. 168; Boskowitz v. Adams Express Co., Cent. L. J. 58; Graves v. Lake Shore and M. S. R. Co., and note, supra. Notices. According to some authorities if the carrier posts up a notice requiring shippers to inform him of the character and value of the merchandise shipped, he is not obliged to inquire from the shipper as to such merchandise, and it amounts to a fraud on the part of the shipper, if the articles be other than they outwardly appear, to remain silent. Orange Co. Bank v. Brown, 9 Wend. 145; Batson v. Donovan, 4 Barn. & Ald. 21; see contra, Sleat v. Fagg, 5 B. & Ald. 342; Brooke v. Pickwick, 4 Bing. 218; Butt v. Gt. Western R. Co., 11 C. B. 140; Garnett v. Willan, 5 B. & Ald. 53; Riley v. Horne, 5 Bing. 217; Bignold v. Waterhouse, 1 Maule & S. 255.

CHICAGO, R. I. AND P. R. Co.

v.

CONKLIN.

(Advance Case, Kansas. May, 1884.)

Where the duly-authorized agent of a railroad company receives personal property to be transported as baggage, the railroad company must account for such property as baggage, although in strict language it might not be baggage.

Where personal property is received by a railroad company to be transported as baggage, and while it is in the possession of the railroad company, to be so transported, it is lost or stolen, held, that the railroad company is responsible to the owner thereof for its loss.

ERROR from Atchison County.

VALENTINE, J.-This was an action brought before a justice of the peace by William Conklin, against the Chicago, Rock Island and Pacific R. R. Co., to recover damages for the failure on the part of the railroad company to transport or deliver certain personal property delivered by the plaintiff to the defendant to be transported as baggage. Afterwards the case was appealed to the district court, and, after judgment in that court in favor of the plaintiff and against the defendant for $75 and costs, the defendant, as plaintiff in error, brought the case to this court on petition of

error.

The errors complained of are based upon an alleged insufficiency of the plaintiff's bill of particulars. It is claimed-First, that the bill of particulars does not state any cause of action; and, second, that if it does state a cause of action, the cause of action stated is not the one which was proved on the trial of the case in the district court.

The bill of particulars states, in substance, among other things, that the property, which consisted of a certain canvas tent, with poles, ropes, and attachments, was delivered to the agent or baggage-master of the defendant, at Platte City, Missouri, to be shipped and forwarded, as baggage, on the first passenger train of the defendant, and that the defendant afterwards wholly failed and refused to deliver the property to the plaintiff, but kept and retained the same; and the bill of particulars did not state in terms that the plaintiff was or intended to become a passenger on the defendant's railroad, nor that the defendant was guilty of any negligence; and it is because of these failures on the part of the plaintiff's bill of particulars to state that the plaintiff was or intended

to become a passenger, or that the defendant was guilty of negligence, that the defendant below (plaintiff in error) claims that the bill of particulars is insufficient. We think the bill of particulars, however, is sufficient; that it states a cause of action; and that it sufficiently states the cause of action which was proved.

On the trial it was shown that the plaintiff delivered the property to the station agent of the defendant at Platte City, Missouri, to be transported as baggage on the first passenger train of the defendant going to Plattsburgh, Missouri; that the station agent so accepted such property; that the defendant afterwards wholly failed and refused to deliver the property to the plaintiff; and that the plaintiff, at the time, expected and intended to be a passenger on such passenger train, and had purchased a ticket of the defendant for that purpose.

The facts with reference to the delivery of the property to the defendant's station agent, stated more in detail, are as follows: The plaintiff took the property to the defendant's depot at Platte City, Missouri, and delivered it to the station agent at that place, to be transported as baggage on the first passenger train going to Plattsburgh, and the station agent accepted the property as bag. gage, but, being busy at the time, did not give the plaintiff any receipt or check or bill of lading for the same, but directed the plaintiff to leave the property with him until he could prepare a bill of lading for the plaintiff, and the plaintiff did so. Afterwards the plaintiff passed out of the depot for a short time, and in a few minutes afterwards returned, in order to get the bill of lading promised to him by the defendant's station agent; but the property, in the meantime, had been mislaid or stolen, and the station agent refused to give the plaintiff any bill of lading, or to account for the property in any other manner, and neither the station agent nor the defendant has at any time since accounted to the plaintiff for the property. The defendant's station agent knew what the property consisted of and accepted it as baggage, and we think the defendant must now account for it as baggage, although it might not, in strict language, be baggage; and, as the property was lost while in the possession of the defendant, we think the defendant is responsible for its loss.

The judgment of the court below will be affirined.

Baggage. As to what is and what is not baggage, see Texas, etc., Co. v. Capps, and note, infra.

R.

TEXAS, ETC., R. Co.

v.

CAPPS.

(Advance Case, Texas. 1884.)

Although samples carried by a passenger are not personal baggage, yet, if the baggage master, knowing the character of the articles carried, accepts them as baggage, the carrier is estopped to deny that they were baggage in an action for their loss.

Although the liability of a common carrier is terminated after a reasonable time after the arrival of baggage at its place of destination, and although, if the station master at such place consents to hold such baggage for the owner, after such time, the carrier's liability continues, yet, if the station master be ignorant of the fact that it is not personal baggage, the company is not responsible, notwithstanding the former estoppel.

The burden of proof is upon the bailor of goods to show neglect on the part of a warehouseman in an action for the value of goods destroyed by fire.

WILLSON, J.-Appellee instituted this suit in justice's court to recover of appellant $104.50, the alleged value of a trunk and its contents, shipped by him as baggage over appellant's road from Big Sandy to Longview, and destroyed in a fire which burned up appellant's depot at the latter place.

Appellee recovered judgment for the full amount of his claim, and for costs, in justice's court. On appeal by appellant to the county court, and upon a trial de novo, appellee's judgment was reduced to $98 and all costs incurred in the justice's court, etc., and from this judgment appellant has appealed to this court.

1. It appears from the evidence that appellee's trunk contained one sample liquid cooler, nickel-plated; one ventilated beer faucet, one wrench and one lemon squeezer, which were samples being carried for the purpose of effecting sales.

It is contended by appellant, and correctly, that these articles did not constitute baggage. By baggage is understood such articles of personal convenience, or necessity, as are usually carried by passengers for their personal use, and not merchandise or other valuables, although carried in the same trunk of a passenger, but which are not, however, designed for any such use, but for other purposes, such as sale and the like. W. & W.'s Con. Rep., secs. 614, 1254, 1255; Hutchinson on Carriers, secs. 679, 685; Thompson on Carriers of Pass. 510.

2. But appellee replies to this that the trunk and its contents were received by the company as baggage, the agent of the company who received it as such having knowledge at the time of the contents of the trunk, and that therefore the company is estopped