came into the possession of the connecting road, this evidence will be sufficient to render it responsible for its safe delivery.'

It is competent for either of several connecting lines to contract with a passenger over its line, for the transportation of himself and baggage over the whole distance; or that its liability should be confined to loss or damage occurring on its own road; but the collection by one of the contracting carriers, of fare in advance for the entire journey, without limitation as to risk, renders it liable on receipt of the baggage, to transport it safely to the end of the route and then deliver it, on demand, to the passenger. In case of the receipt by a railway company of a passenger's check for baggage, which has not arrived by another road, giving its own check in exchange therefor, its act in subsequently surrendering the passenger's first check will presumptively charge it with the receipt of the baggage from the company to which it surrenders the check. Where baggage has been delivered to be transferred over connecting lines, its delivery to one of such lines must be shown. The tracing of the property into the possession of one carrier is sufficient to render it liable in the absence of proof on its part of delivery to the next carrier. Where the last of several connecting roads, while denying its liability for lost baggage, makes a deduction upon the travelers' return fare over its roads in consideration of a release of all claims against it for the alleged loss,-neither the payment nor the release can affect the liability of the initial road to answer to the traveler.*

Where a suit was instituted against the terminal road of three uniting roads for baggage lost at some unknown point, the liability was sustained on the ground that the check delivered by the first road was the check of the terminal road, as well as the other companies'. A passenger traveling over connecting lines, who, upon arriving at his destination, finds that his trunk has been broken open and robbed, may sue either the company issuing the

も

'Atchison, T. & S. F. R. Co. v. Brewer, 20 Kan. 669.

2 Baltimore & O. R. Co. v. Campbell, 36 Ohio St. 647; Louisville & N. R. Co. v. Weaver, 9 Lea, 38; Croft v. Baltimore & O. R. Co. 1 McArthur, 492.

'Chicago, R. I. & P. R. Co. v. Clayton, 78 Ill. 616.

Kent v. Midland R. Co. L. R. 10 Q. B. 1.

'Louisville & N. R. Co. v. Weaver, 9 Lea, 38.

Texas & P. R. Co. v. Fort (Tex.) 9 Am. & Eng. R. Cas. 392.

check, or the one delivering the baggage in that condition.' Where goods are found broken, in the possession of a connecting carrier, the negligence is prima facie chargeable to it, and it is under the burden of proving that the loss happened before the goods reached it.'

A recovery was permitted from the first of connecting roads for loss of baggage, although there were three connecting roads between the point of embarkation and destination, and although the first company had safely delivered the baggage to the connecting road. The Georgia Code, section 2084, declaring the last of a connecting line over which goods are shipped, which receives them in good order, is liable to the consignee, does not apply to the baggage of a passenger, checked and accompanying him on his passage.

Under the English decisions, where, by arrangements between three companies, tickets are issued for the entire distance and the fares are divided between them according to the mileage traveled on each line, the purchase of a through ticket renders the first company liable for the loss of baggage, and an action can not be maintained against either of the other carriers."

§ 159. Lien on Baggage for Charges.

The carrier has a lien upon the baggage of the passenger which is in its possession for the fare legally chargeable. But inasinuch as the fare due from the passenger to the carrier is a mere debt, which the carrier has no means of enforcing, outside of legal process, except by his lien upon the baggage, it will be liable if the conductor in seizing or attempting to seize articles of personal apparel belonging to a passenger for the payment of fare, commits an assault upon the passenger."

A carrier holding a passenger's baggage under its lien for fare, will be answerable for any articles taken from the baggage.'

'Wolff v. Central R. Co. 68 Ga. 653.

Lin v. Terre Haute & 1. R. Co. 10 Mo. App. 125.

Hawley v. Screven, 62 Ga. 347.

Wolff v. Central R. Co. 68 Ga. 653.

5 Mytton v. Midland R. Co. 4 Hurlst. & N. 615. Ramsden v. Boston & A. R. Co. 104 Mass. 117. 'South Western R. Co. v. Bently, 51 Ga. 311.

Where a passenger surrendering his ticket at a point short of his destination, permits his baggage to be carried to a point for which he originally took passage, the baggage may be held under the lien of the carrier for an additional charge, upon the passenger resuming his journey and refusing to pay his fare.' Where the carrier receives the baggage of one who does not go by the same train, it is entitled to demand compensation for the transportation of freight, and no higher liability is then assumed than for this character of goods."

Although trunks carried by an express company and retained in their office for a reasonable time, were sold, under order of the court, to pay charges, this will not relieve the carrier from liability for making such sale with the trunks locked and unopened, and the contents not exposed.'

§ 160. Action for Loss of Baggage.

Contract is not the form of action for loss of baggage, but the foundation of the right is the carrier's breach of the legal duty." An action must be in tort if the baggage was carried free, and the obligation of the carrier is to no greater diligence than any other gratuitous service."

The husband is the proper plaintiff in an action for loss of the personal effects of the wife, in the absence of an express gift thereof to the wife. The husband may recover for baggage consisting of articles which had been previously used by him, his wife and child, although he was not personally present on the trip.

Owing to the difficulty of obtaining proof of the value of the contents of trunks lost by the negligence of the carrier, it has long been recognized under the common law rule, excluding the testimony of parties interested, that an exception existed in favor of the passenger. This rule, however, is only applied in cases of 'Roberts v. Koehler, 30 Fed. Rep. 94.

'Graffam v. Boston & M. R. Co. 67 Me. 234. Adams Exp. Co. v. Schlessinger, 75 Pa. 246. Catlin v. Adirondack Co. 20 Hun, 19.

Flint & P. M. R. Co. v. Weir, 37 Mich. 111.

'Curtis v. Delaware, L. & W. R. Co. 74 N. Y. 116.

'Parmelee v. McNulty, 19 Ill. 556; Davis v. Michigan S. & N. 1. R. Co. 22 Ill. 278.

necessity and where other evidence is not obtainable; and in Pennsylvania the rule is, that the liability of the carrier must first be established for the loss. This exception has been carried so far as to permit the wife, who had packed the trunks of herself and husband, to testify as to their contents and value.' Indeed, in extreme cases, the affidavit of the party has been admitted as proof of the value. But in Maine and Michigan, under the common law rule, the testimony of the passenger is not admitted as to the contents and value of a trunk.'

McGill v. Rowand, 3 Pa. 451.

Herman v. Drinkwater, 1 Me. 27.

'Snow v. Eastern R. Co. 12 Met. 44; Wright v. Caldwell, 3 Mich. 51.

CHAPTER XXVIII.

RECEIVERS ACTING AS CARRIERS.

161. Liability of Receivers-Distinction between Statutory Actions for Death and Common Law Actions for Negligence.

§ 162. Liability of Receiver for Personal Injuries or Death. § 163. Apparent Conflict of Authorities as to Liability of Receivers. § 164. Personal Liability of Receivers.

§ 165. Permission to Sue Receiver-Liability under Foreign Statute.

§ 161. Liability of Receivers-Distinction between

Actions.

The action for causing death being statutory, the distinction between that and a common law action is of course apparent. In most of the states the language used in the statute is such as to permit a recovery, where the road is in the hands of a receiver at the date of the injury. An action was brought by an administrator against receivers to recover damages for an injury resulting in the death of his intestate, which, it was alleged, occurred through the negligence of the agents of the receivers, and they were held officially liable. The action was brought under a statute of the state of Ohio, which gave right of action in such cases against any person or corporation through whose wrongful act, neglect or fault death resulted, if the injury would have given cause of action to deceased had he lived. The receivers were persons who, under the Act, might be made officially to pay damages, for their liability was not made to depend upon their relation to property. Under such a statute they were liable, as receivers are liable, for injuries not resulting in death when caused by negligence in the business confided to their care.'

In another case the action was brought against a receiver of a railway company's property for an injury resulting in death, based 'Murphy v. Holbrook, 20 Ohio St. 137.