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of these cases are cases where mere delay without other negligence brings the property lost within the operation of the natural cause defined to be an act of God. (1 Am. & Eng. Ency. of Law,-2d ed.—p. 596).
In the case at bar, when the appellant bought his tickets for a passage upon the limited express train and applied to have his baggage checked, there was an implied undertaking on the part of appellee that his baggage should go on the same train on which he took passage; and appellee was bound to send his baggage on the same train on which he went, unless the appellant gave some direction, or did something, or omitted to do something, which authorized appellee to send his baggage by some other train. "The implied undertaking of the passenger carrier as to transporting baggage is, that passenger and baggage shall go together; since all baggage is taken with reference to the wants of a particular journey. Nor ought the carrier, without permission, to send the baggage by later trains or a different route, unless in a strong case of necessity. We need hardly add, that, if, through the carrier's own action, passenger and baggage become separated, the carrier bears the risk." (Schouler on Bailment and Car.-2d ed. -sec. 675; Wilson v. Grand Trunk Railroad Co. 56 Me. 60; Fairfax v. New York Central and Hudson River Railroad Co. 73 N. Y. 167; Toledo, St. Louis and Kansas City Railroad Co. v. Tapp, 6 Ind. App. 304).
It was a question of fact in this case, whether or not appellee was guilty of a violation of its implied undertaking or contract to send the baggage on the same train with appellant; in other words, whether or not appellee was guilty of negligence in not taking proper steps to have the baggage carried by the train on which appellant traveled, and to have it so carried throughout the whole length of the journey; or whether the failure to have the baggage transferred to the baggage car of the limited express train at Pittsburg was in any way the
fault of the appellant. We think that the court erred in not submitting this question of fact to the jury, and in directing a verdict for the defendant without permitting the jury to pass upon such question.
If appellant's trunk had been transferred at Pittsburg to the baggage car attached to the limited express train from Chicago, as was done with the sleeping car in which appellant was traveling, the trunk would have passed through the place of danger before the flood occurred, and would not have been destroyed or lost by reason of the flood. If the appellee was guilty of negligence in failing to put the trunk upon the right train-upon the train where its implied contract with appellant required it to put the trunk-it was guilty of negligence which brought the trunk in direct contact with the force known as an act of God. "If the superior force would have produced the same damage, whether the defendant had been negligent or not, his negligence is not deemed the cause of the injury." (Shearman & Redfield on Negligence,4th ed. sec. 39). But, here, it cannot be said, that the flood would have caused the loss if the trunk had been transferred to the limited express train at Pittsburg.
It is said, however, that the contract of transportation was made at Cincinnati, Ohio; that such a contract and the liabilities of the parties under it are governed by the law of the place where the contract was made; that the contract to transport appellant's trunk, having been made in Ohio, must be governed by the law of Ohio; that, by the law of that State, loss of goods in the possession of a common carrier occurring by reason of an act of God, even though such loss would not have been met with but for unnecessary delay on the part of the carrier, relieves the carrier of liability for the loss; and that the case of Daniels v. Ballentine, 23 Ohio St. 523, which was introduced in evidence, shows what the law of Ohio is upon this subject. If the doctrine of lex loci contractus is applicable to this case, and if the case referred to is the
law of Ohio, we do not think that the contention set up can be maintained, because the doctrine of the Daniels case is not applicable here.
In that case, the action was brought to recover the value of a barge, which defendants contracted to tow by means of a steam tug from Bay City, Michigan, to Buffalo, New York, and which was lost in a storm on Lake Erie. It appears, that, after the voyage was begun, the defendants delayed on the route three days, and then began the voyage again, and, while on such delayed voyage, the barge and tug were overtaken by the storm and lost. The court expressly states, that the defendants in that case were not common carriers, and that, although they had such control of the barge as was necessary to enable them to move it, yet the plaintiffs had possession of it, "and for most purposes it remained in their custody and care." The case, however, presents an instance of mere delay without other negligence. If, in the case at bar, the trunk had been placed upon the right train, and that train had been delayed on the way, and by reason of such delay, had come in contact with the flood, then perhaps there would be a resemblance between this case and the Ohio case. But, here, the delay did not result simply from a halting, or stoppage, in the movement of a train which was carrying the trunk in pursuance of the contract of carriage, but it resulted from negligence in failing to keep an implied contract to carry the trunk upon a particular train, and in violating that contract by carrying the trunk upon a different train from the one agreed upon, that is, upon the assumption that the facts would show no excuse for not keeping the contract. It is like a deviation from the usual course by the master of a vessel, during which a cargo is injured by a storm at sea; in such case the deviation is regarded as a sufficiently proximate cause of the loss to entitle the freighter to recover, as it brings the vessel in contact with the storm, in itself the act of God. (Davis v. Garrett, 6 Bing.
716; 19 Eng. C. L. 212). Here was a deviation from the contract by the use of one agency of transportation not agreed upon, instead of the use of another agency of transportation which was agreed upon, thereby bringing the property in transit in contact with the flood, in itself the act of God. In Davis v. Garrett, supra, it was urged that there was no natural or necessary connection between the wrong of the master in taking the barge out of its proper course and the loss itself, "for that the same loss might have been occasioned by the very same tempest if the barge had proceeded in her direct course," but the court held the objection untenable, and TINDAL, C. J., there said: "The same answer might be attempted to an action against a defendant who had, by mistake, forwarded a parcel by the wrong conveyance, and a loss had thereby ensued; and yet the defendant in that case would undoubtedly be liable."
The language last quoted is precisely applicable to the case at bar, which is not a case of delay in the transportation of goods being carried by the right conveyance, as in Daniels v. Ballentine, supra, but a case of neglect in forwarding a trunk by the wrong conveyance, to-wit: by the day express, instead of the limited express. Of course, in all that is here said, it is not intended to express any opinion as to whether the failure to ship the trunk by the right train at Pittsburg was or was not the fault of the appellee in view of the conflict in the testimony as to the circumstances attending the checking and shipment of the trunk. But, if there was nothing in such circumstances which excuses appellee from its implied obligation to ship the trunk from Pittsburg upon the train carrying appellant eastward from that point, then we think that the property was unnecessarily exposed to the destructive power of the flood in question through the previous negligence or misconduct of appellee, and, consequently, that appellee is not excused. (Williams v. Grant, 16 Conn. 487.) Hence, the case should have been allowed to go to
the jury under the instructions asked by appellant upon this question.
For the reason thus indicated, the judgments of the Appellate Court and of the Superior Court of Cook county are reversed, and the cause is remanded to said Superior Court for further proceedings in accordance with the views herein expressed. Reversed and remanded.
THOMAS B. ELLIS
CHARLOTTE B. HILL et al.
Filed at Ottawa May 12, 1896-Rehearing denied October 13, 1896.
1. TRUSTS—express trust cannot be created by parol. An express trust cannot be created by paroi under the Statute of Frauds, providing that all declarations or creations of trusts or confidences of any lands, tenements or hereditaments shall be manifested or proved by some writing signed by the party.
2. PARTITION-what interest will enable one to maintain bill. One who does not hold the legal title to a share of land cannot, in the absence of any writing showing that the legal title to a share in the land was held in trust for him, maintain a bill for partition.
3. SAME-one claiming through parol agreement to convey cannot maintain bill. One who has assigned a certificate of purchase of land to another as security for his indebtedness, and has made a subsequent parol agreement by which his creditor is to convey half the property to him, cannot maintain a bill for partition, where no specific performance of the contract is asked.
4. CONTRACT when contract to convey is within the Statute of Frauds. A parol agreement by which one who has taken an absolute conveyance of land as security for the indebtedness of another is to retain the legal title to half of the land in satisfaction of such indebtedness and convey to the debtor the other half, is within the Statute of Frauds.
5. PLEADING-prayer for general relief in partition does not cover redemption from mortgage and accounting. Redemption from a mortgage, with an account as to the amount due thereon, cannot be granted under the prayer for general relief in a bill framed as for partition and making a special prayer for partition.