he is liable for its loss. See Minter v. Pacific R. Co., 41 Mo. 503; Glasgo v. New York Cent. R. Co., 36 Barb. (N. Y.) 557; Butler v. Hudson R. R. Co., 3 E. D. Smith (N. Y.), 571; Great Northern R. Co. v. Shepherd, 8 Ex. 30; s. c., 9 Eng. L. & Eq. 369. But it is said that where a passenger carrier receives for a special recompense what he knows is not baggage, the undertaking he assumes is to be regarded as one for carrying such articles as a common carrier; not as a carrier for special baggage, but rather as any other carrier of freight. See Collins v. Boston & M. R. Co., 64 Mass. (10 Cush.) 506; Slowman v. Great Western R. Co.. 67 N. Y. 208; Perley v. New York Cent. R. Co., 65 N. Y. 379; Glasgo v. New York Cent. R. Co., 36 Barb. (N. Y.) 557; Strouss v. Wabash, St. L. & P. R. Co., 17 Fed. Rep. 209.

While articles of merchandise are not baggage, as a general rule, yet when they are so packed that the carrier can see and must know that it is merchandise and not baggage, if it is accepted for carriage he will be liable for its loss the same as though it was proper baggage. Hannibal & St. J. R. Co. v. Swift, 79 U. S. (12 Wall.) 262; bk. 20, L. ed. 423; Great Northern R. Co. v. Shepherd, 8 Ex. 30. But it will not be sufficient to show that there was apparent on the face of the package enough to direct the carrier's attention to it, and to have caused him to make inquiry. To render the carrier liable it must be shown positively that he had actual knowledge that the thing carried was merchandise and not baggage. See Dibble v. Brown, 12 Ga 217; Michigan Cent. R. Co. v. Carrow, 73 Ill. 348; Chicago, R. I. & P. R. Co. v. Collins, 56 Ill. 212; Collins v. Boston & M. R. Co., 64 Mass. (10 Cush.) 506; Mississippi Cent. R. Co. v. Kennedy, 41 Miss. 671; Smith v. Boston & M. R. Co., 44 N. H. 325; Stoneman v. Erie R. Co., 52 N. Y. 429; Richards v. Westcott, 2 Bosw. (N. Y.) 489; Pardee v. Drew, 25 Wend. (N. Y.) 459; Hellman v. Holladay, 1 Woolw. C. C. 565; Macrow v. Great Western R. Co., L. R. 6 Q. B. 612; Hudston v. Midland R. Co., L. R. 4 Q. B. 366; Harris v. Great Western R. Co., I Q. B. Div. 515; Cahill v. London & N. W. R. Co., 10 C. B. N. S. 154; s. c., 13 C. B. N. S. 818 Great Northern R. Co. v. Shepherd, 8 Ex. 30.

Merchandise for Family Use.-Some of the cases hold that in addition to a passenger's own baggage, within the general definition of that term, he may also include articles of clothing and various other articles purchased by him when from home, and travelling without any other member of his family, for use by his family or some member thereof. See Dexter v. Syracuse, B. & N. Y. R. Co., 42 N. Y. 326; s. c., I Am. Rep. 527. Particularly in those cases where the cloth is cut up into patterns for garments. Deffy v. Thompson, 4 E. D. Smith (N. Y.), 170. However, it would seem that a great quantity of goods, such as new shoes or stock for shoes, or cloth for pants, whether wrought into garments or not, is to be considered as merchandise, and not properly baggage in any sense of the term. See Collins v. Boston & M. R. Co., 64 Mass. (10 Cush.) 506. And so also is uncut cloth for dresses purchased, and being carried in like manner by the passenger in his trunk, for one not a member of his family. Dexter v. Syracuse, B. & N. Y. R. Co., 42 N. Y. 326; s. c. Am. Rep., 527.

Merchandise Carried for Presents or Accommodation.-The law declines to treat as baggage that which the passenger takes with him as a present to his friend, or to accommodate third parties, with whom the carrier is not in privity, and from whom such carrier is to get no profit. Nevins v. Bay State Steamboat Co., 4 Bosw. (N. Y.) 425. See Chicago, R. I. & P. R. Co. v. Boyce, 73 Ill. 510; Dexter v. Syracuse, B. & N. Y. R. Co., 42 N. Y. 326. Thus silverware, knives, forks, spoons, and the like are not in any sense proper baggage for the passenger, and when included with it no recovery can be had therefor in case of loss. See Giles v. Fauntleroy, 13 Md. 126; Pettigrew v. Barnum, 11 Md. 434; Mississippi Cent. R. Co.,

v. Kennedy, 41 Miss. 671; Richards v. Westcott, 2 Bosw. (N. Y.) 589; Bell v. Drew, 4 E. D. Smith (N. Y.), 59.

Watches as Baggage.—A single watch and other articles of personal jewelry have been held to be a part of a traveller's proper baggage for which a recovery can be had in case of loss. Doyle v. Kiser, 6 Ind. 242; American Contract Co. v. Cross, 8 Bush (Ky.), 472; Nevins v. Bay State Steamboat Co., 4 Bosw. (N. Y.) 226; McCormick v. Hudson R. R. Co., 4 E. D. Smith (N. Y.), 181; Jones v. Voorheis, 10 Ohio, 145; McGill v. Rowand. 3 Pa. St. 451; Brooke v. Pickwick, 4 Bing. 218. Compare Mintur v. Pacific R. Co., 41 Mo. 503; Bomar v. Maxwell, 9 Humph. (Tenn.) 621. However, it is otherwise as to a quantity of watches, jewelry, or plate apparently designed for sale and traffic, or for presents to friends. Chicago A. L. R. Co. v. Marcus, 38 Ill. 219; Mississippi R. Co. v. Kennedy, 41 Miss. 671; Richards v. Westcott, 2 Bosw. (N. Y.) 589; Bell v. Drew, 4 E. D. Smith (N. Y.), 59.

Money as Baggage. It has been held that a reasonable amount of money included in a passenger's trunk or otherwise secreted in his baggage, bond fide intended for travelling expenses and personal use, is baggage within the meaning of the term (see Hickox v. Naugatuck R. Co., 31 Conn. 281; Illinois Cent. R. Co. v. Copeland, 24 Ill. 332; Davis v. Mich igan R. Co., 22 Ill. 278; Jordan v. Fall River R_Co., 59. Mass. (5 Cush.) 69; Merrill v. Grinnell, 30 N. Y. 594; Merritt v. Earl, 29 N. Y. 115; Mudgett v. Bay State Steamship Co., 1 Daly (N. Y.), 151; Hawkins v. Hoffman, 6 Hill (N. Y.), 586; Reid v. Compagnie Transatlantique. I N. Y. City Ct. 16. Contra, see Hutch. Car. 539, 1), where it does not exceed in amount. what a prudent person would deem proper and necessary for that purpose; but no money beyond that amount. Davis v. Michigan S. & N. I. R. Co., 22 Ill. 278; Doyle v. Kiser, 62 Ind. 242; Yznaga v. Steamboat Richmond, 27 La. An. 90; Whitmore v. Caroline, 11 Mo. 515; Weeks v. New York, N. H. & H. R. Co., 9 Hun (N. Y.), 609; Orange Co. Bank v. Brown, 9 Wend. (N. Y.) 85; First National Bank v. Marietta R., 20 Ohio St. 259; Johnson v. Stone, 11 Humph. (Tenn.) 119), or where it is intended for other purposes. Dunlap v. Steamboat Co., 98 Mass. 371; Phelps v. Railway Co., 19 C. B. N. S. 321. It has been said that “an attempt by a passenger to have an unreasonable amount of money carried among his baggage, as baggage, by concealment therein, or without making the same known to the company, is a fraud upon the company, and no responsibility will attach to it for the loss thereof " (Davis v. Michigan S. & N. I. R. Co., 22 Ill. 278; Chicago & A. R. Co. v. Thompson, 19 Ill. 578; Collins v. Boston & M. R. Co., 64 Mass. (10 Cush.) 506); because in such case it is the duty of the passenger to report the same to the company and to pay such extra charge for its transportation as the company may justly demand. See Davis v. Michigan S. & N. I. R. Co., 22 Ill. 278; Brown v. Camden & A. R. Co., 83 Pa. St. 316; s. c., 15 Am. Ry. Rep. 421.

On the contrary, there are a number of well-considered cases which hold that a passenger will not be allowed to carry money as baggage, even to the amount which is reasonably necessary for travelling expenses and personal use. See Illinois C. R. Co. v. Copeland, 24 Ill. 332; Doyle v. Kiser, 6 Ind. 242; Del Valle v. Steamer Richmond, 27 La. An. 90; Simon v. Miller, 7 La. An. 360; M. & T. Bank v. Gordon, 5 La An. 64; Weed v. Saratoga & S. R. Co., 19 Wend. (N. Y.) 534; Orange Co, Bank v. Brown, 9 Wend. (N. Y.) 85; Duffy v. Thompson, 4 E. D. Smith, 178; Grant 7. Newton, 1 E. D. Smith, 95; Johnson v. Stone, 11 Humph. (Tenn.) 419; Bomar v. Maxwell, 9 Humph. (Tenn.) 621.

Money which is not taken bona fide to pay passage and current expenses can in no instance be allowed for as baggage when lost, such as money carried by an attorney for his client to meet the contingencies of a law

suit (Phelps v. London N. W. R. Co., 19 C. B. N. S. 321), or money belonging to a stranger instead of the passenger, where the owner is not travelling with it. Dunlap v. International Steamboat Co., 98 Mass. 371. And the same is true of money which is intended purely for trade, business, investments, or transportation, and not for the passenger's own use. See, generally, Pfister v. Central Pac. R. Co., 27 Am. & Eng. R. R. Cas. 246; Missouri Pac. R. Co. v. York, note, 18, Ib. 627.

Jewelry as Baggage-Notice.-It has been held that baggage includes valuable jewelry and miniatures carried by a lady as such (see Nevins v. Bay State Steamboat Co., 4 Bosw. (N. Y.) 286; McCormick v. Hudson R. R. C., 4 E. D. Smith (N. Y.), 181; Magill v. Rowan, 3 Pa. St. 452), but where jewelry and other articles are not intended for use by the passenger but are carried as a gift for friends, the rule is otherwise. Nevins v. Bay State Steamboat Co., 4 Bosw. (N. Y.) 286.

Where the carrier has notice and there is a loss the passenger may recover. Thus it has been held by the United States circuit court for the West District of Missouri in the case of Jacobs v. Tutt, 33 Fed Rep. 412, that where, in an action against a railroad company to recover the value of a trunk and contents, which were stolen from the company, and it was shown that it was a trunk of a jewelry salesman, containing his stock in trade; that the agent who checked it knew of the fact; and that the plaintiff made no effort at concealment, the company will be liable as for loss of ordinary baggage. The court say: The defendant's station agent at Wakenda having checked the trunk in question as baggage, his knowledge that it contained jewelry, and without any concealment practised by the plaintiff as to the contents of said trunk or the value of the same, the plaintiff is not estopped from demanding full compensation for the trunk and its contents as though the contents were in fact ordinary baggage and not merchandise. New York Cent. & H. R. R. Co. v. Fraloff, 100 U. S. (10 Otto), 27, 28; bk. 25 L. ed. 531.

Sample Trunk as Baggage.-Trunks, valises, carpet-bags, chests, and the like, with the common travelling contents, are always ordinary baggage, but when filled with samples of merchandise, which the passenger is taking with him for the purpose of effecting sales, they are not baggage. Dibble v. Brown, 12 Ga. 217; Chicago, etc., R. Co. v. Marcus, 30 Ill. 217; Alling v. Boston & A. R. Co., 126 Mass. 121; Pennsylvania Co. v. Miller & Co., 35 Ohio St. 541; Strouss v. Wabash, St. L. & P. R. Co., 17 Fed. Rep. 209; Cahill v. London & N. W. R. Co., 13 C. B. N. S. 818. Thus where a trunk containing valuable merchandise and nothing else, was taken on board a steamboat and deposited with ordinary baggage as such, and afterward lost, it was held that the carrier was not liable therefor. Pardee v. Drew, 25 Wend. (N. Y.) 459.

Merchandise Taken into Car by Passenger.-Where a passenger seeking to evade the rules of a railway which forbids merchandise to be carried by passengers without the payment of extra charges therefor, carries merchandise with him to his seat in the passenger coach, and a servant of the company, on the journey, has it taken from the passenger coach, whither he had brought it, and placed in the baggage car, the passenger will not be permitted to recover for its loss. Belfast R. Co. v. Keys. 9 H. L. 556. See Michigan Cent. R. Co. v. Carrow, 73 Ill. 348; Flint & P. M. R. Co. v. Wier, 37 Mich. III; Smith v. Boston & M. R. Co., 44 N. H. 325; Cahill v. London & N. W. R. Co., 10 C. B. N. S. 154; s. c., 13 C. B. N. S. 818.

Refusal to Carry. It was recently held by the supreme court_of_appeals of Virginia in the case of Norfolk & W. R. Co. v. Irvine, 5 S. E. Rep. 532, that a rule by a railroad company, that only baggage containing passengers' wearing apparel should be transported on passenger trains, is a reasonable rule; and one who was in the habit of transporting his ped

dler's wares as baggage, who refused to state that his trunk offered for transportation contained nothing but wearing apparel, has no cause of action for damages for refusal to carry such trunk. The court say that "the company can not be required to transport merchandise or other freight not baggage on its passenger trains which have not been equipped for such use; and the plaintiff having exacted such service of these trains as a travelling merchant, if he had ceased such employment and business, it was a simple and easy act for him to so certify. A carrier of passengers is only required to carry baggage under a certain weight, and may by law, or otherwise, restrict the amount to be carried for any one passenger so the limit does not rest below that fixed by the statute, and may also refuse to carry anything as luggage except the passenger's ordinary luggage. Phelps v. London & N. W. R. Co., 19 C. B. N. S. 321. And a railroad company may refuse to carry merchandise as personal luggage or anything except what is useful and necessary or convenient for the passenger's personal comfort and convenience. Dibble 7. Brown, 12 Ga. 217; Doyle v. Kiser, 6 Ind. 242; Stimson v. Connecticut R. Co., 98 Mass. 83; Collins v. Boston & M. R. Co., 64 Mass. (10 Cush.) 506; Smith v. Boston & M. R. Co., 44 N. H. 325; Merrill v. Grinnell, 30 N. Y. 594; Hawkins v. Hoffman, 6 Hill (N. Y.), 586; The Ionie, 6 Blatchf. C. C. 538. It has been decided in a multitude of cases that a passenger cannot carry merchandise in his baggage to avoid the payment of freight upon it and recover for its loss against the company; and this rule extends to samples carried by a travelling salesman while upon the road. Hutchings v. Western R. Co., 25 Ga. 61; Dibble v. Brown, 12 Ga. 217; Michigan Cent. R. Co. v. Carrow, 73 Ill. 348; Blumantle v. Fitch, 127 Mass. 322; s. c., 20 Alb. L. J. 354; Collins v. Boston & M. R. Co., 64 Mass. (10 Cush.) 506; Mississippi Cent. R. Co. v. Kennedy, 41 Miss. 671; Ross v. Missouri R. Co., 4 Mo. App. 583; Pardee 7. Drew, 25 Wend. (N. Y.) 459; Smith v. Boston R. Co., 3 E. D. Smith (N. Y.), 59; Beckman v. Shouse, 5 Rawle (Pa.). 179; Lee v. Grand Trunk R. Co., 36 Up. Can. Q. B. 350; Cahill v. London & N. W. R. Co., 10 C. B. N. S. 154; s. c., 7 Jur. 1164: 30 L. J. C. P. 289, 9 Week. Rep. 653; 4 L. T. N. S. 246 (aff'd on appeal 13 C. B. N. S. 818; 8 Jur. N. S. 1063; 31 L. J. C. P. 271; 10 Week. Rep. 391); Great Northern R. Co. v. Shepherd, 8 Exch. 30; s. c., 7 Eng. R. Cas. 31; 21 L. J. Ex. 286; Belfast & B. R. Co. v. Keys, 9 H. L. Cas. 556; s. c., 8 Jur. 367; 9 Week. Rep. 793'; 4 L. T. N. S. 841.

Penalty for Refusal to Carry.--In the case of Norfolk & W. R. Co. v. Irvine, 5 S. E. Rep. 532, the supreme court of appeals of Virginia held that under a statute providing that if a statute giving a penalty did not expressly mention that such penalty should be in lieu of damages, a party injured might recover the actual amount of damages suffered by reason of the breach of such statute, and that a plaintiff, who has been been injured by a failure of a railroad company to transport his baggage, is not limited to a recovery of the penaity prescribed for such failure by Code Va. c. 61, 17. but may recover the amount of actual damages. See Telegraph Co. v. Reynolds, 77 Va. 178; s. c., 5 Am. & Eng. Corp. Cas. 182.

SOUTHERN KANSAS R. Co.

ย.

HINSDALE.

(Kansas Supreme Court. February 11, 1888.)

Passenger-Freight Trains-Ticket Regulations. A railway company has the power to make and enforce a rule or regulation requiring persons desiring to ride upon its freight trains to provide themselves with tickets; but in all such cases the company must furnish convenient facilities to the public for the purchase of tickets, by keeping open the ticket office a reasonable time in advance of the hour fixed by its time-table for the departure of the trains.

Same-Notice-Failure to Procure Ticket-Ejection.-If the conductor or brakeman of a freight train repairs to the caboose of the train after all the passengers are aboard, and announces loud enough for all the passengers to hear, that it is necessary for all persons who desire to ride upon the train to procure tickets before the train starts, and ample time and opportunity is given thereafter for persons to procure tickets, then sufficient publicity is given to the passengers upon the train of the rule of the company, and the right of expulsion for non-compliance with this regulation by a person may be exercised, after leaving the station, at any suitable place.

Same Ejection.-Where a person takes passage upon a freight train of a railway company without first procuring a ticket, as required by a rule of the company, to entitle him to ride upon that kind of a train, and the conductor has no right to accept any fare or money, the conductor may require such person to leave the train. In such a case, after the train is stopped, and the person is notified by the conductor to get off, he should leave.

Same Ejection-Abusive Language. Where a conductor in ejecting a person from a railroad train uses insulting or abusive language in ejecting him, such party may recover damages therefore on account of the injury to his feelings; but he cannot, in an action for damages for his expulsion, also recover damages because the words used by the conductor tended to bring him into ignominy or disgrace.

ERROR to District Court, Allen County; L. STILLWELL, Judge.

This case was tried to a jury at the January term, 1886, of the district court of Allen county. There was a verdict and judgment for the defendant in error for $525. Special questions of fact were submitted to the jury, and answers returned, as follows: " Question 1. Did the defendant, at the time of the injuries complained of in plaintiff's petition, have any

66