Mary O. H. Stoneman, Respondent, v. The Erie Railway Company, Appellant

Mary O. H. Stoneman, Respondent, v. The Erie Railway Company, Appellant. (Submitted February 27, 1873; decided April 1, 1873.) A married woman, domiciled in another State, and by the laws thereof holding property to her separate use, in seeking a remedy to recover for loss or injury thereto in this State, is governed by the laws thereof, and may bring an action in her own name. Where a carrier of passengers, in addition to passage money, demands and receives from a passenger compensation as freight for the transportation ' of packages containing merchandise and baggage, in the absence of evidence of fraud or concealment on the part of the passenger as to the contents of the packages, such carrier, in case of loss, is liable for the merchandise, as well as baggage. If a carrier knows or has notice of the character of goods taken as baggage, and still undertakes to transport them, he is liable for their loss, although they are not traveler’s baggage. (Peckham, J.) Appeal from judgment of the General Term of the Superior Court of the city of Buffalo, affirming a judgment entered upon the decision of the court at Special Term upon trial without a jury. This action was brought to recover damages for the loss of three packages and contents, delivered to defendant at Hew York for transportation to Dunkirk. The packages were destroyed enroute on the occasion of the “ Mast Hope” disaster. The packages, in addition to plaintiff’s personal baggage, contained articles of merchandise. Further facts appear in the opinion. ■ The court held that plaintiff was entitled to recover for all the property destroyed, and gave judgment accordingly. John Ganson for the appellant. Plaintiff being a nonresident married woman, cannot claim the benefit of the married women’s act of this State. (S. L. 1860, chap. 90, § 1; Holmes v. Broughton, 10 Wend., 75; Starr v. Peck, 1 Hill, 270; Savage v. O'Neill, 42 Barb., 374; Conner v. Elliott, 18 How. [U. S.], 591.) Plaintiff can only recover for her “ wardrobe.” (Rawson v. Penn. R. R. Co., 48 N. Y., 212.) The statute of Maryland does not aid plaintiff in this action. (Schindel v. Schindel, 12 Md., 108,249 ; Weems v. Weems, 19 id., 345.) Plaintiff’s trunks were delivered to defendant as baggage, and she was not entitled to a judgment for the merchandise. (Pardee v. Drew, 25 Wend., 459, 462; Orange Co. Bk. v. Brown, 9, id., 85 ; Hawkins v. Hoffman, 6 Hill, 586; Gt. North. R. Co. v. Shepperd, 8 Exch., 30; Belfast R. Co. v. Keyes, 9 H. of L. Cas., 556; Cahill v. Bond. and N. W. R. Co., 10 C. B. [N. S.], 154,100 Eng. C. L.; S. C., 13 C. B..[N. S.], 818, 106 Eng. C. L.; Macrow v. G. W. R. Co., 6 Q. B., 612, L. R.; Dexter v. Syr., B. and N. Y. R. R. Co., 42 N. Y., 326.) The fact that extra compen- ' sation was paid for the baggage does not change the rights of the parties. (Middleton v. Fowler, 1 Salk., 282; Nevins v. Bay State Steambt. Co., 4 Bosw., 225, 237; Belfast R. Co. v. Keyes, 9 H. of L. Gas., 556, 572-576; Cahill v. Lond, and N. W. R. Co., 10 C. B. [N. S.], 154; Pardee v. Brew, 25 Wend., 459,462.) ° Delavan F. Clarh for the respondent. Plaintiff is entitled to the benefit of the laws of this State. (Story’s Conflict of Laws, § 556.) The suit being in respect to plaintiff’s separate property, was properly brought in her name alone. (Code, §§ 111, 114; Laws of 1860, 158, § 7; Laws 1862, 344, § 7; § 2, art. 45, Md. Code; Buchanan v. Turner, 21 Md., 6; Weems v. Weems, 19 id., 344; Wolf v. Security F. Ins. Co., 39 N. Y., 51.) Defendant’s liability is not restricted to the loss of the personal baggage only. (Orange Co. Bk. v. Brown, 9 Wend., 115; Sewal v. Allen, 6 id., 349.) Defendant having received freight on the personal baggage and merchandise, became an insurer of the whole, and is liable for the loss of all. (Hawkins v. Hoffman, 6 Hill, 589; Smith v. B. and M. R. R. Co., 44 N. H., 325; 2 Hilliard on Cont., 371, and cases cited.) [MAJORITY — Peckham, J.] Peckham, J. From the facts found by the judge at the trial, it appears that the articles for which this action is brought were chiefly owned by the plaintiff prior to her marriage in 1861, or were the proceeds of that property, except the presents made to plaintiff at the time of her marriage and prior thereto, or possibly some of it (how much, if any, except the rattle and cup, does not appear) afterward. It further appears that, at and from the time of said marriage to the trial, the State of Maryland had been the matrimonial domicile of the plaintiff, and that, by the laws of that State at and since the marriage, a married woman in that State holds the personal property which, belonged to her at her marriage or acquired or received by her after marriage, as ■ feme sole, and to her separate use. It was held to have been the law of Maryland, prior to the adoption of their Code, that when property is given to a feme covert to her separate use simply, without restraining her power of disposing of it or prescribing the mode in which that power is to be exercised, she may act in the disposition of it as if she were a feme sole; in fact, the statute did not. apply to such cases. (Buchanan v. Turner, 26 Md. R., 1.) Such was the condition of this property, with a trifling exception, as to which no separate question was raised. But by the Code of Maryland, adopted in 1860 and prior to plaintiff’s marriage, “the property, real and personal, belonging to her at her marriage or acquired or received thereafter by purchase, gift,” etc., “she shall hold for-her separate use, with power of devising the same as fully as if she were a feme sole.” If not devised, the husband takes a certain share or all of the personal property, depending upon whether she leaves children or not, and the title shall vest in him accordingly. (Maryland Code, p. 345, art. 45, §§ 1 and 2.) She is also authorized by that Code to sue for the recovery, security or protection of her property, as fully as if she were a feme sole. (See § 4; Buchanan v. Turner, supra) The cases cited by appellant’s counsel from 12 and 19 Maryland Reports do not apply to the Code as enacted in 1860. The counsel insists that plaintiff cannot have the benefit of our statutes in this State for protecting the rights of women “married in this State.” (Laws of 1860, p. 157, § 1.) But the plaintiff does not rely upon those statutes for her right, for her title to the property; but she comes here merely for a remedy; as to that, she is governed by the lex loei, and she must sue in the mode and form prescribed by our laws.(Story Confl. Laws, § 556.) She clearly had sufficient title in the goods lost to bring the action in her own name under our-Code. They were her “ separate property,” within the mean-* of that statute. (Code, § 114.) The other question in the case is whether the plaintiff was entitled to recover for anything beyond her legitimate per-1 sonal baggage. The court at the trial held that the baggage-was limited to the articles designated as the plaintiff’s wardrobe, and that the other articles were merchandise and not personal baggage; but the recovery was had upon the ground' that its transportation was paid for as merchandise, not as baggage. The finding is, that “ she delivered seven packages of goods and wearing apparel; that the defendant, in addition to the money for her passage, then demanded of her payment of ten dollars as freight for the carriage of said packages over its road, which plaintiff paid; that defendant thereupon received said packages and contents and promised to transport them,” etc. There is no exception to this finding. There is no finding and no request to find that the defendant received the packages as extra baggage or received any pay for their transportation as extra baggage. There is no finding or proof that she in any manner concealed the contents of the packages from the defendant, or that she in any manner represented them as containing only her personal baggage; and the finding is that the defendant transported them as merchandise, not as baggage, extra or Otherwise. It has become an axiom, that he who alleges error must affirmatively establish it. Ho presumption is indulged to reverse a judgment. Under these circumstances, the question of the extent of plaintiff’s baggage does not arise, and I think the defendant must pay for the whole property lost. (See Hannibal Railroad v. Swift, 13 Wall., 262.) It is well settled that, in ordinary cases of transportation of freight, the carrier is responsible for a parcel, though ignorant of its contents, no matter how valuable, unless he made a special acceptance. This rule has some exceptions, and is qualified by the condition that the owner should have been guilty of no fraud or imposition in respect to the carrier, as by concealing the value or nature of the parcel, nor should he delude the carrier by his own carelessness in treating the parcel as a thing of no value. (2 Kent, 11th ed., 603; Orange Co. Bk. v. Brown, 9 Wend., at 115.) There was no such qualification in the case at bar. I think it safe to say that, if the carrier knew or had notice of the character of the goods taken as baggage and still undertook to transport them, he is liable for their loss, although they are not traveler’s baggage. (2 Red. on Railways, 149, 151, note 5, and cases.) But as I do not regard the question argued in the appellant’s brief as to the liability for goods assumed to be transported as extra baggage and paid for as such, as presented in the case, it is not necessary to consider it. The judgment must be affirmed. All concur. Judgment .affirmed.