LOUISVILLE & N. R. CO. v. CHILDERS

(98 South. 319) (8 Div. 15.) LOUISVILLE & N. R. CO. v. CHILDERS. (Court of Appeals of Alabama. Oct. 30, 1923. Rehearing Denied Dec. 4, 1923.) I. Carriers <§=^408(6) — Plaintiff entitled to affirmative charge for loss of baggage upon production of check. In a suit' to recover the value of lost bag;gage, plaintiff was entitled to the affirmative [charge upon production in evidence of the •(¡heck issued by defendant carrier in exchange ■for the check of the connecting carrier, though there was no other proof that plaintiff’s baggage .actually came into possession of defendant. .2. Carriers <&wkey;>408(4) — Delivery and possession of check prima facie evidence of delivery to carrier. The delivery of a check for baggage and its possession by plaintiff is prima facie evidence ,of delivery of the baggage to carrier. 3. Appeal and error <&wkey;I078(5) — Point waived, where not insisted upon in brief. Where appellant made no insistence in his brief that the verdict was excessive, that point was waived. 4. Appeal and error, <&wkey;843( I) — Other errors not considered, where plaintiff entitled to affirmative charge. Where plaintiff was entitled to the affirmative charge on the evidence, it was unnecessary to consider the other assignments of error. <§&wkey;For other cases sec same topic and KEY-NUMBER ij) ail Key-Numbered Digests and Indexes Appeal from Circuit Court, Morgan County; Robert C. Brickell, Judge. Action for. damages for loss of baggage by J. W. Childers against tbe Louisville & Nashville- Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed. Eyster & Eyster, of Albany, for appellant. Unless there is a delivery, there can be no liability on the part of the carrier with respect to baggage. Possession of the baggage check by the passenger is not conclusive upon the carrier. 4 Elliott on R. R. (2d Ed.) pp. 608, 612; M. & O. R. R^ v. Hopkins, 41 Ala. 486, 94 Am. .Dec. 607; A. G. S. v. Mt. Vernon Co., 84 Ala: 176, 4 South. 356; C. of Ga. v. Sigma ^br. Co., 170 Ala. 633, 54 South, 205, Ann. Cas. 1912D, 965. Sample & Kilpatrick, of Hartsells, for ap-pellee. Possession of the baggage check is prima facie evidence that the carrier has received and has not delivered the baggage, and the passenger need not prove actual delivery until the carrier.rebuts the constructive delivery evidenced by the check. 10 C. J. 1199; Montgomery, etc., Co. v. Culver, 75'Ala. 587, 51 Am. Rep. 483; So. Ry. v. Foster, 7 Ala. App. 487, 60 South. 993. [MAJORITY — SAMFORD. J.] SAMFORD. J. The plaintiff bought tick- j ets at Texarkana and chocked five pieces of I , , t-, j. * ¡ baggage thereon to Decatur. Ala. At Decatur i i ,' , . ,. , j. ,. TT j. it 4. he bought tickets to Hartsells, Ala., gave to j ’ ceived in exchange five checks for baggage from Decatur to Hartsells. Plaintiff did not. actually see his baggage in Decatur or know whether or not it had arrived at the ( time lie received the checks from defend- j ant’s agent. At Harfsells plaintiff present- ¡ ed his five checks to defendant’s agents, but | only received four pieces of baggage. The ' fifth piece of baggage has never been de- ¡ livered, and was shown by the evidence to | consist of wearing apparel' of the value of ! $S0. The evidence was not in dispute. The' Judgment was for $100. i The record presents but one ques- j tion necessary to £j decision. The delivery of a check for baggage and its possession ! by the plaintiff is prima facie evidence of ¡ delivery of the baggage to the defendant.; Hickox v. Naugatick R. R. Co., 31 Conn, 281, 83 Am. Dec. 143. There being no proof j as to whether N.the plaintiffs baggage came ' into the possession of defendant.’ other than the check issued by defendant in exchange for the heck of the connecting previous carrier, it will be presumed that the baggage was delivered to defendant. Graham, etc., Transp. Co. v. Young, 117 Ill. App. 237; Chicago, etc., R. Co. v. Steear, 53 Neb. 95, 73 N. W. 466; St. Louis, etc., R. Co. v Hawkins, 39 Ill. App. 400; Dill v. S. C. R. Co., 7 Rich. (S. C.) 158, 62 Am. Dec. 407; Ex parte L. & N. R. R. Co., 176 Ala. 631, 58 South. 315. While the issuance of the check for'baggage and its possession by the passenger is not conclusive upon the carrier, yet where this is shown and nothing is shown to the contrary, in a suit to recover the value of the lost baggage the plaintiff would be entitled to the affirmative charge. No insistence is made in brief of appellant’s counsel that the verdict of the jury is excessive, and therefore that point is waived. The plaintiff being entitled to the affirmative charge on the evidence, other assignments of error are not considered. Let the judgment be affirmed. Affirmed.