the contract between plaintiff and the appellant was an Illinois one, and governed by the law of that state, which we must take to be the common law, as there was no proof on the subject. The Otis Co. v. R. R., 112 Mo. 622, 20 S. W. 676; Morrissey v. Wiggins Ferry Co., 47 Mo. 521; Goldsmith v. R. R., 12 Mo. App. 479. The American common law is that when a carrier receives goods for transportation to a destination beyond the end of its line its common law liability terminates with delivery of the property to the succeeding carrier for further transportation, unless it binds itself by an express or implied contract for the whole distance. Such a contract may be deduced from the circumstances of the particular transaction or from the usage of the carrier. Coates v. Express Co., 45 Mo. 238; Snider v. Express Co., 63 Mo. 376. No usage followed by appellant in its business with regard to carrying beyond its line was shown. The entire evidence is that plaintiff was sold a ticket to Union Station, St. Louis, her baggage checked to the same place, and, as far as appears, both she and it were deposited by appellant at that very destination. There is no proof, even, that appellant's line ends elsewhere. This state of facts justified the trial court in submitting to the jury the issue of whether the contract of carriage between plaintiff and appellant was a through one and would have justified a direction to find it was a through one. If the appellant agreed to transport plaintiff and her property to destination, it was responsible throughout the journey, and any other carriers who may have assisted in performing the contract must be treated as appellant's agents. Hutchinson, Carriers (2d Ed.) § 145, and citations; Halliday v. R. R., 74 Mo. 159, 41 Am. Rep. 309; Shewalter v. R. R., 84 Mo. App. 589. As to plaintiff's trunk and its contents, appellant was under the responsibility of a carrier of freight, was an insurer against every loss except one due to the act of God or the public enemy, no special restriction of liability having been shown. Aiken v. R. R., 80 Mo. App. 8. As the initial and contracting carrier, appellant remained responsible for the loss of the property at any point of the transit. In the absence of a special agreement, confining appellant's responsibility to part of the journey, its contract necessarily imposed responsibility on it for the entire journey. Now it is certain from the evidence that the trunk was received by the appellant at Cairo, Ill., in good condition, and that the articles of jewelry plaintiff had packed in it were gone when it was restored to her at destination. Proof of those facts made a prima facie case in her favor. Davis v. R. R., 89 Mo. 340, 1 S. W. 327. The position is wholly untenable that showing the trunk was received from the Terminal Association at destination had a tendency to overcome the prima facie case; for such proof failed totally to establish per

formance by appellant of its agreement for through carriage. What the appellant was bound to prove to exonerate itself from liability was that the trunk was lost through the act of God or the public enemy, or that, by virtue of its contract with the plaintiff, its responsibility terminated and some one else's began at an intermediate point on the route. No evidence was offered in support of either of these exceptions to liability. It may be the trunk was carried over part of the route by the Terminal Association, and that carriage by the association was contemplated from the first. If so, the presumption might arise, in an action to recover the value of the lost contents from the association, that the trunk was delivered to it by appellant in good order. That proposition is not in this case. It is apparent that the articles in controversy were lost either by theft or negligence while appellant was responsible for them, and it must answer to the plaintiff for their value.

A carrier is responsible as an insurer of a passenger's baggage, but only to the extent that the property shipped as baggage comes within that designation. We mean in the absence of a particular agreement; for a carrier may undertake, if it pleases, to carry anything as baggage. But when there is no special undertaking, and the carrier is ignorant of the contents of a trunk or valise, its common-law liability will embrace none of the contents that is not baggage in a technical sense. Now, it is contended by the appellant that the property in controversy was not baggage, and therefore it is liable. not as an insurer, but only for negligence. By a sound instruction the court left it to the jury to decide whether the articles were baggage or not. The plaintiff swore they were articles of personal apparel, which she was in the habit of wearing and carried for that purpose. It will be seen at a glance that they were things appropriate to the apparel of a woman, as all of them were pieces of jewelry such as are commonly worn on the person for use or ornament. There were two watches, it is true; but one of them was a black gun metal watch, which plaintiff wore while in mourning. We might almost pronounce the articles to be baggage as a matter of law, for plainly they were personal apparel. Hutchinson, Carriers, § 682. The point of criticism in this connection is that no evidence was adduced, to show plaintiff's social station, though the question of what may be considered as the baggage of a traveler depends, in some measure, on his condition in life. That is to say, if he is a person of opulence and fashion many articles might be found to have been carried by him as baggage which would not be if contained in the trunk of a person of no fortune and humble life. This point was matter of defense, and no testimony bearing on it was given or any instruction asked. The jury had an opportunity to observe the dress and

appearance of the plaintiff and form some notion of her social station and manner of attiring herself. But this particular phase of the question was one for the defendant to request advice to the jury on, if it desired a finding of whether the lost articles were suitable to one of plaintiff's station and means. The defect in the instructions was, at most, a case of nondirection. Of course, the law does not undertake to fix castiron regulations as to just what jewelry or articles of personal adornment an individual of given wealth or rank may carry as baggage. People have different tastes about such things. A very wealthy person might choose to wear no jewelry, whereas a poorer one might have a taste for precious articles and fine clothes and gratify it. Still, the law receives testimony touching the wealth and social rank of plaintiffs in actions like this, as one means of enlightening the jury in regard to whether the lost property should be considered baggage or not. For things may be in a trunk or valise when checked by a traveler which the law will refuse to treat as such. Generally speaking, nothing is baggage which a traveler is entitled to have transported by a carrier as an incident of the contract to carry him except articles of personal comfort, convenience, and ornament usually taken on journeys and visits. The term "baggage" is ambiguous, and the preceding remark suggests, rather than defines, its meaning. It does not, as a rule, include merchandise or furniture. To some extent the question of whether in a given case a certain article was baggage will depend, not only on the condition in life of the traveler, but on the purpose of the journey. We have sufficiently stated, for present purposes, the significance of the term in law. If property is shipped as baggage which should not be, the carrier is liable for its loss only on the score of negligence, unless it was informed what the property was, and consented to carry it as baggage. We rule the point against the appellant that the judgment must be reversed because of lack of evidence to show plaintiff's social degree or fortune, and that the lost property was suited to her circumstances. This ruling is called for both by appellant's failure to raise the point below, and because the nature of the property, in connection with plaintiff's testimony, justified the conclusion that it was for personal use.

It is said the plaintiff failed to call for her trunk within a reasonable time, and thereafter the responsibility of the appellant ceased; that the trunk was turned over to the Terminal Association at the Union Station, which then became liable as a warehouseman for its safe-keeping. It might be answered that no defense was set up based on delay of the plaintiff in taking her trunk from the station, nor was an instruction asked on that theory. The plaintiff established her prima facie right to a verdict by proving delivery of the trunk to the Mobile

& Ohio Railroad Company at Cairo pursuant to a through contract of carriage, and that some of the contents were gone when it was redelivered to her. It then devolved on the defendant to excuse itself. If it wished to do so by showing that its responsibility as a common carrier had ceased by delivery to a warehouseman before the loss occurred, it ought to have introduced some evidence on the subject. It did not. For aught we know, the trunk may have been in the custody of the appellant until a moment before it was received by the expressman. In fact, we know nothing about when it arrived in St. Louis except that it was at the station when the expressman called for it. In any contingency, the appellant was responsible for the goods until they were delivered to plaintiff or her agent. Until then appellant continued liable, either as carrier or warehouseman, and the essential difference would be as to the degree of responsibility. As a warehouseman it would be answerable only in case the property was lost or damaged by want of care on its part. The status of warehouseman sets in, and that of carrier ceases, when the owner has had a reasonable time in which to take the property away after it has reached destination and been unloaded from the vehicle it was carried in. Bell

v. R. R., 6 Mo. App. 363; Gashweiler v. R. R., 83 Mo. 122, 53 Am. Rep. 558. But what proof was there that the trunk and its contents were in good order when unloaded from appellant's car? None whatever. If appellant had shown they were in good condition we would listen to the argument that it was liable only as a warehouseman for their subsequent loss and that negligence on its part must be proved. This point is really one of the burden of proof, and the question is, was the plaintiff bound, in order to recover against appellant as a carrier, to show the property was lost before it was unloaded at the station, and she had had a reasonable opportunity to remove it, or was the appellant bound to show that when its liability declined to that of a warehouseman the property was still intact? We hold the burden in that regard was on the appellant, and that if it wished to shift its character from that of carrier into that of warehouseman it was bound to prove it had acquitted itself fully as a carrier, by unloading the property at the station in good order and keeping it a reasonable time subject to plaintiff's orders. An exact precedent to support this proposition exists. Bell v. R. R., 6 Mo. App. 363, 369. We reject entirely the argument that appellant ceased to be responsible in any capacity, and the Terminal Association became responsible as warehouseman, when the goods were delivered at St. Louis. The evidence before us is inadequate to support such a theory; for it shows nothing about how the Terminal Association happened to have the trunk in its custody.

The further contention is that plaintiff was

bound to prove the appellant was guilty of some negligence which caused the loss. This argument is founded on an expression in the petition that the articles were lost by the negligence of the employés of the two defendants. That statement is not the gist of the petition. The entire gravamen of the case is that the trunk was delivered to and accepted by the appellant for carriage with the lost articles in it, and afterwards returned to the plaintiff without them. The action is not really one for negligence, but on the liability of the appellant as a common carrier.

The judgment is affirmed. All concur.

FOSTER v. KANSAS CITY SOUTHERN RY. CO.

(St. Louis Court of Appeals. Missouri. April 18, 1905.)

BAILBOADS RIGHT OF WAY FENCES-KILLING STOCK-STATIONS-DOUBLE DAM

AGES-STATUTES.

1. A point on a railroad where a switch is maintained for the exclusive accommodation of certain rock quarries is not a station where the railroad is not required to fence its track by Rev. St. 1899, § 1105, though trains sometimes stopped at that point to receive or discharge passengers or freight as a matter of special accommodation.

2. Where a railroad company failed to maintain a proper fence within certain switch limits, as required by Rev. St. 1899, § 1105, and plaintiff's horse got on the right of way within such switch limits, and was so injured in a collision with a train that he had to be killed. defendant was liable for double the value of the horse, as provided by such section.

Appeal from Circuit Court, McDonald County: Henry C. Pepper, Judge.

Action by C. A. Foster against the Kansas City Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Respondent's horse got upon appellant's railroad track at or near Mage, in Elk River township, in McDonald county, and was struck by appellant's engine and train of cars, and so badly crippled and injured that it was killed and buried by appellant's sectionmen. The petition is in two counts. The first is a common-law declaration, and asks judgment for the actual value of the horse; the second is bottomed on section 1105 of the Railroad Act (Rev. St. 1899), and prays judg ment for double the value of the horse. The answer (omitting caption) is as follows: "Comes now the defendant in the above-entitled cause, and for its amended answer to plaintiff's petition denies each and every allegation therein set up and contained, except defendant's incorporation. Further answering, defendant says that at the place where the plaintiff's horse got on the defendant's track, if it did get on the track, was at a place along defendant's road where by law it was not required to maintain either

fences or cattle guards, and was within the switch limits of the depot grounds and switches at Mage, a station of defendant, and that said switches and depot grounds thereat could not be fenced or have cattle guards placed therein without interfering with the usual and customary business of defendant at said station and without endangering the lives and limbs of its employés; that fencing the same or placing cattle guards therein would cause great inconvenience to defendant in the transaction of its business and to the public; and that under the law defendant was not required to fence its station and depot grounds and switch limits at Mage and provide cattle guards, because the same was at that time crossed by and intersected by a regularly traveled public road." The verdict was in respondent's favor for $100. The court doubled the damages assessed by the jury, and rendered judgment for $200.

Cyrun Crane, O. R. Puckett, and O. L. Cravens, for appellant. John E. Christensen, for respondent.

BLAND, P. J. (after stating the facts). The fact that respondent's horse got upon appellant's right of way and was struck by its locomotive and train and so badly injured that it had to be killed, and was killed and buried by appellant's sectionmen, is not in dispute; nor was the respondent's evidence that the horse was of the value of $100 controverted by appellant on the trial. The main points relied on by appellant for a reversal of the judgment are: First, there is no substantial evidence showing at what point on appellant's railroad the horse got on the right of way; and, second, that while the evidence does not show at what particular point the horse got on the right of way, it all tends to show that it got on at some point within appellant's switch limits at Mage Station, where appellant was not required by law to inclose its track by a fence. We will take up the second point first, for, if it is available as a defense, then the respondent was not entitled to recover, and the judgment should be reversed. The evidence shows that in the long ago Mage, a city of mythological name, had a depot and post office and some inhabitants, but that many years since the railroad removed the depot, the postmaster moved away and took the post office with him or turned it back to the government, the inhabitants arose, took up their belongings, moved away, and have not returned, and that the dark arms of the wilderness has encircled her, and the hoot of the owl is heard at night in her precincts; that even the site from which she reared her mythical head would have been lost to future generations had not the railroad company marked it by an enduring monument of creek gravel 144 inches long. 48 inches wide, and 12 inches in thickness, planted near its track. This monument of stones

But

serves the double purpose of marking Mage Station and of furnishing a standing block on which the would-be passenger may mount, and with a red flag in his hand cause a train to stop long enough for him to get aboard. Here also freight trains will drop off such packages as are consigned to that point. the evidence also shows there are two rock quarries, one on either side of the railroad, not a great distance from the Mage monument; that the appellant has built switches to these quarries, over which it pushes cars into the quarries to be loaded with stone whenever required. The road runs north and south at Mage, and is fenced south to within 40 or 50 feet of the gravel-bed station. What appellant calls its switch limits extend from the station from one and one-half to three-fourths of a mile north. The switch on the east side of the railroad leaves the main track not far from the center of the switch limits, and crosses a public road running parallel to the main track at this point. This public road crosses the main track south of the station, and also the switch on the west side of the track. Within the switch limits there is a private crossing over the main track. On account of these road crossings appellant's evidence tends to show that a fence within its switch limits would not only be a great inconvenience to the operation of trains over the switches, but that cattle guards would have to be put in if fences were built, which would make the use of the switches hazardous to the life and limb of the employés handling trains and cars on the switches. Respondent's evidence tends to show that the necessary gates and fences along the track at these points would be neither inconvenient nor dangerous to appellant's employés. The facts in this case, in respect to the situation and surroundings of the so-called switch limits, are not distinguishable from the facts in the case of Duncan v. Railway, decided by this court, and reported in 85 S. W. 661, where it was held: "Where a switch track ran from the main track of a railroad to a stone quarry for the sole convenience of the quarry, and the use of the track had never been offered to the general public, the tracks at that point were required to be fenced under Rev. St. 1899, § 1105, requiring the fencing of tracks passing through or along inclosed fields or uninclosed lands." The same conclusion, or substantially the same, was arrived at in the still later case of Smith v. Railroad, 85 S. W. 972. We do not wish to be understood as holding that a depot building or the presence of a station agent is indispensable to constitute a place a station; but we do not think that a point where a switch is maintained for the exclusive accommodation of a mill, rock quarry, or mine is a station. although trains do sometimes stop at such point to receive or discharge passengers or freight as a matter of especial accommodation. The switches at Mage

were for the accommodation of the rock quarries. They were not there for the transaction of business with the public, and the gravel platform was scarcely used at all by the public, and we think the evidence falls very far short of showing that it was a station.

In regard to the first point, the evidence is that the land east of the railroad at Mage is open woods, and that cattle and horses running at large graze in these woods; that some years ago appellant built a post and wire fence on the east side of the road to what appellant calls its depot grounds, which were then left open, and have ever since remained open. The respondent's horse was killed near the station. The evidence is the posts of the fence were set 16 feet apart and, at the time the horse was killed, and for a month or more prior thereto, this part of the fence was in a bad condition; that at two places the posts had rotted off at the ground, some of the wires were loose, and the fence swung inward, the wires being down so that horses and cattle could easily go over the fence. There never was any railroad fence on the west side of the track. Most of the land on that side of the road, however, was in cultivation and inclosed by farm fences. The horse was struck near the south end of the switch limits. There is no direct evidence as to where it got on the right of way. One of the witnesses testified that he traced fresh horse tracks on the railroad track from the private crossing south to where the horse was found, but did not look for tracks north of the crossing. Appellant's theory is that the horse got on the right of way within the switch limits. We think this theory is supported by the evidence; in fact, no other plausible theory is deducible from the evidence. Adopting this theory as the correct one, the result that the appellant is liable for double the value of the horse, under section 1105, supra, is irresistible, and hence it matters not what error was committed on the trial, the judgment is for the right party, and it is our duty to affirm it on the conceded facts.

The judgment is affirmed. All concur.

SUPERIOR LODGE, DEGREE OF HONOR, A. O. U. W. v. PHILBIN et al.* (St. Louis Court of Appeals. Missouri. April 18, 1905.)

INSURANCE-BENEFICIARIES-CHANGE-TRUSTS -APPOINTMENT OF TRUSTEE

FINDINGS-EVIDENCE.

1. On a bill of interpleader to determine the ownership of certain insurance, evidence held to sustain a finding that the insured authorized the issuance of a new certificate naming P. as the beneficiary.

2. Where, on a bill of interpleader to determine the ownership of the proceeds of a policy, it appeared that insured intended that such

*Rehearing denied May 16, 1905.

fund should go to her children, after paying a -certain amount to creditors, for funeral expenses, etc., and that an appointment of P. as beneficiary was not for her benefit, but as trustee only, and P. was unable to perform the trust, it was error for the court to direct the payment of the proceeds of the policy to her as an individual, without bond, instead of appointing a trustee capable of executing the trust, with bond.

Appeal from St. Louis Circuit Court; Jas. R. Kinealy, Judge.

Interpleader by Superior Lodge, Degree of Honor, of Ancient Order of United Workmen against Catherina Philbin and others. From a judgment awarding the fund to defendant Philbin, Nellie Satchwell and others appeal. Reversed.

John P. Leahy and Edward A. Noonan, for appellants.

Opinion.

GOODE, J. The plaintiff, the Superior Lodge, Degree of Honor, of the Ancient Order of United Workmen, is a fraternal society issuing certificates of insurance. Mary Satchwell, now deceased, was formerly a member of Acorn Lodge, No. 44, in the city of St. Louis. She took out a benefit certificate October 30, 1902, designating her husband, Hubert Satchwell, as beneficiary. Afterwards, on May 15, 1903, the insured revoked the designation of her husband as beneficiary of the certificate, and directed that a new certificate issue, payable to "Nellie, Joseph, Charlie and Katie Satchwell and Catherina Philbin, bearing the relation to me of mother, guardian of my children, without bond." A certificate payable to those beneficiaries was issued May 20, 1903. On July 24, 1903, Mrs. Satchwell ordered her second designation of beneficiaries changed so that the certificate would be payable as follows: "To Nellie, $100; Joseph, $100; Charlie, $100, and Katie $300, bearing the relationship to myself as children, and $400 to Mrs. Ellen McCormack (aunt by marriage), for paying all indebtedness imposed by me such as doctor & undertaker." request for a change of beneficiaries was made on the back of the second certificate by filling a printed blank, signing it, and procuring the attestation of the signature by the recorder of Acorn Lodge, Emma N. Messenger, and the seal of said lodge. The request strictly conformed to the by-laws of the or der. At the time it was made, Mrs. Satchwell was very low with consumption--on her deathbed, in truth, because she never got up, and died October 14, 1903. Mrs. Messenger, recorder of Acorn Lodge, transmitted the certificate, with the request on the back for a change of beneficiaries, to Clara Belle Murrell, recorder of the Grand Lodge, whose office was also in St. Louis. The bylaws of the order provided that a beneficiary must be a member of the family of the insured, or some person related to her by blood, or dependent on her. When Mrs.

This

Satchwell's request was presented, Mrs. Messenger felt dubious about the capacity of Mrs. McCormack, a relative by marriage only, to be a beneficiary. But as she was to take as trustee, and pay the sum made payable to her on any indebtedness the insured might leave, Mrs. Messenger thought that probably she came within the spirit of the by-laws. When the grand recorder received the request, she asked advice from the grand council of honor on the subject. While waiting for a reply, and with the certificate still in her hands, she was directed by John Flannery, a distant relative of Mary Satchwell, for whom he assumed to act, to designate Catherina Philbin as beneficiary. In obedience to Flannery's direction, Mrs. Murrell erased the names of the children and of Mrs. McCormack in the request, by drawing a red line across them, and inserted in lieu of them the name of Catherina Philbin, as mother. The request then read as follows:

"I Mary Satchwell, to whom the within certificate was issued, do hereby revoke my former direction as to the payment of the Beneficial Fund due at my death and now authorize and direct such payment to be made to Nellie, $100; Jesepk, $100; Charlie, $109 and Katie $388- Catherina Philbin bearing relationship to myself of Mother, children and $100 to Mrs. Ellen McCormack (auni by merninge) for paying all indebtedness imposed by me such as Docter & Undertaker. "Witness my hand and Seal this 24th day of July, 1903.

"Mary Satehwell. [Seal.] "Attest: Emma N. Messenger, Recorder." Mrs. Murrell made out a new benefit certificate, payable to Catherina Philbin, and transmitted it to Mrs. Messenger, recorder of Acorn Lodge, with the following letter inclosed:

"St. Louis, Mo., Aug. 4th, '03. Mrs. Emma N. Messenger, Recorder Acorn Lodge, No 44, Degree of Honor, A. O. U. W.-Dear Sister: Enclosed find the policy changed as Mrs. Satchwell desires. The changes you instructed me to make were referred to our G. C. of H., Mrs. Morgan, and at that date could not be done.

"While I was awaiting the reply of the G. C. of H. as to what to do, I received instructions from Mr. J. Flannery, a cousin of Mrs. Satchwell, to write the policy as it now reads. I therefore return it to you, and if not satisfactory to the applicant, will make such changes as she desires.

"Hoping this may prove satisfactory and that I may soon receive some more beneficiary applications from Acorn Lodge, No. 44, I remain yours fraternally, C. H. & P.,

"Clara Belle Murrell, G. R." Mrs. Messenger returned the new certificate to the grand recorder for the reason that it was not in conformity to Mrs. Satchwell's request. It was again sent by Mrs. Murrell to Mrs. Messenger, and taken by