An alien who lost a valuable trained dog through a railroad’s admitted carelessness is here complaining that he was cavalierly hustled out of the court below by a summary judgment.

A full trial, with ample opportunity for the cross-examination of witnesses, can no doubt clear up many, if not all, of the uncertainties, contradictions, and errors that have crept into this case.

Poor Pudsy died from lack of ventilation in a locked baggage car. His master’s lawsuit should not be permitted to die from lack of ventilation in a summary-locked court of law. Let there be light.

1. Statement of Facts

A summary of the appellant’s statement of facts, which the appellee concedes “is generally correct”, follows:

For the purpose of exhibiting a trained black and white fox terrier named “Pudsy”, the appellant and his wife, accompanied by the dog, left their home town in Ireland to come to the United States, in June, 1952. The intention was to show “the dog on television, in the movies and displaying him to the children of the United States”.

The appellant had purchased in Ireland his railroad tickets from New York to Los Angeles, but the ticket for the dog was solely to New York, since the agency in Ireland had never shipped a dog as far as California.

In New York the appellant inquired at the railroad station “all about the shipment; * * * he had never shipped [the dog] on this train before so he wanted to know”. The appellant “asked the man further if he would be able to get in beside the dog whenever he wanted to and the agent of the railroad told him that he would. In New York no slip of valuation was signed.”

The appellant purchased a dog crate, which he was told would be needed for shipping the animal.

In Chicago, the appellant asked his wife “to find out the particulars of what I have to do with this dog before I give him over”. He then went to a rest room, taking the dog and the crate with him.

In the meanwhile, the appellant’s wife went to the baggage counter at the Chicago Passenger Terminal to make the inquiries.

When the appellant came back, “the man who was talking to his wife called him over by the baggage counter and asked [him] if it was his dog, and he told him, ‘Yes’.”

The appellant informed the baggage man of the Chicago and North Western Railway Company that Pudsy was a valuable trick dog, that he had brought him all the way from Ireland, and that he wanted “to see him safe”. The baggage clerk advised the appellant “that the company would be careful with the dog and that he should put him in the crate”. After putting the dog into the crate, the appellant said:

The man answered, “Yes, you will be able to do that.”

The appellant then asked whether there would be a man in charge and he was told that there would be, and that the appellant “would be able to get in to see Pudsy”.

The appellant followed the dog to the baggage car, and, after straightening the crate, which was upside down, on the baggage wagon, assisted in lifting the crate into the baggage car. He inquired whether he would be able to “get in with the dog and would there be a man in charge of the baggage car looking after the dog. He was told that there would be and in answer to his further inquiry as to whether he could get in and look after his dog * * * [h]e was informed by the agent of the [appellee Chicago and North Western] that he would be able to get in to see his dog”.

In an affidavit filed by the appellant in opposition to the motion for a summary judgment, the following statements appear:

At the time of the shipment of the dog, the appellant did not sign any valuation slip, nor did he have any information of any such slip being signed by anyone until after he arrived in Los Angeles.

In this connection, it should be pointed out that E. R. Foster, a baggage check clerk of the appellee Chicago and North Western at the Chicago Passenger Terminal of that company, made a detailed affidavit to the effect that the appellant himself stated to him that he desired to check his dog through from Chicago to Los Angeles on the “City of Los Angeles No. 103”, commencing that evening; that the appellant exhibited a passenger ticket entitling him to passage on that train; that in accordance with the provisions of Western Baggage Tariff No. 24-13, Foster asked the appellant to make out the valuation slip required and saw him do so in his own handwriting:

The appellee grudgingly concedes that there are “certain alleged contradictions between the affidavits filed in support of the Motion for Summary Judgment and the interrogatories and affidavits submitted by the Appellant and also the depositions of Appellant and his wife”; that “There are some discrepancies in this respect”; and that Foster’s “recollection was apparently faulty and apparently it was really Mrs. Mitchell who performed this act in the presence of her husband”.

Our own independent study of the record convinces us that the above contradictions are not only “alleged” and “apparent”, but are real and, palpable. Whether they are material will be discussed hereinafter.

Continuing our narrative, we find that it was Mrs. Mitchell who signed what “purported to be a valuation slip”. She was asked by the baggage clerk to fill in her “husband’s name and destination” on the ticket. She did so. She deposed that the baggage check clerk also told her:

Mrs. Mitchell’s statement continues:

At the time of her obeying the direction of the baggage clerk, the latter had indicated that he was in a big hurry, and Mrs. Mitchell was merely acting upon his direction without any notification or understanding of what was intended by the “25”. At no time did either the appellant or his wife have any actual notice of any limitation of liability, nor were they actually informed of any such limitation on behalf of the railroad.

After the train left Chicago, the appellant attempted to “check on his dog, and for several hours and contrary to what he had been previously advised, he was told that the baggage car was locked and that he could not get in to water, care, and feed his dog, and that there was no one in the baggage car to care for the dog.”

For want of water, food, adequate ventilation, and other attention, Pudsy died. The District Court found:

2. Statement of the Case

On June 18, 1953, the appellant filed a “Complaint for Damages”, based upon the death of the dog. Three causes of action were alleged.

The first cause of action set forth that when the appellant delivered the dog to the appellees in Chicago, he was advised by the agents of the appellees that one of their agents would be in the baggage car with Pudsy and would care for him; that the appellant would have an opportunity to care for the dog himself, by being allowed access to the car; that relying upon those statements he allowed the animal to be placed into the appellees’ custody; that when the appellant boarded the train and requested access to the car in which the dog was being carried, he was advised that no one was in charge of the car, and that it was sealed and no one could enter it. Whereupon the appellant begged the appellees’ agents to allow him access to the bag gage car to care for the dog, but the agents denied him access to his dog. The appellant relied upon the agents’ statements that he would be able to care for his dog and that some one would be present in the car to care for the dog. If such statements had not been made he would not have allowed the animal to be transported by the appellees. As a result of lack of care, the dog died.

The first cause of action alleged damage in the sum of $100,000 “as a direct and proximate result of the fraud, concealment and subsequent loss of” the dog; and averred “that by reason of said wilfulness, wantonness and flagrant indifference, [the appellant] demands as exemplary punitive damages” $100,000.

, „ , The second cause of action is based upon an allegation of negligence, and the third cause of action afleges wilful, wanton and flagrant indifference to the consequences” m connection with the appellees alleged failure to furnish suitable care, supervision for said dog while m transit ” etc. In the second and third causes of action, $100 000 actual and $100,000 exemp ary and punitive damages are demanded for each cause of action.

. , AT Tbe a“ appelle® Chlcag0 an^ North Western Railway Company, filed on November 2, 1953, admitted the appellant’s delivery of the dog to the appellee at Chicago, and that the appellee agreed to convey the animal on the same train in which the appellant was riding, to Los Angeles. All other allegations of the complaint were denied. In addition, the appellee alleged that it had duly filed with the Interstate Commerce Commission and had kept open to public inspection, etc., its Western Baggage Tariff 25-13, effective June 15, 1948, Rule 7-G of which was as follows:

The answer further alleged that the appellant did not declare a greater value than $25 for the dog, nor did the appellant make any payment or offer of payment of the rate set forth in the above tariff for any such deciaration of greater value; that on the contraryj the ap_ Uant in order to secure the minimum rate> si!?ned a deeiaration that the dog was valued at not more than $25> etc.; ^ under the provisions of the Federal Interstate Commerce Act it is uniawfui for the appellee to deviate from the pro_ visions of the tariff, etc., and that therefore appellant,s reCovery, if any, should be limited to |25.

It might here be stated that, in this same Western Baggage Tariff, Rule 6(c) m , fnllnw„. ‘

-^nd Rule 7(1) (A), (I) and (J) provides:

„ „ , „ On December 22, 1953, the appellees filed a motion for a summary judgment m favor of the appellant for $25 On December 16, 1955, the District Court filed its Findings of Fact and Conclusions of Law which have already been quoted m part, and also handed down a summary judgment m favor of the appellant against the Chicago and North Western Railway Company, one of the appellees, for $25, with costs.

From that judgment, the present appeal has been taken.

3. As a Matter of LAW, the Appellani’s Wife Was Not Necessarily His Agent When She Wrote “25” on the Val-nation Slip.

The appellees assert “that as a matter of law there is no difference between these two sets of facts [L e., whether (1) Mrs. Mitchell signed the valuation slip, or (2) Mr. Mitchell signed it] and that Mr. Mitchell is just as much bound by the actions of Mrs. Mitchell, performed in his presence and later ratified by him when he handed over the dog for placing on the train, as if he had done the same acts himself.”

Whether, under the pleadings, exhibits, and depositions, Mrs. Mitchell was the agent of her husband when she placed the cryptic “25” on the ticket, is a question that we will take up in the ensuing section. At the moment, we will consider briefly the question of whether, because of the marital relationship alone, there is any presumption that Mrs. Mitchell was acting as her husband’s agent when she signed his name to the valuation slip.

[i;¡ It ig hornbook law that there is no guch legal presumption.

T ~ T „ TT ■, „r.,, 0 In 41 C.J.S., Husband and Wife, § 65h(2) (a), page 537, it is said:

The question of agency generally, of course, is one of fact. Riverside Fibre & Paper Co. v. O. C. Keekley Co., 7 Cir., 1929, 32 F.2d 23, 26 .

4. The Limited Record Before Us Does Not Establish, As a Matter of FACT, That Mrs. Mitchell V/as Acting as Her Husband’s Agent When She Signed His Name to the Valuation Slip.

We next address our attention to the question of whether Mrs. Mitchell was acting as her husband’s agent when she placed her “husband’s name and destination” and the crucial “25” on the valuation slip. She deposed that when she wrote on the slip, her husband “was ‘way over there, doing something with the dog’ ”, at a distance from her that counsel agreed would be about 30 feet, according to what they were able to gather from her testimony. Mitchell himself testified that he didn’t see her write anything on the valuation ship, and that she told him what she had done only after “my dog was dead.” Indeed, he added, “She must have wrote it while I was away”.

Mitchell further said that he had no conversation with his wife while he was at the baggage counter: “The man was in a hurry and rushing us on.” The appellant estimated the distance between his wife and himself at the baggage counter as being 15 to 20 feet.

Nor did the appellant authorize his wife in advance to sign any document, or to affix his name and destination. If there was any agency at all, it was merely to inquire — “to find out the particulars of what I have to do with this dog before I give him over.” He did not authorize his wife, either expressly or impliedly, to affix his name to any document, much less, specifically, to bind him by any valuation of the dog.

Indeed, in his affidavit in opposition to the motion for a summary judgment, the appellant swore “that at no time herein was the Plaintiff advised, nor did he know, that he had a choice to place any valuation whatsoever upon his dog, ‘Pudsy’, by the Defendants herein.”

If it be argued that the depositions of the appellant and his wife are unsatisfactory, we readily agree. So is the affidavit of the baggage check clerk, when parsed for gender. It is precisely such uncertainties that render a summary disposition of the case erroneous.

5. Even If Mrs. Mitchell Is Regarded as the Appellant’s Agent, There Is Evidence That She Was Unfairly Prevented From Realizing What She Was Signing.

There is testimony that the baggage check clerk “high-pressured” Mrs. Mitchell into signing a document so that she “didn’t have time to hardly write” her name, “let alone read it”; that the clerk urged her to hurry; that he told her to put down “25”; that she never saw what the paper was “or anything else”. When it is remembered that she and the clerk were not on an “equal footing” under the circumstances, it is plain that a court should desire to probe into the matter further.

In New York, New Haven & Hartford Railroad Co. v. Nothnagle, 1953, 346 U.S. 128, 135-136 , 73 S.Ct. 986, 990 , 97 L.Ed. 1500 , where a similar $25 limitation of liability was invoked against a passenger, the Court said:

While we recognize that the facts in Nothnagle were not the same as those in the instant case, we believe that the principles there announced should guide us here. In the following footnote, the Supreme Court there distinguished three cases heavily relied upon by the present appellee, which decisions are equally inapplicable to the instant case:

“12. Boston & Maine R. Co. v. Hooker, 1914, 233 U.S. 97 , 34 S.Ct. 526 , 58 L.Ed. 868 , and New York Central [& Hartford] R. R. Co. v. Beaham, 1916, 242 U.S. 148 , 37 S.Ct. 43 , 61 L.Ed. 210 , cannot control this case. Neither decision involved the Act as amended by the 1915 and 1916 legislation; both dealt with free baggage checked through on a passenger ticket; the carrier in both cases had supplied some notice of its limitation of liability. In Galveston, H. & S. A. R. Co. v. Woodbury, 1920, 254 U.S. 357 , 41 5. Ct. 114, 65 L.Ed. 301 , the sole issue raised or considered related to the interstate nature of the passenger’s journey.” [Emphasis supplied.]

6. There Is Evidence That the Appellant Himself Knew Nothing of His Wife’s Signing Until After the Dog .was Dead.

The appellant testified that his wife informed him of her writing on the valuation slip only “After all this had been done, my dog was dead”.

Such ex post facto knowledge, of course, under the facts of this case cannot support any theory of ratification by the appellant.

In Fitch v. Carpenter, 1945, 70 Cal. App.2d 827, 829, 831, 832 , 161 P.2d 824, 825 , the Court said:

7. Conclusion.

We hold that as a matter of law, Mrs. Mitchell was not necessarily the appellant’s agent when she wrote “25”' and his name and destination on the valuation slip; that the meager record before us does not establish, as a matter of fact, that she was acting as her husband’s agent when she wrote on the valuation slip, but, on the contrary, suggests an opposite conclusion; that even if she were to be regarded as his agent, there is evidence that she was unfairly prevented from realizing what she was signing; and that there is evidence that the appellant himself knew nothing of his wife’s signing until after Pudsy was dead.

Accordingly, the summary judgment of the Court below is vacated, and the cause is remanded with instructions that the parties be accorded a full and ordinary trial on the merits.

Judgment vacated and case remanded, with instructions.