Payne v. Norman

LEVY, J. (after stating the facts as above). The question on appeal is the amount of damages recoverable by the appellee. It appears that the amount of $250, for which the court entered judgment for the appellee, is made up as follows: (a) $100, the value of the personal effects of M. B. Harrell; (b) $100, the value of the personal effects of Mrs. Harrell; (e) $50, the value of the personal effects of their little girl, Martha. The appellant contends that the court erred in rendering judgment for more than $100 and interest thereon, because only one contract was consummated and only one contract breached by the railway company, and the terms of the published tariff apply to only one piece of baggage, or one trunk and its contents, which the family took wtih them on their journey. In other words, only $100 should be allowed for the baggage of all three members of the family. It has been held that a carrier in interstate commerce, by publishing a tariff in accordance with the act of Congress, may limit its liability for loss of baggage or effects to not exceeding $100, in cases where the passenger fails to declare a higher value and to pay the excess charge at the time of the- delivery of the baggage to the carrier. Ry. Co. v. Hooker, 233 U. S. 97, 34 Sup. Ct. 526, 58 L. Ed. 868, L. R. A. 1915B, 450, Ann. Cas. 1915D, 593. See Ry. Co. v. Hailey (Tex. Civ. App.) 156 S. W. 1119. The difference between the Hooker Case, supra, and the instant case iay in a simple, unmixed fact only. In the Hooker Case there was only one passenger having a trunk checked for the trip, while in the instant ease the one trunk used by a family on their journey was checked on- the tickets of all three members of the family. The trunk was too heavy, to be checked on one ticket without charges for additional weight. The difference in the facts of the two cases, however, is, we believe, quite immaterial, for the facts of the instant case bring it also well within the terms of the published tariff and under the law as construed in the Hooker Case. It is to be borne in mind that only $100 each was allowed to the mother and father, and $50 to the child. *885 According to r.ule 10 of the published tariff! in evidence, “each adult passenger” is expressly allowed to cheek, “without additional charge,” 150 pounds of baggage, and “each child traveling on a half ticket” is allowed to check 75 pounds of baggage, on the trip that they commence. And, according to further terms of the published tariff, baggage may be cheeked by two or more persons “jointly” (meaning unitedly) if they (1) “are members of the same family,” or (2) “can prove to the satisfaction of the baggage agent that they own the baggage jointly.” ! While nothing is said in the tariff of the container, or trunk, whether one or more, that the said “family” or the said group of passengers may use- on the journey to hold their baggage .or effects, still it was evidently the intention to authorize and allow the joint use of one trunk by them. The meaning and purpose of the tariff is apparent that, for example, two “adult” passengers may check 300 pounds of baggage in one trunk without additional charge, or a family traveling together may check their baggage in one trunk to the full authorized and allowable weight, according to the number and age prescribed, without additional charge. Therefore the published tariff may properly be construed to allow the very things done in the instant case, viz.,. to allow the baggage or effects of the husband and the wife and their child to be in one trunk and to be checked on the three tickets of the said family, to the extent, as here, of the authorized weight allowed the three persons named, without additional charge. It has long been the rule that members of the same family, traveling together, may carry their baggage in the same trunk, or one may carry in his trunk the baggage of another and that there may be recovery for the loss of the baggage of each. Ry. Co. v. Baldwin, 113 Tenn. 205, 81 S. W. 599; Brick v. Ry. Co., 145 N. C. 203, 58 S. E. 1073, 22 Am. St. Rep. 440, 13 Ann. Cas. 328; 10 Corpus Juris, 1189. The father may recover for the loss of baggage belonging to his infant daughter, and as husband may recover for the' loss of the wearing apparel of the wife. Baltimore Steam Packet Co. v. Smith, 23 Md. 402, 87 Am. Dee. 575; 10 C. J. 1231. The fact that one check only was given to M. B. Harrell would be immaterial, for the usual baggage cheek delivered to a passenger does not embody the contract of transportation, but is a receipt merely, intended to afford evidence of ownership and for identifying the baggage. Isaacson v. Ry. Co., 94 N. Y. 278, 46 Am. Rep. 142; 10 C. J. 1199. The contract was for the transportation of the baggage of the three members of the family. Mr. Harrell, as holder of the check and with whom the contract was primarily made, was entitled, as consignee as well as upon the contract made with him, to sue for the performance of the entire contract. -The railway would be protected by such judgment. The contentions made by appellant should, we conclude, be overruled. The judgment is affirmed.