Saunders v. Southern Ry. Co.

BURTON, Circuit Judge, after making the foregoing statement of the case, delivered the opinion of the court. 1. It is well settled that a common carrier may contract for a reasonable limitation of its common-law liability for loss or damage to cither freight or baggage not resulting from its own negligence or that of its servants. New Jersey Nav. Co. v. Merchants’ Bank, 6 How. 344, 12 L. Ed. 465; York Co. v. Central Rd., 3 Wall. 107, 18 L. Ed. 170; Mich. Cent. Rd. v. Mfg. Co., 16 Wall. 318, 21 L. Ed. 297; Railroad Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627; Express Co. v. Caldwell, 21 Wall. 264, 22 L. Ed. 556; Railroad Co. v. Pratt, 22 Wall. 123, 22 L. Ed. 827; Bank v. Adams Ex. Co., 93 U. S. 174, 23 L. Ed. 872; Railway Co. v. Stevens, 95 U. S. 655, 24 L. Ed. 535; Railroad Co. v. Fraloff, 100 U. S. 24, 25 L. Ed. 531: Hart v. Penn. Rd. Co., 112 U. S. 331, 338, 5 Sup. Ct. 151, 28 L. Ed. 717; Liverpool Steam Co. v. Phenix Co., 129 U. S. 397, 441, 9 Sup. Ct. 469, 32 L. Ed. 788; Constable v. National Steamship Co., 154 U. S. 51, 14 Sup. Ct. 1062, 38 L. Ed. 903. This is also the doctrine as recognized hy the courts of Tennessee. Railroad v. Gilbert, 88 Tenn. 430, 12 S. W. 1018; Railroad v. Dies, 91 Term. 177, 18 S. W. 266, 30 Am. St Rep. 871. 2. A contract to carry without additional compensation a reasonable amount of personal baggage is implied from the sale of a ticket. 3 Ency. Am. & Eng. Law, 543; Angell on Carriers, § 115; Isaacson v. N. Y. Central Rd., 94 N. Y. 278, 46 Am. Rep. 142; Bomar v. Maxwell, 9 Humph. 622, 624, 51 Am. Dec. 682; Miss. Cent. Rd. Co. v. Kennedy, 41 Miss. 671. 3. But this implied obligation is limited to such articles of personal baggage as are, reasonably required for the comfort or convenience of the passenger and his family, having regard to the circumstances of the traveler, character of the journey, etc. Hannibal Railroad v. Swift, 12 Wall. 272, 20 L. Ed. 423; Railroad v. Fraloff, 100 U. S. 24, 25 L. Ed. [20] 531; Bomar v. Maxwell, 9 Humph. 622, 51 Am. Dec. 682; Coward v. E. T. & V. Rd., 16 Lea, 225, 57 Am. Rep. 227. 4. The traveler must exercise good faith, and, if he obtain carriage as baggage of merchandise or articles not within the category of ordinary personal baggage, without disclosing the fact, the carrier will not be liable for their loss or damage. Humphreys v. Perry, 148 U. S. 627, 13 Sup. Ct. 711, 37 L. Ed. 587; Bomar v. Maxwell, 9 Humph. 622, 51 Am. Dec. 682. But if articles or merchandise not personal baggage be accepted, without deception by the passenger, and with notice, the liability will arise to safely carry and deliver. Stoneman v. Erie Ry. Co., 52 N. Y. 429; Millard v. M. K. & T. R. Co., 86 N. Y. 441; Hannibal Rd. v. Swift, 12 Wall. 262, 20 L. Ed. 423. 5. The general liability for the baggage of a passenger is that of an insurer. But this common-law obligation may be limited by an agreement, fair and reasonable, between the carrier and passenger against all loss and damage not resulting from the negligence of the carrier and his servants. 3 Thompson on Negligence, § 3455. The rule in respect to baggage is not different from that in relation to freight. 6. When a carrier desires to limit its common-law responsibility, there is nothing unreasonable in requiring that the extent of the exoneration shall be plainly declared, and brought to the attention of its customer in such way as to afford opportunity for acceptance or rejection. In New Jersey Nav. Co. v. Merchants’ Bank, 6 How. 344, 382, 12 L. Ed. 465, it is said: “The exemption from these duties should not depeud upon implication or inference founded on doubtful and conflicting evidence, but should be specific and certain, leaving no room for controversy between the parties.” In N. Y. Central Rd. Co. v. Fraloff, 100 U. S. 24, 27, 25 L. Ed. 531, the court said: “It is undoubtedly competent to carriers of passengers, by specific regulations, distinctly brought to the knowledge of the passenger, which are reasonable in their character, and not inconsistent with any statute, or their duties to the public, to protect themselves against liability, as insurers, for baggage exceeding a fixed amount in value, except upon additional compensation pro-I>ortioned to the risk.” In the case of The Majestic, 166 U. S. 375, 17 Sup. Ct. 597, 41 L. Ed. 1039, a ticket containing a limitation of liability for baggage printed upon its back was held to be a mere notice, and not a part of the con- ' tract, and riot obligatory upon the passenger as matter of law, when it appeared that attention had not been called to the conditions, and the passenger was without actual knowledge until' after the journey had begtpn. See, also, Rawson v. The Penn. Rd., 48 N. Y. 212, 8 Am. Rep. 543; 3 Thompson on Negligence, §§ 3455-3457, 3459. 7. It follows from the foregoing that a carrier is not obliged to carry goods, articles, furniture, etc., or anything not fairly to be regarded as personal baggage reasonably required for the convenience and comfort of the passenger as baggage, and may refuse to carry such articles except as freight, and under the customary methods for carrying-freight. If, ’ therefore, the traveler wish to have such goods carried as if personal baggage, he can only do so by complying with the rea [21] sonable terms and conditions imposed. 3 Ency. Am. & Eng. Law, 539, and cases cited. 8. 'That stage costumes, scenery, furniture, etc., making up the paraphernalia of a traveling theatrical company do not constitute the personal baggage which a carrier impliedly contracts to carry without additional compensation, and along with the passenger, must be conceded. 3 Thomp. Neg. § 3417; Oakes v. N. P. Rd. Co., 20 Or. 392, 26 Pac. 230, 12 L. R. A. 318, 23 Am. St. Rep. 126. If, therefore, the plaintiff desired to have this company outfit carried with his troupe as if personal baggage, he was under obligation to either specially arrange for their carriage, or rely upon and comply with the reasonable regulations of the carrier in respect of such theatrical baggage, etc. It was therefore competent to prove the custom of railroad companies in regard to the carriage of such articles, and any regulation which had been adopted in that respect. For the' purpose of fixing notice of this custom, or of the regulations adopted, upon the plaintiff, it was admissible to show that he was accustomed to manage traveling troupes. Plaintiff had no right to rely upon any implied agreement to carry his stage baggage as if personal baggage, and without additional compensation, unless he could show a general custom, such as exists in regard to personal baggage, and from which general custom an implied contract is presumed. The mere fact, therefore, that he bought a ticket for 18 persons in order to carry 14 does not imply any agreement whatever in respect to the free carriage of articles not properly personal baggage. 9. The difficulty in this case arises out of the fact that Coltman, the advance agent for the plaintiff’s company, did apply to the defendant’s agents for the terms upon which the defendant would transport plaintiff's company, and was informed that the rate for a company of 18 in one ticket to Lexington, with the privilege of stopping over at Atlanta, Chattanooga, and Knoxville, carried the right of a separate car, without extra charges, for stage baggage, scenery, etc., the car to he carried on the same train or a train in advance. It was not shown that Coltman was notified then or at any other time that, in addition to buying a ticket for 18 people in order to carry his party of 14, the company must be released from all loss and damage sustained by the company baggage so to be transported with the company. Neither was it shown that either Coltman or the plaintiff was aware of the regulation of the defendant or of the carriers associated as the Southeastern Passenger Association requiring such a release, except as such knowledge may be presumed from the existence of the regulations and of the custom of railroad companies in the matter of such special baggage. Neither was it shown that either Colt-man or the plaintiff were furnished with the itinerary set out above, which contained a reference ho a release. Coltman informed plaintiff of the terms as given him at Birmingham by the defendant’s agent, Freeman, and himself accepted transportation as an advance agent, and continued to travel in advance about one week. About a week after getting the terms of transportation, the troupe reached Birmingham, and plaintiff bought such a party ticket as he had been advised would carry with it a special car for the company baggage without extra cost. [22] He was not then advised that he must execute a release. That- night, when the baggage had been loaded in a car furnished, the defendant's baggage agent demanded that a release should be signed. This demand was made of one Davenport, the company’s, property man, whose business it was to see to the hauling of the stuff from the' theater to-the station, and to properly load it into the car furnished for that purpose. Davenport, being shown a copy of the itinerary set out heretofore, signed the release presented. This demand made on Davenport was not communicated to plaintiff, nor did he know that any release had been signed by Davenport until the fact came out in proof. At Atlanta plaintiff bought another solid ticket through to Lexington, Ky., for a party of 18, and paid the party rate as advised by Coliman. He neither then knew, nor was he then notified, that he would have to sign a release before he could have the baggage moved. Before he left Atlanta, but after he had bought his transportation, he was called upon to sign a release of loss and damage, but declined to do so. The baggage was, however, forwarded to Chattanooga, where another demand was made- and- refused, the baggage being again forwarded without the release. At Knoxville plaintiff refused to sign, and the defendant refused to forward the company theatrical baggage without execution of the release. Twelve hours after, plaintiff signed under protest, and the troupe and baggage went forward, but too late to meet an engagement at Lexington. Excluding imputed notice through Davenport and by means of the alleged notoriety of the regulation here sought to be enforced, plaintiff had a right to believe that he was entitled to the transportation of his company baggage in a special car, and subject to1 the' common-law responsibility of the carrier for loss or injury to that baggage. The only terms known to him when he bought his tickets at Atlanta were those given by defendant’s agents to his advance agent, Coliman, whose business it was to arrange for transportation. His rights and the carrier’s liabilities were fixed and determined when the tickets were bought, under terms so previously given, covering the matter of baggage transportation. Subsequent notice of a limitation of liability will not alter the rights thus determined, unless he assented thereto upon a sufficient consideration. Rawson v. Penn. Rd. Co., 48 N. Y. 212, 8 Am. Rep. 543; Railroad v. Turner, 100 Tenn. 213, 224, 47 S. W. 223; Wilson v. C. & O. R. Co., 21 Grat. 654; Logan v. Pontchartrain R. Co., 11 Rob. (La.) 24, 43 Am. Dec. 199; 3 Am. & Eng. Ency. Law, 558. If, however, the plaintiff knew, before purchasing his ticket, that the condition under which the baggage of such traveling show was transported without charge was that he should release the company from its common-law liability^' for loss and damage, the jury would be authorized to presume his assent. ITis knowledge of the regulation might also be presumed from circumstances, including the generality of the regulation, the time it had been in force, and plaintiff’s experience as a traveler with such company. But the evidence upon this matter was not so conclusive as to justify the court in holding, as matter of lavtq that he knew of this regulation, and had assented to it. Neither did the evidence justify an instruction to> find for the defendant upon the ground of Davenport’s action at Birmingham. [23] Coltman was the advance agent of plaintiff, and as such charged with the duty of contracting for transportation. This he did, and upon the strength of the agreement between him and the defendant he was ticketed over the defendant’s line, and the itinerary issued to the several agents of the railroad company interested. The terms made were communicated to the plaintiff, and acted upon by him in the purchase, a week later, of a party ticket for 18 from Birmingham to Atlanta," and then from Atlanta to Lexington, Ky. Davenport’s duty was to load and unload the company’s effects, hie was called its “property man.” He had no duty in reference to making contracts for the transportation of the company, and still less to agree to the alteration of one after it liad been made by the agent of the company charged with that duty. It was error, therefore, to impute Davenport’s knowledge to the plaintiff when he bought his tickets from Atlanta to Lexington. He still had the right to suppose that the defendant’s agreement to transport his stage effects was subject to its common-law carrier liability, unless he otherwise is chargeable with notice and assent; and was not obliged to agree to a change or alteration of the terms given his agent after the contract had been closed by buying the tickets at Atlanta. io. The release which the plaintiff was asked to sign does not, in terms, exclude loss and damage arising from negligence. Nor is it broader than the regulation. Neither is valid as an exoneration for liability for negligence of the company or its servants. Railroad v. Lockwood, 17 Wall. 357, 21 L. Ed. 627; Bank of Kentucky v. Adams Ex. Co., 93 U. S. 174, 23 L. Ed. 872. Nevertheless the release would have been valid and enforceable as releasing the company from loss and damage not the result of negligence. It is in general words, and does not, in terms, purport to release the company from liability for negligence. It should therefore be construed consistently with law. A release in like terms was construed as not extending to loss arising from negligence by the lessor or his servants in Railroad v. Lockwood, 17 Wall. 337, 362, 21 L. Ed. 627, and in Bank of Kentucky v. Adams Ex. Co., 93 U. S. 174, 181, 23 L. Ed. 872, where the court said, “It is not to be presumed the parties intended to make a contract which the law does not allow.” But the plaintiff did not refuse to sign the release because too general, or for any” reason of form. The ground upon which he acted is indicated by the words he wrote across the release, “Provided the baggage is delivered on time and in, good condition.” If he had expressed a willingness to sign a release limited in terms as the law' would limit this one, we would be slow to hold him in fault for not signing one subject to misconstruction. Reverse, and remand for a new trial.