Neece v. Richmond Greyhound Lines, Inc. , 246 N.C. 547 ( 1957 )

99 S.E.2d 756 (1957) 246 N.C. 547

Marietta NEECE
v.
RICHMOND GREYHOUND LINES, Inc.

No. 738.

Supreme Court of North Carolina.

September 18, 1957.

C. C. Cates, Jr. and W. R. Dalton, Jr., Burlington, for plaintiff appellant.

Jordan & Wright and Perry C. Henson, Greensboro, for defendant appellee.

RODMAN, Justice.

The loss which plaintiff sustained results from a movement of goods in interstate commerce; hence, the rights of the parties must be determined by the application of appropriate Federal statutes. St. Sing v. Express Co., 183 N.C. 405, 111 S.E. 710; Scott v. Express Co., 189 N.C. 377, 127 S.E. 252; Crompton v. Baker, 220 N.C. 52, 16 S.E.2d 471.

Congress, by the Interstate Commerce Act (Part I, 49 U.S.C.A. §§ 1-27) enacted in 1906, sanctioned a limitation of liability by carriers subject to the Act. Adams Exp. Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314; Boston & M. R. Co. v. Hooker, 233 U.S. 97, 34 S.Ct. 526, 58 L.Ed. 868; Galveston, H. & S. A. R. Co. v. Woodbury, 254 U.S. 357, 41 S.Ct. 114, 65 L.Ed. 301. The Cummins Amendment adopted in 1915 prohibited carriers from limiting their liability. Adams Express Co. v. Darden, 265 U.S. 265, 44 S.Ct. 502, 68 L.Ed. 1010. Neither of these statutory provisions seemed to Congress to accord equitable treatment to both carrier and shipper.

In 1916 the second Cummins Amendment was adopted. It forbids limitation of liability except as there expressly provided for. These several provisions are now codified as 49 U.S.C.A. § 20(11). The provisions of that section material to this case read: "Any common carrier * * * receiving property for transportation * * shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it * * * and no contract, receipt, rule, regulation, or other limitation of any character whatsoever shall exempt such common carrier * * * from the liability imposed; * * notwithstanding any limitation of liability or limitation of the amount of recovery or representation or agreement as to value in any such receipt or bill of lading, or in any contract, rule, regulation, or in any tariff filed with the Interstate Commerce Commission; and any such limitation, without respect to the manner or form in which it is sought to be made is declared to be unlawful and void: * * * Provided, however, That the provisions hereof respecting liability for full actual loss, damage, or injury * * * shall not apply, first, to baggage carried on passenger trains or boats, or trains or boats carrying passengers (emphasis supplied); second, to property * * * received for transportation concerning which the carrier shall have been or shall be expressly authorized or required by order of the Interstate Commerce Commission to establish and maintain rates dependent upon the value declared in writing by the shipper or agreed upon in writing as the released value of the property, in which case such declaration or agreement shall have no other effect than to limit liability and recovery to an amount not exceeding the value so declared or released * * * and any tariff schedule which may be filed with the commission pursuant to such order shall contain specific reference thereto and may establish rates varying with the value so declared and agreed upon * * *."

When these statutory provisions were enacted, the term "common carrier" did not include a motor carrier. In 1935 Congress enacted the Motor Carrier Act, now Part II of the Interstate Commerce Act (49 U.S.C.A. §§ 301-327). The Act, by its terms, applies to the transportation of passengers or property by motor carriers engaged in interstate or foreign commerce. 49 U.S.C.A. § 302. It imposes on the Commission the duty "To regulate common carriers by motor vehicle * * * and to that end the Commission may establish reasonable requirements with respect to continuous and adequate service, transportation of baggage and express * * * and safety of operation and equipment." 49 U.S.C.A. § 304.

49 U.S.C.A. § 316 provides: "It shall be the duty of every common carrier of passengers by motor vehicle * * * to establish, observe, and enforce just and reasonable * * * fares, and charges, and just and reasonable regulations and practices relating thereto, and to the issuance, form, and substance of tickets, the carrying of personal, sample, and excess baggage, the facilities for transportation, and all other matters relating to or connected with the transportation of passengers in interstate or foreign commerce * * *." Other portions of sec. 316 impose responsibility for establishing reasonable rates and facilities substantially in conformity with the provision of other common carriers subject to Part I of the Interstate Commerce Act (49 U.S.C.A. § 6). Transportation without the filing of tariffs is forbidden.

Provision was made for motor carriers to limit their liability by sec. 319 which provides: "The provisions of section 20 (11) and (12) of this title, together with such other provisions of chapter 1 of this title (including penalties) as may be necessary for the enforcement of such provisions, shall apply with respect to common carriers by motor vehicle with like force and effect as in the case of those persons to which such provisions are specifically applicable."

Sec. 20 of Part I authorizing carriers other than motor carriers to limit their liability permits limitation with respect to "baggage carried on passenger trains or boats, or trains or boats carrying passengers." When the Motor Carrier Act was adopted in 1935 and sec. 20 was written as quoted above, the language permitting limitation of liability with respect to baggage of passengers was not expressly enlarged to include baggage carried on motor buses. Did Congress, by making sec. 20 applicable to motor carriers, intend to enlarge the first provision permitting limitation of liability by adding "or motor carriers" so as to read "to baggage carried on passenger trains or boats or motor vehicles, or trains or boats or motor buses carrying passengers?"

We have found no Federal decision or rule which gives a definite answer. Mr. Justice Clark, in a footnote to his opinion in New York, N. H. & H. R. Co. v. Nothnagle, 346 U.S. 128, 73 S.Ct. 986, 989, 97 L.Ed. 1500, quotes from the report of the Congressional Committee accompanying the 1916 amendment to the Interstate Commerce Act thus: "Further, the commission has held that baggage carried on passenger trains upon the ticket of a passenger is within the terms of law. Whether this construction is correct or incorrect, it is palpable that baggage so transported on a passenger fare ought not to be subject to the rule which controls ordinary freight, and in the bill now reported it is excepted in express terms." The report explained the aim of the 1916 legislation: "to restore the law of full liability as it existed prior to the Carmack amendment of 1906, so that when property is lost or damaged in the course of transportation under such circumstances as to make the carrier liable recovery is had for full value or on the basis of full value. From this general rule there is excepted, first, baggage carried on passenger trains. This is done for obvious reasons."

The Ohio courts hold the Act was in effect amended so as to read "or motor buses" as contended by defendant. Patton v. Pennsylvania Greyhound Lines, 75 Ohio App. 100, 60 N.E.2d 945. We reach a different conclusion. Common carriers may, by contract, limit their liability for negligence when expressly so authorized by statute. That was the holding in Boston & M. R. Co. v. Hooker, supra. That case arose under the Carmack Amendment and prior to the adoption of the Cummins Amendments. The rule there enunciated is of course still applicable when the provisions of the Cummins Amendments have been complied with. A carrier may also limit its liability when authorized so to do by a regulatory body with power to grant that privilege. Knight v. Carolina Coach Co., 201 N.C. 261, 159 S.E. 311; Russ v. Western Union Telegraph Co., 222 N.C. 504, 23 S.E.2d 681. The law does not look with favor on provisions which relieve one from liability for his own wrong. Any doubt as to the meaning of the contract or its application will be resolved against the carrier. Union Pacific R. Co. v. Burke, 255 U.S. 317, 41 S.Ct. 283, 65 L.Ed. 656, 657; 13 C.J.S. Carriers § 89; 10 Am.Jur. sec. 1752, p. 456

The fact that the first permission for limitation of liability in the Federal statute is not applicable to baggage transported by motor carriers does not mean that they are not permitted to limit their liability under other portions of the Act. The statute, 49 U.S.C.A. § 319, by express terms declares that motor carriers may do so. The authority of motor carriers to limit their liability is found in the second portion of the provision. Cases recognizing the right of motor carriers and air carriers to limit their liability point to the provisions of the statutes giving the regulatory bodies, Interstate Commerce Commission and Civil Aeronautics Authority, power to regulate rates and conditions of travel as supporting limitation of liability granted in duly filed tariffs. Argo v. Southeastern Greyhound Lines, 72 Ga.App. 309, 33 S.E.2d 730; Gray v. Pennsylvania Greyhound Lines, 177 Pa.Super. 275, 110 A.2d 892; Kellett v. Alaga Coach Lines, 34 Ala.App. 152, 37 So.2d 137; Wilkes v. Braniff Airways, Okl., 288 P.2d 377; Lichten v. Eastern Airlines, 2 Cir., 189 F.2d 939, 25 A.L.R. 2d 1337, and annotations; Herman v. Capital Airlines, D.C., 104 F.Supp. 955; S. Toepfer, Inc., v. Braniff Airways, D.C., 135 F.Supp. 671.

Before a motor carrier can limit its liability for negligent loss or damage to property entrusted to it, it must show: (1) it received the property as a common carrier; (2) it issued a written receipt which contained the asserted limitation; (3) the Interstate Commerce Commission has expressly authorized the limitation which is based on a rate differential.

If each of these conditions is not shown to exist, the asserted limitation has no effect. New York, N. H. & H. R. Co. v. Nothnagle, supra; Caten v. Salt City Movers & Storage Co., 2 Cir., 149 F.2d 428; Union Pacific R. Co. v. Burke, supra; Southeastern Exp. Co. v. Pastime Amusement Co., 299 U.S. 28, 57 S.Ct. 73, 81 L.Ed. 20; Sambur v. Short Lines System of Hudson Transit Lines, Inc., 201 Misc. 595, 112 N.Y.S.2d 514; Sambur v. Hudson Transit Lines, 280 App.Div. 983, 116 N.Y.S.2d 500.

The excerpts from the tariff do not expressly show that it was authorized or approved by the Interstate Commerce Commission, but since it was certified by the Commerce Commission as "issued December 15, 1951, effective February 15, 1952, except Intrastate in Kansas January 1, 1952," we treat it as sufficient to show that the Commission had expressly authorized the tariff on which defendant relies.

Under the common law, carriers were, as an incident of the transportation of passengers, required to carry without additional cost a reasonable amount of a passenger's wearing apparel called baggage. Hannibal & St. J. R. Co. v. Swift, 12 Wall, 262, 20 L.Ed. 423; Bacon v. Pullman Co., 5 Cir., 159 F. 1, 16 L.R.A.,N.S., 578, 14 Ann. Cas. 516, and annotations, certiorari denied 210 U.S. 433, 28 S.Ct. 762, 52 L.Ed. 1136; 13 C.J.S. Carriers § 862, p. 1683. Properties in excess of the reasonable requirements of the passenger were not baggage for which the carrier was liable as an insurer. New York Central & H. R. R. Co. v. Fraloff, 100 U.S. 24, 25 L.Ed. 531.

Plaintiff, under the provisions of her ticket, had a right to carry on the bus with her under her control her baggage. Santa Fe Trail Transp. Co. v. Newlon, 195 Okl. 542, 159 P.2d 713. When so carried, baggage is in the custody of the passenger and no responsibility with respect thereto is imposed on the carrier.

The tariff gave plaintiff the right to check her baggage and to impose on the carrier a liability up to $25 in the event of its loss. The carrier received compensation for this service when it sold plaintiff her ticket. If plaintiff deemed her baggage of greater value than $25, she had a right, by the payment of extra compensation, to impose a liability on the carrier up to $225 in the event of its loss.

Defendant could not deprive plaintiff of any one of the three options which her ticket, the contract of carriage, gave her with respect to her baggage as that term is defined in the tariff. Hence, it is necessary to examine the tariff to see what baggage the tariff deals with. The baggage to which the tariff relates is defined in Rule 4, headed "Limitations": "No single piece of baggage will be accepted that, in its greatest dimensions, exceeds 24 inches in height, and 24 inches in width or breadth, or 45 inches in length * * *" These dimensions have a pertinency to the limitation of liability. Generally those who travel by bus take relatively short journeys; hence, they need but limited quantities of apparel to serve their needs on the journey. A limitation of $225 might reasonably apply to a bag 24 inches square.

The carrier was under no duty to accept for transportation as baggage packages exceeding the dimensions given in the tariff. Defendant had a right under its tariff to prohibit plaintiff taking on the bus with her the wardrobe bag, because of its size. Having availed itself of its right under the tariff and prohibited plaintiff from retaining personal custody of her property, it cannot now use the tariff as a shield to protect it against its negligence. The tariff is not a cloak to be worn or discarded as carrier may elect. Both carrier and passenger are bound by its terms.

Where a carrier of passengers receives and handles a package for a passenger which does not qualify as baggage which the passenger is entitled to have transported free, the carrier is a gratuitous bailee of the package. As a gratuitous bailee, it is liable only if the loss be occassioned by its gross negligence. Perry v. Seaboard Air Line R. Co., 171 N.C. 158, 88 S.E. 156, L.R.A.1916E, 478; Kindley v. Seaboard Air Line R. Co., 151 N.C. 207, 65 S.E. 897, 24 L.R.A.,N.S., 634; Brick v. Atlantic Coast Line R. Co., 145 N.C. 203, 58 S.E. 1073; Trouser Co. v. Seaboard Air Line R. Co., 139 N.C. 382, 51 S.E. 973; 6 Am.Jur. 358.

Plaintiff alleges that her loss is due to defendant's negligence. Defendant denies each of the asserted acts of negligence. There has been no finding with respect to this basic issue. Defendant admits receipt of plaintiff's bag and its failure to return it on demand. This admission is sufficient to take the case to the jury or to require a finding by the court if a jury trial be waived. Perry v. Seaboard Air Line R. Co., supra; Beck v. Wilkins-Ricks Co., 179 N.C. 231, 102 S.E. 313, 9 A.L.R. 554; Hunter Trucking Co. v. Glatzer, 285 App.Div. 314, 136 N.Y.S.2d 857; 6 Am.Jur.459.

If it be found that plaintiff's property was lost by the gross negligence of defendant as alleged, she is entitled to full compensation for her loss.

Error.