Opinion
No. 28054
January 16, 1951.
APPEAL FROM THE CIRCUIT COURT, CITY OF ST. LOUIS, IVAN LEE HOLT, J.
Mattingly, Boas Richards, and Lloyd E. Boas, all of St. Louis, for appellant.
Warner Fuller, and Arnot L. Sheppard, of St. Louis, for respondent.
This is an action by plaintiff to recover damages for the loss of certain personal effects out of her luggage while the same was in the possession and control of one of defendant's red caps at Union Station in St. Louis, Missouri.
The loss occurred on February 1, 1948. Plaintiff, Louise B. Tilson, a resident of Kansas City, Missouri, was traveling on a through ticket from Washington, D.C., to Kansas City. From Washington she traveled on a train of the Baltimore and Ohio Railroad Company to St. Louis, where she transferred to a train of the Missouri Pacific Railroad Company for Kansas City.
Defendant, Terminal Railroad Association of St. Louis, maintains and operates what is known as Union Station in St. Louis, which is the point of destination or origin as the case may be for the passenger trains of all the railroads serving the city. In connection with such facility it has in its employ a number of red caps, who offer their services in carrying luggage and the like to such of the persons using the station as may desire to engage them.
Upon her arrival at St. Louis plaintiff had a wait of some fifty minutes before the Missouri Pacific train for Kansas City was due to leave. She had two pieces of hand luggage with her in the car; and when the Baltimore and Ohio train came to a stop in the station, the porter carried the two pieces out of the car and set them down on the platform upon which the passengers were to alight.
As plaintiff stepped down from the car she was approached by one of defendant's red caps, who offered his services and was employed to transfer her bags to the Missouri Pacific train on which her space had already been reserved. He thereupon loaded her bags on a truck and gave her two claim checks with the advice that he would meet her in twenty minutes at the gate leading out from the midway to the track upon which the Missouri Pacific train was being made up. Nothing was said between plaintiff and the red cap regarding the value of the bags or their contents, or regarding the charge she would be expected to pay for the red cap's services. As a matter of fact, plaintiff admitted that she had had no thought of declaring any particular value upon her bags for the reason that she had been totally unaware of the existence of any tariff or limitation of liability in such respect.
After turning the bags over to the red cap, plaintiff walked back to the waiting room, where the red cap shortly came to her and informed her that while she had been occupied in rendering service to another person, the bags had disappeared from his truck and could not be located. Plaintiff was thereupon taken to the station master's office, where she gave a description of the contents of her bags, and then boarded her train and went on to Kansas City without them. A few days later her bags were delivered to her in Kansas City with all their contents intact except for certain articles of jewelry valued at $2,885.
The whole question in the case was one of the amount that plaintiff was entitled to recover.
At the time in question there was a tariff in effect (Local Passenger Tariff No. 9), which had been issued by the Interstate Commerce Commission, and which prescribed the charges that defendant's red caps might make for the handling of hand baggage and other personal effects of passengers. Under the terms of such tariff it was provided that the red cap's charge for his service would be at the rate of ten cents for each piece of luggage handled, and that defendant's liability would be limited to $25 for each bag or parcel unless a greater value was declared in writing by the passenger. In the event a greater value was declared, an additional charge of ten cents per bag or parcel would be made for each $100 or fraction thereof above the $25 so declared.
Defendant offered in evidence a copy of the tariff duly certified by the Secretary over the seal of the Interstate Commerce Commission. While the tariff was excluded at the trial, there was no question of its existence, but instead the exclusion was put upon the ground that the matters involved in the particular transaction were purely intrastate as to have rendered the tariff inapplicable.
This was in accord with plaintiff's theory that the transaction between herself and the redcap was a mere contract of bailment which was not only made but intended to be wholly performed in Missouri, and which was entirely separate and distinct from plaintiff's contract for her own interstate transportation.
Defendant contended, on the other hand, that plaintiff was bound, and the case governed, by the provisions of the tariff, and that in the absence of a greater declared valuation, its liability was limited to $25 each for the two bags and their contents, or to a total of $50.
The court submitted the case upon plaintiff's theory, and a verdict was returned in favor of plaintiff, and against defendant, in the sum of $2,885. In due time defendant filed its motion for judgment in accordance with its motions for a directed verdict for plaintiff for $50, or, in the alternative, for a new trial. The court overruled the motion for judgment, but sustained the motion for a new trial upon the ground of error in the exclusion of the tariff and in the submission of the case upon plaintiff's theory of recovery. Plaintiff thereupon gave notice of appeal from the order sustaining the motion for a new trial, and by proper successive steps has caused the case to be transferred to this court for our review.
It could be no ground for denying the application of the tariff that plaintiff had no actual knowledge of its existence. Once a regulation limiting liability is filed with the Interstate Commerce Commission in compliance with law, it becomes binding on the carrier and the passenger alike, whether or not the latter is aware of the limitation. In other words, where the carrier, as in this instance, files a tariff giving a choice of rates based on a difference in declared valuation, the passenger is to be charged with notice that the risk which the carrier assumes will be based on the rate he pays for the service rendered. Boston and Maine Railroad v. Hooker, 233 U.S. 97, 34 S.Ct. 526, 58 L.Ed. 868; Wright v. Southern Pac. Co., 181 Mo.App. 137, 167 S.W. 1137; 13 C.J.S., Carriers, § 877, page 1706.
The question of whether the tariff is controlling in the case at bar is therefore reduced to one of whether, in undertaking to handle plaintiff's luggage, the red cap was engaged in the furtherance of interstate commerce. Of this there would seem to be no room for doubt. That plaintiff's journey was interstate is of course conceded. In making her journey plaintiff had the right to carry the two pieces of hand baggage with her in the cars of the successive trains upon which she rode; and the service of the red cap in transferring her luggage from the one train to the other for the completion of her journey was, by both reason and precedent, so closely related to her own physical transportation in the cars as to have been essentially a part of such transportation. Indeed it is upon such precise theory that the charges for such service as the red cap rendered on the occasion in question are subject to regulation by the Interstate Commerce Commission. Stopher v. Cincinnati Union Term. Co., Inc., 246 I.C.C. 41; Williams v. Jacksonville Terminal Co., 315 U.S. 386, 397, 62 S.Ct. 659, 86 L.Ed. 914.
It was therefore error to exclude the tariff, and the court acted properly in recognizing the fact that the error had been committed. Birmingham Terminal Co. v. Wilson, 249 Ala. 397, 31 So.2d 563. By the same token it was also error to have submitted the case by instructions for plaintiff which were drawn in disregard of the limitation of liability which the tariff contained.
In relieving against the error which had been committed, the court did not see fit to grant defendant's motion for the entry of judgment in accordance with its motions for a directed verdict, but instead undertook to correct its mistake by merely sustaining defendant's alternative motion for a new trial. This brings us to the question of what this court's action shall be in the light of the record as it is presented to us.
The new code provides that the appellate court shall examine the transcript on appeal with respect to the presence of errors of such a character as it is entitled to consider, and if it finds that error was committed materially affecting the merits of the action, it shall give such judgment as the trial court ought to have given. Laws Mo. 1943, p. 395, sec. 140(c), Mo.R.S.A. § 847.140(c); Spaeth v. Washington University, Mo.App., 213 S.W.2d 276.
The case is in this court on plaintiff's appeal from the order sustaining defendant's motion for a new trial. Even though defendant itself could not have appealed, Bailey v. Interstate Airmotive, 358 Mo. 1121, 219 S.W.2d 333, 8 A.L.R.2d 710, the appeal by plaintiff has brought up the entire record so as to authorize this court to decide all questions presented for our consideration as we may conclude the trial court should have decided them for the purpose of a correct decision of the case. Hughes v. St. Louis Nat. League Baseball Club, 359 Mo. 993, 224 S.W.2d 989.
By defendant's motions for a directed verdict the court was asked to direct a verdict in favor of plaintiff for the sum of $50. By such action every question was eliminated but the question of the amount which plaintiff should recover, depending. of course, upon the application of the tariff. On what are thus the admitted facts of the case it appears as a matter of law that plaintiff should recover the sum of $50. There is actually nothing to be retried, and the order granting the new trial should therefore be reversed and the cause remanded with directions to the trial court to enter final judgment in favor of plaintiff, and against defendant, in the sum of $50. It is so ordered.
ANDERSON, P. J., and McCULLEN, J., concur.