Opinion
Opinion filed July 2, 1935. Opinion Modified; Respondent's Motion for Rehearing Overruled July 16, 1935.
1. — Common Carriers — Authority to Limit Liability for Baggage. Common carriers may limit their liability to passengers in the transportation of their baggage under authority of Interstate Commerce Act and the Carmack Amendment to the Hepburn Act June 29, 1906, c. 3591, 34 Stat. 584, 586.
2. — Common Carriers — Method of Limiting Liability for Passengers' Baggage — Notice Thereof to Passengers. Inclusion in the schedule of rates filed with the Interstate Commerce Commission of Regulations affecting passengers' baggage and the limitations of liability with respect thereto is a valid regulation within the meaning of Secs. 6 and 22 of the Interstate Commerce Act, and as such is sufficient to give the passenger notice of such limitation.
3. — Evidence — Tariff Schedules Admissible as Such — Error in Excluding Same. Under the pleadings in this case the tariff schedules and regulations affecting the carrier's liability for passengers' baggage where same had been properly filed with the Interstate Commerce Commission are admissible evidence and the Court erred in excluding them.
4. — Common Carriers — When Relation Terminates as to Passengers' Baggage. Where a terminal railroad is under contract with the initial common carrier to handle the baggage and passengers of the initial carrier at a Union Station and before the point of destination of the passengers and baggage has been arrived at, the operations are still one of Interstate Commerce and as such the rights of the parties are determined by the Interstate Commerce Act.
5. — Common Carriers — Use of Terminals. Union terminals have been frequently held by the Court to be the legitimate agencies in the work of railroad transportation companies in the handling of passengers and baggage of the proprietary companies.
6. — Evidence — Exclusion Of — Showing Relationship Between Terminal and Initial Carrier. The trial court erred in excluding testimony offered by the defendant purporting to show that the passengers and baggage was still in Interstate Commerce when being handled by the terminal company for the initial carrier, it being material to determine from the evidence whether the baggage was in Interstate Commerce at the time or whether the terminal company was holding the baggage merely as a warehouseman as an independent contractor.
Appeal from the Circuit Court of the City of St. Louis. — Hon. John W. Calhoun, Judge.
REVERSED AND REMANDED.
T.M. Pierce, J.L. Howell and Walter N. Davis for appellant.
Defendant offered in evidence, which the trial court rejected on plaintiff's objection, Western Baggage Tariff No. 25-8, etc., to-wit, Rule 10, paragraph A, Rule 11, paragraphs F and G, and Rule 14, paragraph A, which said tariff was filed for and in behalf of the Missouri-Kansas-Texas Railroad Company and other railroads with the Interstate Commerce Commission and approved by it. In rejecting said offer and tariff in evidence, the trial court erred for the reasons following: (a) Under the Federal rule, irrespective of the plaintiff's evidence and the verdict of the jury and the judgment of the State court, all the evidence is considered to determine whether the evidence established interstate transportation, and, if it does, the Federal Act is paramount. The evidence shows that plaintiff's baggage was carried in interstate commerce and that defendant held it for the M.K. T.R.R. Co. in said commerce. B. O.S.W. v. Burtch, 263 U.S. 540, 44 S.Ct. 165, 68 L.Ed. 433; Cox v. M.K. T.R. Co., 76 S.W.2d 411. (b) The Interstate Commerce Act and the Carmack Amendment to the Hepburn Act applies with respect to a passenger's interstate baggage. Boston M.R.R. Co. v. Hooker, 233 U.S. 97, 34 S.Ct. 526, 58 L.Ed. 868. (c) The Missouri-Kansas-Texas Railroad Company carried plaintiff's baggage from Houston, Texas, to St. Louis, Missouri, in interstate commerce. Defendant received said baggage from said railroad and delivered it, free of charge, to plaintiff for said railroad. Defendant thus was acting as said railroad's agent. Under the uncontradicted evidence, the M.K. T.R.R. Co. was a proprietary line in operating the Union Station and Baggage room. U.S. v. Brooklyn Terminal, 249 U.S. 296, l.c. 306, 63 L.Ed. 613, 39 S.Ct. 25. (d) The provision in a tariff schedule, filed with the Interstate Commerce Commission, that the passenger must declare the value of baggage and pay excess tariff for excess liability has been held to be a valid regulation within the meaning of paragraphs 6 and 22 of the Interstate Commerce Act. Both the carrier and the passenger were bound by the provisions of the filed tariffs. As these limited recovery for baggage carried to $100, in the absence of a higher value and the payment of an excess charge, and as no such declaration was made and excess charge paid, that sum only was recoverable. Boston M.R.R. Co. v. Hooker, 233 U.S. 97, 34 S.Ct. 526, 58 L.Ed. 868; Galveston H. S.R. Co. v. Woodbury, 254 U.S. 357, 41 S.Ct. 114, 65 L.Ed. 301; American R. Co. v. Daniel, 269 U.S. 40, 46 S.Ct. 15, 70 L.Ed. 154; Western Union T. Co. v. Esteve Bros. Co., 256 U.S. 566, 41 S.Ct. 584, 65 L.Ed. 1094; Pierce Co. v. Wells Fargo Co., 236 U.S. 278, 35 S.Ct. 351, 59 L.Ed. 576; T. P.R. Co. v. Mugg, 202 U.S. 242, — S.Ct. ___, ___ L.Ed. ___; K.C. So. Ry. Co. v. Carl, 227 U.S. 639, ___ S.Ct. ___, ___ L.Ed. ___; Erie R. Co. v. Stone, 244 U.S. 332, 37 S.Ct. 633, 61 L.Ed. 1173. (e) Tariff schedules are admissible in evidence, and it has been held to be error to exclude such schedules. N.Y.R. Co. v. Beaham, 242 U.S. 148, 37 S.Ct. 43, 61 L.Ed. 210; Southern Express Co. v. Byers, 240 U.S. 612, 36 S.Ct. 410, 60 L.Ed. 825. (f) The United States Supreme Court has held that the limitation of $100 applies to warehousemen. Cleveland St. Louis Ry. Co. v. Dettelbach, 239 U.S. 588, 36 S.Ct. 117, 60 L.Ed. 453. (g) It was within the power of the carrier, under the act, to regulate commerce as amended to limit liability even in a case of negligence by affording the shipper an opportunity to pay a higher rate and secure a higher recovery. American Express Co. v. United States Horse Shoe Co., 244 U.S. 58, 37 S.Ct. 595, 61 L.Ed. 990. (h) Even though the tariff schedules filed with the Interstate Commerce Commission were not posted, yet both the carrier and the passenger were bound by the provisions of the filed tariff. American Express Co. v. United States Horse Shoe Co., 244 U.S. 58, 37 S.Ct. 595, 61 L.Ed. 990. (i) The effect of the tariff schedule cannot be escaped by suing for conversion in trover. American R. Express Co. v. Levee, 263 U.S. 19, 44 S.Ct. 11, 68 L.Ed. 140.
Buder Buder, G.A. Buder, Jr., and Frederick A. Judell for respondent.
(1) Defendant, in receiving plaintiff's baggage from the Missouri-Kansas-Texas Railroad Company, acted as a warehouseman and is liable as such to the plaintiff for negligent loss of the baggage while in its possession. Bowles v. Payne, 251 S.W. 101; Levi Co. v. Railroad, 157 Mo. App. 536; Bell v. Railroad, 6 Mo. App. 363; Gashweiler v. Railroad, 83 Mo. 112; Hubbard v. Railroad, 112 Mo. App. 459. (2) Defendant is not entitled to invoke against plaintiff any limitation of liability which might be available to the Missouri-Kansas-Texas Railroad Company, and the Western Baggage Tariff which was offered by defendant to uphold such limitation was properly excluded. (a) For the purpose of storing baggage of interstate passengers defendant is not a common carrier, subject to regulation under the Act of Congress regulating interstate commerce. Noel v. Westcott Express Co., 95 Misc. 154, 158 N.Y.S. 702; In re Frank Parmelee Co., 12 I.C.C.R. 40; Wylie v. Northern Pacific R. Co., 11 I.C.C.R. 145; McQuat v. Taxicab Co., 145 Minn. 210, 176 N.W. 763; Lawes v. New Orleans Transfer Co., 11 La. App. 170, 123 So. 144; U.S. v. Brooklyn Terminal, added at p. 12 of appellant's brief is not applicable, because there it was admitted that defendant was engaged in interstate commerce, 249 U.S. l.c. 307. The franchise privilege of transportation, as distinguished from storage, cannot be delegated to an independent contractor. Peters v. R.R., 150 Mo. App., l.c. 734-36; Denver Union Term. Ry. v. Cullinan, 210 P. 602. (Colo.). (b) Defendant was not acting in the handling of plaintiff's baggage as agent of the Missouri-Kansas-Texas Railroad Company, but was an independent contractor, and since it neither filed, published, participated in nor concurred in any baggage tariff filed with the Interstate Commerce Commission, the provisions or limitations of such tariff cannot inure to it. In re Peoria Pekin Union Co., 93 I.C.C. Reports 3; State v. Jacksonville Terminal Co., 90 Fla. 721, 106 So. 576; Noel v. Westcott Express Co., supra; Martin v. American Express Co., 19 Wis. 336; Burgess v. Garvin, 272 S.W. 108, l.c. 112; Aubuchon v. Security Const. Co., Inc., 291 S.W. 187, l.c. 189. (3) Under the law of Missouri, which applies to this case, since the storage of plaintiff's baggage was wholly an intrastate transaction, the misdelivery of baggage is a conversion which prevents the defendant from invoking tariff provisions limiting its liability. Boone v. Missouri Pacific R. Co., 263 S.W. 495.
Plaintiff recovered judgment against defendant in his action for the value of certain baggage which had been transported by the Missouri, Kansas Texas Railroad Company from Houston, Texas, to St. Louis, Missouri, and upon arrival delivered by said railroad company to the defendant Terminal Railroad Association of St. Louis, at Union Station in St. Louis, Missouri, for safe keeping and delivery to plaintiff, and which baggage was never delivered though due demand was made by plaintiff.
On March 27, 1931, plaintiff and his wife were at the Rice Hotel in Houston, Texas. Plaintiff had purchased two tickets for transportation by the Missouri, Kansas Texas Railroad Company from Houston, Texas, to St. Louis, Missouri. Plaintiff called the porter of the hotel to get his baggage and have the same checked to St. Louis. The hotel porter, upon checking the same for transportation as baggage for the plaintiff, signed a declaration and stipulation in plaintiff's name, that the value of the baggage did not exceed one hundred dollars, and that in case of loss or damage to such property "claim will not be made for a greater amount." Later, when plaintiff left the hotel, he received from the head porter his railroad ticket and the baggage check of the Missouri, Kansas Texas Railroad Company.
Plaintiff's baggage was carried by the Missouri, Kansas Texas Railroad Company to St. Louis, Missouri, and arrived at the Union Station at about ten o'clock on the evening of March 28, 1931. The baggage was there turned over by the baggage man of the train to a representative of the defendant Terminal Railroad Association of St. Louis, who gave the baggage man a receipt for the same in the name of Dennis O'Toole, railroad baggage agent of the Terminal Railroad Association. Plaintiff went to claim his baggage at Union Station on March 29, 1931, at about nine o'clock A.M. Defendant was not able to locate the baggage and it was never delivered to plaintiff.
Defendant's answer in the case alleges that the transportation of plaintiff's baggage was interstate and was controlled by the Act of the Congress of the United States regarding interstate commerce, and by the rates and tariffs filed with the Interstate Commerce Commission; that the Missouri, Kansas Texas Railroad Company, prior to March 27, 1931, had filed with the Interstate Commerce Commission its local and joint tariffs relative to baggage rules, regulations, rates and charges applying in connection with the transportation of baggage and other articles and property as classified at and between stations on the lines of the issuing, initial and participating carriers, and from stations on such lines to other destinations in the United States and foreign countries, and which tariffs were in full force on March 27, 1931, and prior thereto and thereafter; that said tariffs or schedule of rates referred to, filed with the Interstate Commerce Commission as aforesaid, contains among its provisions as to the transportation of baggage and the liability of defendant therefor, that baggage not exceeding one hundred and fifty pounds in weight and not exceeding one hundred dollars in value, may be checked without additional charge for each adult passenger; and that unless a greater sum is declared by the passenger and charges paid for the excess baggage at the time of delivery to carrier, the value of baggage or property checked for a passenger shall be deemed and agreed to be not in excess of the amount of one hundred dollars, and that the carrier issuing and participating in this tariff shall not assume liability for a greater sum in case of loss or damage.
Plaintiff's reply was a general denial.
At the trial of the case, upon objection by plaintiff, defendant was not permitted to introduce the tariffs pleaded in defendant's answer as having been filed with the Interstate Commerce Commission, and the court further excluded testimony offered by defendant on the question of agency of the defendant in handling plaintiff's baggage for the Missouri, Kansas Texas Railroad Company.
The uncontroverted value of the baggage and its contents at the time of the loss was the sum of $849, for which amount, with interest and costs, the trial court, a jury having been waived, entered judgment for the plaintiff.
The only issue raised here on appeal is one of law, namely, whether plaintiff's recovery is limited in amount to the one hundred dollars set out in the declaration of value, signed by the hotel porter in Houston at the request of the Missouri, Kansas Texas Railroad Company, or by the tariffs published by the Missouri, Kansas Texas Railroad Company under which the baggage was transported from Houston, Texas, to St. Louis, Missouri, which tariffs, as indicated above, the defendant sought to introduce in evidence but which, upon objection by plaintiff, were excluded by the trial court.
Appellant Terminal Railroad Association of St. Louis insists here on appeal, as set out in its answer in the trial court below, that the recovery of plaintiff should be limited to the sum of one hundred dollars in value in that at the time of plaintiff's alleged loss of the baggage the Missouri, Kansas Texas railroad company had published and filed with the Interstate Commerce Commission certain schedules giving the rates, fares and charges for transportation, etc., including all terminals, storage and other charges, under which schedules the liability of the defendant railroad association under the facts in the instant case was limited to one hundred dollars; and that the action of the trial court in refusing to permit such schedules to be introduced in evidence was error prejudicial to the rights of the said defendant railroad association. In our view the point is well taken.
It is no longer open to question but that the limitation of liability of carriers for passengers' baggage is covered by the Interstate Commerce Act and the Carmack Amendment to the Hepburn Act, June 29, 1906, c. 3591, 34 Stat. 584, 586. Under sec. 6 of the Interstate Commerce Act carriers must include in the schedules of rates filed, regulations affecting passengers' baggage, and the limitations of liability as well as a provision in the tariff schedules that a passenger must declare the value of his baggage and pay the stated excess charges for excess liability over the stated value to be carried free, is a regulation within the meaning of secs. 6 and 22 of the Interstate Commerce Act, and as such is sufficient to give the passenger notice of such limitation. [Boston Maine Ry. Co. v. Hooker, 233 U.S. 97, 34 S.Ct. 526, L.Ed. 868.] Under the pleadings in the case the said tariff schedules were admissible in evidence and the court erred in excluding them. [N.Y. Ry. Co. v. Beham, 242 U.S. 148, 37 S.Ct. 43, 63 L.Ed. 210; Southern Express Co. v. Byers, 240 U.S. 612, 36 S.Ct. 410, 60 L.Ed. 825.]
But respondent insists that appellant was not entitled to invoke against him any limitation of liability which might have been available to the Missouri, Kansas Texas Railroad Company because the appellant Terminal Railroad Association, for the purpose of storing the baggage of interstate passengers, is not a common carrier subject to the regulations under the Act regulating interstate commerce.
We have examined the cases which respondent has cited in support of this contention and find no one of them in point. They are cases dealing with baggage being transferred from a terminal depot to some specified residence or place of business. In such cases it is obvious that the contract of carriage had been completed when the baggage was claimed at the terminal depot, and the cases are therefore not in point. But here the contract of carriage of the passenger and his baggage was interstate and included holding of the baggage at the Union Station in St. Louis for a period of twenty-four hours after its arrival there. Since the loss of the baggage admittedly occurred prior to the lapse of the twenty-four hours after its arrival at the Union Station in St. Louis — for plaintiff himself demanded the baggage prior to that time — the Missouri, Kansas Texas Railroad Company, and the defendant as its agent in the handling of plaintiff's baggage at Union Station at St. Louis, are entitled to the benefit of the contract of carriage which included the transportation of the baggage in question under the provisions of the Interstate Commerce Act, and such baggage tariffs, if any, which may have been included in the tariffs filed by the Missouri, Kansas Texas Railroad Company with the Interstate Commerce Commission.
We have not overlooked respondent's contention that the appellant in this case is answerable to the respondent for the loss of his baggage as a warehouseman and not as a carrier, and that the appellant at no time occupied the position of a common carrier with relation to the baggage, but that its first connection therewith was when it received the same from the baggage car of the Missouri, Kansas Texas Railroad Company in the Union Station at St. Louis, giving its receipt therefor to the railroad company, and that, therefore, the relation of the defendant to the baggage was purely intrastate.
We have pointed out above that the defendant in receiving the baggage from the baggage car of the railroad company in the Union Station, received it while the baggage was still in interstate commerce because the contract of carriage provided not alone for the carrying of the baggage to the Union Station at St. Louis, but for the holding of the baggage for the call of the passenger therefor for a period of twenty-four hours after its arrival at the Union Station. Therefore the duty of the carrier had not terminated, and liability with respect to plaintiff's baggage was still determinative under the Interstate Commerce Act and not under the rules applying to warehousemen.
Union terminals have been frequently before the courts for consideration, and have always been recognized and approved as legitimate agencies in the work of railroad transportation. [U.S. v. Term. Ry. Assn. of St. Louis, 224 U.S. 383; State v. Term. Ry. Assn., 182 Mo. 284, l.c. 299, 81 S.W. 395; Birdwell v. Gate City Term. Co. (Ga.), 10 L.R.A. (N.S.) 909; Indianapolis Union Ry. Co. v. Cooper, 6 Ind. App. 202; Mayor v. Ry. Commissioner, 113 Mass. 161; Union Depot Co. v. Morton, 83 Mich. 265; Detroit Station v. Detroit, 88 Mich. 347; State v. St. Paul Union Depot Co., 42 Minn. 142; Riley v. Union Station Co., 71 S.C. 457; Ryan v. Term. Co., 102 Tenn. 124; Joy v. St. Louis, 138 U.S. 1; C.R.I. P. Ry. Co. v. Union Pac. Ry. Co., 47 F. 15; S.Ct. 51, Fed. Rep. 309, 163 U.S. 564.] And the Terminal Railroad Association of St. Louis and its subsidiaries have been directly held to be a common carrier by railroad, and like the proprietary companies, are subject to regulation by the Interstate Commerce Commission. [Term. Ry. Assn. of St. Louis v. U.S., 266 U.S. 17, l.c. 31.]
The defendant was not permitted to adduce proof that the service it rendered in taking possession of plaintiff's baggage upon its arrival at the Union Station for the purpose of holding same until delivery thereof to plaintiff, was under contract with the various railroad companies (including the Missouri, Kansas Texas Railroad Company), as agent for them and not on its own account. How respondent can justify this exclusion in light of the fact that it sought to hold the defendant company as warehouseman upon the theory that the defendant company, in rendering its service, was an independent contractor, is not made clear to us, and with this issue raised by the plaintiff the exclusion of the testimony offered by defendant below was error.
What effect, if any, the ruling in the case of Cleveland, Cincinnati, Chicago St. Louis Ry. Co. v. Dettlebach, 239 U.S. 588, that upon the facts in that case the limitation of liability of the railroad company to the shipper applied not only to the railroad company as a carrier while the goods were in transit, but also to its responsibility as a warehouseman while holding the goods in storage after arrival at destination, may have when all competent evidence shall have been introduced in the event of another trial of this case, is obviousy not before us.
For the errors noted the judgment is reversed and the cause remanded. Hostetter, P.J., and McCullen, J., concur.