Louisville v. Nicholai
| Decision Date | 01 March 1892 |
| Citation | 30 N.E. 424,4 Ind.App. 119 |
| Court | Indiana Appellate Court |
| Parties | LOUISVILLE, N. A. & C. RY. Co. v. NICHOLAI. |
OPINION TEXT STARTS HERE
Appeal from circuit court, Marion county; E. A. BROWN, Judge.
Action by Osceola Nicholai against the Louisville, New Albany & Chicago Railway Company to recover the value of baggage alleged to have been lost in transit. From an order denying a motion for a new trial, defendant appeals. Affirmed.
E. C. Field and A. Q. Jones, for appellant. Beckett & Doane, for appellee.
This is an action by the appellee against the appellant, as a common carrier, to recover the value of certain baggage alleged to have been lost in its transmission from the city of Portland, Or., to the city of Indianapolis. The material averments of the complaint are that on the 19th of October, 1889, the appellant, in consideration of $49 to it paid undertook to safely carry the appellee and her baggage from Portland, Or., to Indianapolis, Ind., by way of the Northern Pacific Railroad, the Wisconsin Central Railroad, and the appellant's own railroad; that said baggage consisted of one trunk containing the appellee's wearing apparel and other articles of personal use and comfort; that the appellee delivered said baggage to the appellant at Portland, Or., and received a check therefor (No. 34,850) for the carriage of the same to Indianapolis over said route; that the appellee, on arriving at Indianapolis, presented said check to the appellant's proper agent, and received said trunk, but on opening it discovered that there had been abstracted therefrom, en route, a sealskin cloak, set of diamond ear-rings, diamond scarf-pin, gold watch-chain, three gold rings, set of turquoise ear-rings, gold breastpin, scarf-pin, two pairs of cuff-buttons, gold thimble in ivory case, silver sugar bowl, silver cream pitcher, silver spoon holder, all of the value of $330; that the appellee notified the appellant of the loss of said articles, and demanded that the same be delivered to her, or that she be paid the value thereof, all of which the appellant refused to do. Wherefore said baggage has been wholly lost to the appellee, to her damage $500. A demurrer to the complaint for want of facts was overruled, and exception taken. An answer of general denial was then filed to the complaint, cause submitted to a jury for trial, and verdict returned in favor of the appellee for $354.75. A motion for a new trial by the appellant was overruled, and judgment rendered upon the verdict for the appellee.
The appellant has assigned as error the overruling of the demurrer to the complaint and the overruling of the motion for a new trial. The sufficiency of the complaint is not discussed by counsel, and we therefore treat that portion of the error assigned as waived. Upon the trial the appellee submitted proof in support of the allegations of her complaint, and rested. The appellant then introduced as its only evidence the passenger ticket by it sold to the appellee in consideration of the $49 paid by the latter, as alleged in the complaint. Said ticket, among other things, contained the following words: “None of the companies represented in this ticket will assume any liability on baggage except for wearing apparel, and then only for a sum not exceeding $100.00.” Following this is the signature of “Charles S. Fee, Gen'l Pass & Ticket A.,” and immediately after that the following: The effect of this agreement upon the amount of loss sustained by the appellee is the question presented for our decision.
A passenger ticket may be in such form as to give to it the nature of a receipt, rather than contract; its office being, in such case, mainly that of a token or voucher to enable persons having charge of carriages or vessels of common carriers to recognize the persons who are entitled to be carried as passengers. Thomp. Carr. 65-423; Redfield, R. R. (6th Ed.) 303; Hutch. Carr. (2d Ed.) 580; Quimby v. Vanderbilt, 17 N. Y. 306; Railroad Co. v. Campbell, 36 Ohio St. 647. When a passenger has bought and been given a ticket unlimited upon its face, evidence of rules or regulations of the carrier, tending to defeat the apparent right conferred by the ticket, is not admissible, if the passenger was not informed of them; and it has often been held that a passenger is not bound by limitations or conditions printed on the back of his ticket, which he did not see nor know of. And so, also, if any attempt at imposition or deception appears, or any device be resorted to, calculated to mislead the passenger or shipper, or keep from his notice any matter of the printed or written indorsements on the receipt or ticket which are intended to affect the liability of the carrier, they will not avail the latter, if they have been overlooked by the former. Hutch. Carr. (2d Ed.) §§ 245-580; Railroad Co. v. Spicker, 105 Pa. St. 142; Maroney v. Railway Co., 106 Mass. 153;Brown v. Railroad Co., 11 Cush. 97;Malone v. Railroad Co., 12 Gray, 388; Henderson v. Stevenson, L. R. 2 H. L. Sc. 470; Railway Co. v. Stevens, 95 U. S. 655;Rosenfield v. Railway Co., 103 Ind. 121, 2 N. E. Rep. 344. On the other hand, when a passenger ticket is free from anything calculated to mislead or deceive the person buying it, and professes to and does set out a special contract between the carrier and passenger, so legibly and plainly that it will be carelessness on the part of the latter to overlook it, there can be no good reason why such a “contract ticket” should not be held conclusive upon the passenger, as bills of lading or the receipts of the common carrier are upon the shipper or bailor of goods. In such a case the passenger could not be heard to say that he did not read the special contract contained in his ticket. He would be expected to read it; and if he had the opportunity to read it, and failed to do so, he would be bound by its stipulations, nevertheless. Pennington v. Railroad Co., 62 Md. 95;Hill v. Railroad Co., 63 N. Y. 101;Lillis v. Railway Co., 64 Mo. 464;Downs v. Railroad Co., 36 Conn. 287;Sherman v. Railroad Co., 40 Iowa, 45;Fonseca v. Steam-Ship Co., 153 Mass. 553, 27 N. E. Rep. 665; Black v. Railway Co., 111 Ill. 351;Jones v. Railroad Co., 89 Ala. 376, 8 South. Rep. 61;Germania, etc., Co. v. Memphis, etc., R. Co., 72 N. Y. 90;Kirkland v. Dinsmore, 62 N. Y. 171;Railway Co. v. Harwell, 91 Ala. 340, 8 South. Rep. 649;McFadden v. Railway Co., 92 Mo. 343, 4 S. W. Rep. 689;Railway Co. v. Weakly, 50 Ark. 397, 8 S. W. Rep. 134; Hutch. Carr. (2d Ed.) §§ 240-581. The contract between the carrier and the passenger need not be written. A verbal contract is as obligatory as a written one, when established. The only difference is in the manner and in the certainty of the proof. The fundamental idea of a contract involves the meeting of the minds of the parties, and requires a mutuality of assent; but the proof of the agreement, if otherwise satisfactory, need not be written. Where, however, the contract is not in writing, the proof must be clear of assent to the terms proposed by the carrier; for the law, having imposed an important duty upon the carrier on grounds of public policy, will not permit it to divest itself of its responsibilities, and throw the loss upon the employer, where the proof that the latter has so agreed is doubtful. Railroad Co. v. Morrison, 19 Ill. 136;Gould v. Hill, 2 Hill, 623;Roberts v. Riley, 15 La. Ann. 103; Hutch. Carr. (2d Ed.) § 242. The terms and conditions of the ticket in the case at bar, so far as we can judge from the record, were all plainly set out on the face of the ticket, and contained over 300 words; and, as we have already shown, the signature of the appellee is attached to the contract. We speak of this because it is the fact. We do not say that her signature was necessary. See Fonseca v. Steam Ship Co., supra; Quimby v. Railroad Co., 150 Mass. 365, 23 N. E. Rep. 205, and cases there cited; Hutch. Carr. (2d Ed.) 240-243.
The liability of the common carrier is by law an unusual and extraordinary one. The common carrier is by the law regarded as a practical insurer of the goods against all losses of whatever kind, with the exception of those arising from what is known as the and those caused by the public enemy, to which in modern times has been added those arising from the act of the public authority, those arising from the act of the shipper, and those arising from the inherent nature of the goods; and it is now well settled that in the carriage of a passenger's baggage the carrier incurs the full responsibility of the common carrier of goods. The rigorous accountability to which common carriers of goods and baggage have been held, as against all losses save of the kind we have named, has been relaxed so far as to allow that liability to be qualified to some extent by contract between the carrier and the employer. Whether the carrier could by contract exempt itself from liability for losses arising from its own negligence was for some time a question not well settled. The great weight of authority in this country now is in favor of excluding negligence as an element of contract between the carrier and the employer, and of holding the former to a rigid responsibility for any degree of negligence, without the power by contract to divest itself of it. Railroad Co. v. Lockwood, 17 Wall. 357;Bartlett v. Railway Co., 94 Ind. 281;Express Co. v. Harris, 120 Ind. 73, 21 N. E. Rep. 340; Railway Co. v. Faylor, 126 Ind. 126, 25 N. E. Rep. 869; School Dist., etc., v. Boston, etc., R. Co., 102 Mass. 552;Railway Co. v. Chapman, 133 Ill. 96, 24 N. E. Rep. 417; American Exp. Co. v. Second Nat. Bank, 69 Pa. St. 394; Willis v. Railway...
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