Boone v. Missouri Pac. R. Co.

• Decision Date: 06 June 1924
• Docket Number: No. 18481.,18481.
• Citation: 263 S.W. 495
• Parties: BOONE v. MISSOURI PAC. R. CO.
• Court: Missouri Court of Appeals

263 S.W. 495

BOONE v. MISSOURI PAC. R. CO.

No. 18481.

St. Louis Court of Appeals. Missouri.

June 6, 1924.

Rehearing Denied July 11, 1924.

Appeal from St. Louis Circuit Court; George E. Mix, Judge.

"Not to be officially published."

Action by Byrd J. Boone against the Missouri Pacific Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

James F. Green and M. U. Hayden, both of St. Louis, for appellant.

Theodore Rassieur and Thomas Bond, both of St. Louis, for respondent.

NIPPER, C.

Plaintiff brought this action against defendant to recover for the loss of the contents of a trunk which defendant undertook to carry as baggage for plaintiff from Jefferson City, Mo., to Sedalia, Mo. Plaintiff alleges that defendant, in disregard of its duty, wrongfully delivered the trunk and its contents to one John H. Clark, and did not deliver it to plaintiff for more than a month thereafter, and that when it was delivered it was in a broken and damaged condition, with certain articles of wearing apparel missing of the reasonable value of $1,398.

Plaintiff recovered judgment for $1,000 with interest, and defendant appeals.

The answer to plaintiff's petition set up as a defense that, under and by virtue of the provisions of an order of the Director General of Railroads, and certain rules and tariffs promulgated in accordance with the:nterstate Commerce Act (U. S. Comp. St. § 8563 et seq.), and the Federal Control Act (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 3115 1/3a-31152 1/3p), it was not liable for more than $100, because defendant, at the time she became a passenger, did not pay any excess value, and that such rules and tariffs governing the transportation of bag gage over this line of railroad between Jefferson City, Mo., and Sedalia, Mo., were in force and effect at the time plaintiff suffered the loss. In other words, the answer sets ur. all averments sufficient to bring it within the provisions of the tariff rates and regulations on file with the Interstate Commerce Commission and the Public Service Commission of Missouri. Defendant contends further that in any event, section 10449, H. S. Mo. 1919, limited its liability to a sum not to exceed $150.

Plaintiff, on the 3d day of January, 1922, purchased a ticket from Jefferson City, Mo., to Sedalia, Mo., over defendant's line of railroad, and delivered to defendant's agent at Jefferson City, her trunk, containing certain wearing apparel, to be transported over defendant's railroad to Sedalia, Mo. The trunk was checked at Jefferson City and duly transported to Sedalia, and was received by defendant's agent at Sedalia on the same day and placed in defendant's baggageroom in its station at Sedalia. While the trunk was in this baggageroom, one John H. Clark removed the check which had been attached to the trunk at Jefferson City and substituted another, the duplicate of which latter check Clark kept in his possession. Some time during the night of January 3d, or early morning of January 4, 1922, this trunk was delivered by defendant's agent at Sedalia, Mo., to a local drayman acting as the agent of John H. Clark, when said dray man presented the duplicate of the check held by Clark and which had been in the possession of Clark. Clark then caused the trunk to be shipped out of Sedalia by way of another railroad. About a month later the trunk was recovered and returned to plaintiff minus the contents above referred to. Plaintiff never surrendered the check she held, but when she presented it at Sedalia for the purpose of obtaining her trunk she was first informed that it had not arrived. and then later told that it had been stolen. Plaintiff did not know John E. Clark, and had never authorized any one to deliver the trunk to him, and had no knowledge that it had been so delivered until she was informed by defendant's agent at Sedalia. Plaintiff had no conversation with the agent at Jefferson City where she purchased the ticket, and made no declaration of value on the trunk or its contents.

The defendant offered in evidence certain baggage tariffs purporting to have been filed with the Interstate Commerce Commission by the Director General of Railroads, and a certain decision of the Public Service Commission as well as certain orders of said commission relative to railroad rates in Missouri. The court sustained objections to all these offers of testimony made by the defendant for the purpose of fixing its liability at $100 under the provisions of the Interstate Commerce Act.

After defendant's demurrers offered at the close of the plaintiff's case and at the close of the whole case were overruled, the case was given to the jury permitting a recovery for the fair and reasonable value of the articles missing from plaintiff's trunk when it was returned to her, together with 3 per cent. interest. After verdict and judgment for plaintiff as aforesaid, and the overruling of defendant's motion for new trial, the case was appealed to this...