Illinois Cent. R. Co. v. Fontaine

• Decision Date: 17 December 1926
• Citation: 289 S.W. 263,217 Ky. 211
• Parties: ILLINOIS CENT. R. CO. v. FONTAINE.
• Court: Kentucky Court of Appeals

289 S.W. 263

217 Ky. 211

ILLINOIS CENT. R. CO. v. FONTAINE.

Court of Appeals of Kentucky.

December 17, 1926

Appeal from Circuit Court, Jefferson County.

Action by Mrs. E. L. Fontaine against the Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions.

Trabue Doolan, Helm & Helm, of Louisville, for appellant.

Furlong & Woodbury, of Louisville, for appellee.

THOMAS C.J.

The appellee and plaintiff below, Mrs. E. L. Fontaine, in the summer of 1917 resided in the city of New Orleans, La. She purchased from the appellant and defendant below, Illinois Central Railroad Company, a round trip ticket to Louisville Ky. and left Louisville on her return trip on June 19, 1917. On the afternoon of June 18, the day before she started on her return trip, she delivered her trunk in the baggage room of defendant at Louisville, but it went upon the same train the next day upon which she returned and arrived promptly in New Orleans. Plaintiff in packing her trunk put therein a small box containing five pieces of valuable jewelry, consisting of a brooch worth $500, a diamond ring worth $550, another smaller diamond ring worth $150, and a gold necklace worth $15. When she opened her trunk after it had been delivered to her residence she found the box in the tray where she had put it, but the jewelry had been taken from it. Investigation developed that an employee (but the record does not show that he was a baggage agent), between the time that the trunk was delivered at the depot in Louisville and the time of plaintiff's departure, had opened the trunk in some manner and took the jewelry from the box and appropriated it to his own use. The brooch was afterwards recovered and delivered to plaintiff, but none of the other pieces of jewelry was ever recovered, and plaintiff brought this action against the defendant in the Jefferson Circuit Court to recover the aggregate value of the three lost pieces, amounting to $715, and other items of expense in prosecuting the thief and recovering the brooch.

The court by its instructions eliminated the items of expense sought to be recovered and only submitted to the jury plaintiff's right to recover the value of the lost jewelry if it believed from the evidence that it was taken from the trunk by Steve Meeks, the guilty servant, and there was a verdict in favor of plaintiff for $715, which the court declined to set aside on a motion for a new trial, and from the judgment pronounced thereon defendant prosecutes this appeal, insisting under the facts developed by the record that it was entitled to a peremptory instruction in its favor and for which it moved, but which the court overruled; or if not, that in no event was plaintiff entitled to recover exceeding $100, representing the value of plaintiff's baggage as fixed in and upon her ticket and also the baggage check and in schedules or rules which the defendant had theretofore filed with the Interstate Commerce Commission pursuant to the provisions of the Interstate Commerce Act and its various amendments (U. S. Comp. St. § 8563 et seq.), and to those questions we will briefly address ourselves.

It is conceded by learned counsel for plaintiff that the transportation of baggage in an interstate trip comes within the purview and scope of the Interstate Commerce Act as now amended or as amended at the time of the shipment involved, and that its provisions as well as the rules of the carrier with reference to the matter, issued by it and filed with the Interstate Commerce Commission, together with any order made by the latter, are each and all binding upon both shipper and carrier, and which was so held by the Supreme Court of the United States in the cases of Boston & Maine Railroad Co. v. Hooker, 233 U.S. 97, 34 S.Ct. 526, 58 L.Ed. 868, L. R. A. 1915B, 450, Ann. Cas. 1915D, 593; New York Central Railway Co. v. Beaham, 242 U.S. 148, 37 S.Ct. 43, 61 L.Ed. 210, and Missouri Pacific Railroad Co. v. Boone, 270 U.S. 466, 46 S.Ct. 341, 70 L.Ed. 688, decided by Supreme Court on March 22, 1926. Almost multitudinous are the cases from federal courts as well as state ones holding that such regulations, rules, and orders covering the subject of rates, as well as valuations of ordinary freight shipments, are likewise binding upon the carrier and the shipper, some of which are Adams Express Co. v. Croninger, 226 U.S. 491, 33 S.Ct. 148, 57 L.Ed. 314, 44 L. R. A. (N. S.) 257; Kansas City Southern Ry. Co. v. Carl, 227 U.S. 639, 33 S.Ct. 391, 57 L.Ed. 683; Missouri, Kansas & Texas Ry. Co. v. Harriman, 227 U.S. 657, 33 S.Ct. 397, 57 L.Ed. 690; Northern Pacific Ry. Co. v. Wall, 241 U.S. 87, 36 S.Ct. 493, 60 L.Ed. 905; Georgia, Florida & Alabama Ry. Co. v. Blish Milling Co., 241 U.S. 190, 36 S.Ct. 541, 60 L.Ed. 948, and we would experience no difficulty in concluding that by a parity of reasoning such would be true as to baggage shipments even if the cases, supra, did not expressly so determine. Some of our relevant cases are L. H. & St. L. Ry. Co. v. Johns & Patterson, 201 Ky. 752, 258 S.W. 312, Gardner v. L. & N. R. R. Co., 212 Ky. 540, 279 S.W. 947, and L. & N. R. R. Co. v. Brashear, 289 S.W. 1094, decided December 10, 1926, and not yet [officially] published.

The Supreme Court cases, supra, expressly dealing with baggage, hold, in construing the entire Interstate Commerce Act as amended, that it is competent for the carrier to make rules and file them in the proper manner with the Interstate Commerce Commission limiting and prescribing, not only the weight of the package that it will transport free of charge, but also its valuation, unless the passenger reveals the facts and pays for the excess weight and the increased rate because of the quality of the baggage as prescribed by it in its published and filed rules. Furthermore, it was expressly held in the Hooker Case that it was competent to limit the carrier's common-law liability by the filing of such rules and of which both shipper and carrier must take notice from and after the date of their filing, and that to perform the service contrary to the terms prescribed in the rules was absolutely prohibited by both carrier and shipper or passenger as being an invasion of the equality purpose of the entire Interstate Commerce Act, since such invasions would constitute a discrimination either in favor of the shipper or passenger or the carrier, and which is forbidden by the Interstate Commerce Act even to the extent of making it a high misdemeanor to do so on the part of both carrier and shipper. See 10 C.J. 597, p. 1016, page 601, par. 1026, page 603, par. 1028, and the cases and federal statutes cited in the notes.

It was furthermore held in the Hooker, Beaham, and Boone Cases, supra, and which is also stated in the text in 10 C.J. 1213, in substance, that the effect of permitting the carrier to file regulations as to the passenger's baggage limiting its liability except on payment of specified rates does not change the common-law liability of the carrier as a shipper of freight when done according to the prescribed rules and regulations made under the provisions of the Interstate Commerce Act; but that its responsibility does not attach to that part of the shipment made and done outside or in excess of such provisions, rules and regulations. To illustrate; if the carrier, as was done in this case, files and publishes a rule with the Interstate Commerce Commission that it will not accept baggage for free transportation in excess of 100 pounds, or that it will not accept as baggage under any circumstances certain specified articles, the shipper or passenger can recover on his contract of shipment no more than the amount stipulated and not at all for the forbidden articles when their shipment is concealed from the carrier.

As we said above, the law as so briefly stated is conceded by learned counsel for plaintiff and was likewise so held by the learned trial judge. But counsel insist and the court so held that, notwithstanding the law as so stated, defendant was liable in this case for the full value of the missing jewelry upon the ground that it was stolen by the servant of defendant who performed some kind of labor in its baggage room, and, as the court so held (and which must necessarily be true as a premise before liability can attach), was a theft by the defendant and a conversion by it, and that presents the exclusive and narrow question for our decision.

One of the regulatory provisions filed by defendant with the Interstate Commerce Commission said:

"Money, jewelry, silverware, negotiable paper and like valuables, liquids, explosives, loaded firearms, fragile or perishable articles, should not be inclosed in personal baggage or checked."

Counsel for defendant insist that their client by that provision prescribed that it would not accept any of the articles therein contained as baggage, and, since it eliminated jewelry, there should have been a peremptory instruction exonerating defendant from all liability. The trouble with that contention, as we conclude, is, that the quoted language does not have the effect to, nor is it susceptible to, the interpretation of excluding jewelry as baggage. At most, it is only advisory or admonitory that jewelry should not be shipped as baggage. At any rate, it is clearly susceptible to the latter interpretation, and, since it is the language of the carrier, we conclude it should be so construed; for when it attempts under the provisions of law to limit its common-law liability it should do so by no doubtful language.

Subdivision (2) in rule 8 filed by the defendant with the Interstate Commerce Commission says:

"Subject to the limitations as shown in rules 9, 10, and 12 (not here relevant), one hundred and fifty (

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