Kellett v. Alaga Coach Lines

• Decision Date: 05 October 1948
• Docket Number: 4 Div. 61.
• Citation: 34 Ala.App. 152,37 So.2d 137
• Parties: KELLETT v. ALAGA COACH LINES, Inc.
• Court: Alabama Court of Appeals

37 So.2d 137

34 Ala.App. 152

KELLETT v. ALAGA COACH LINES, Inc.

4 Div. 61.

Alabama Court of Appeals

October 5, 1948

Oscar L. Tompkins and J. Robert Ramsey, both of Dothan, for appellant.

T E. Buntin, of Dothan, for appellees.

Hill, Hill, Stovall & Carter, of Montgomery, for Alabama Bus Ass'n., amicus curiae.

CARR Judge.

The plaintiff below sued the defendant for $1000 as full value for a lost trunk and its contents. The baggage had been checked by her with the defendant in connection with and incident to her interstate journey by passenger bus.

The carrier countered to the complaint by pleading its tariff schedule which was on file with and approved by the Interstate Commerce Commission. There was also included a plea which sets out the terms of the duplicate check which the carrier gave the passenger and which stipulates the limited liability provided in the tariff.

To these pleas the plaintiff filed replications which in effect reply that the carrier failed in the legal requirement to give her a choice of rates so that she could declare full coverage on her baggage.

The court sustained demurrers to the replications, and thereupon the plaintiff took 'a non-suit with bill of exceptions.'

On this appeal we are called upon to review only the rulings of the lower court which superinduced or occasioned the taking of the non-suit. Cauble v. Boy Scouts of America, 250 Ala. 152, 33 So.2d 461.

The tariff in question in part stipulates:

'Rule No. 7 * * *

'(e) Value limitations:

'Property for one passenger declared to exceed two hundred and twenty-five ($225.00) dollars in value for one or more pieces will not be accepted. Nor will any single piece of baggage be accepted for checking and transportation that is valued at more than two hundred twenty-five ($225.00) dollars regardless of the number of tickets presented for checking.' 'Rule No. 8. Free Baggage Allowance:

'(a) Except as noted below and subject to limitations shown in Rules 5, 6 and 7, one hundred fifty (150) pounds of baggage or property not exceeding Twenty-Five Dollars ($25.00) in value, may be checked without additional charge for each adult passenger and seventy-five (75) pounds, not exceeding Twelve and 50/100 ($12.50) dollars in value, for each child traveling on a half fare ticket.'

'Rule 9. Charges for baggage of excess weight and/or excess value:

'Rates and charges shown herein are payable in lawful United States Money.

'Baggage or property which may be transported in regular baggage service, exceeding the free weight or value allowance as stated in Rule 8 will be charged for as excess baggage as follows: * * *

'(c) Excess value: Unless a greater value is declared by a passenger and charges paid for excess value at time of delivery to carrier the value of property belonging to, or checked for a passenger, shall be deemed and agreed to be not in excess of the amounts specified in Rule 8, and carriers parties to this tariff will not accept liability for a greater sum in case of loss or damage.

'(d) If passenger declares, according to the form prescribed by checking carrier, a greater value than specified in Rule No 8, there will be a charge, at the rate of (10¢) Ten Cents for each additional one hundred dollars ($100.00) valuation, or fraction thereof, total valuation not to exceed limitations in Rule 7.'

'Rule 12. * * *

'(e) Carriers parties to this tariff will Not accept a greater liability than two hundred and twenty-five ($225.00) dollars on any single piece of baggage or property, or a greater value than two hundred and twenty-five ($225.00) dollars for each full fare ticket or one hundred twelve and 50/100 ($112.50) dollars for each half fare ticket regardless of the number of pieces of baggage, and in no event shall the liability exceed the actual value of the property at the time of checking. (Subject to provisions of Rules 8 and 9).'

Our review here is governed by the Federal Law. Grant v. American Ry. Ex. Co., 126 Me. 489, 139 A. 784; Sayles v. Interstate Busses Corp., 187 Misc. 286, 66 N.Y.S.2d 377; Boston & Maine R. Co. v. Hooker, 233 U.S. 97, 34 S.Ct. 526, 58 L.Ed. 868, L.R.A.1915B, 450, Ann.Cas.1915 D, 593.

Limitations of liabilities of common carriers for the loss or damage to baggage of interstate passengers come under the provisions and terms of the Carmack Amendment. 49 U.S.C.A. § 20(11).

By the 1935 addition or amendment to the above act Congress assumed control of the transportation of passengers or property by motor carriers engaged in interstate commerce. Part II, 49 U.S.C.A. § 301 et seq.

Section 317(a) of the amended act provides: 'Every common carrier by motor vehicle shall file with the Commission, and print, and keep open to public inspection, tariffs showing all the rates, fares, and charges for transportation, and all services in connection therewith, of passengers or property in interstate or foreign commerce * * *'

The authorities have applied this section to sustain limitations of liability on the part of common carriers in cases where passengers' baggage was involved. The inclusion of baggage carriage is considered an essential and necessary part of the transportation of passengers, and the regulations which determine and fix the rate of passage fare takes into account the responsibility assumed by the carrier and the value of service rendered to the passenger.

When lawfully established the tariff forms a part of the contract of travel. It has the effect of law and its provisions are binding upon both the passenger and the carrier. Pennsylvania Greyhound Lines, Inc., v. Wells, D.C. Mun.App., 41 A.2d 837; Galveston, H. & S. A. Ry. Co. v. Woodbury et al., 254 U.S. 357, 41 S.Ct. 114, 65 L.Ed. 301.

It is well settled also that it is not essential to the applicability of the tariff limitations that the passenger be informed that a choice of rates is available, the presumption being that he knew the provisions of such schedule. Gulf, C. & Santa Fe Ry. Co. v. McCandless, Tex.Civ.App., 190 S.W.2d 185; Birmingham Terminal Co. v. Wilson, 249 Ala. 397, 31 So.2d 563, 565.

Appellant contends that a decision favorable to her must be accorded because of the holding in the recent case of Birmingham Terminal Co. v. Wilson, supra. Emphasis is placed upon these excerpts from the opinion:

'But section 20(11), supra, now gives validity to such a regulation when a choice of rates is given and contained in a published tariff on file with the Interstate Commerce Commission, even though the passenger has no knowledge of it.'

'Plaintiff was allowed to recover the full value of her hand baggage because the published regulation limited the liability to $25, ' with no opportunity to secure better protection from loss or damage.' The opportunity to choose between rates on the basis of values tied to them is the controlling factor in determining the validity of the regulation.'

An examination of the opinion in the Wilson case, supra, will show that the tariff there before the court is in general terms very similar to the tariff in the case at bar. The limitation of maximum valuation seems to be more in the former tariff.

If we should follow the force and insistence of appellant's argument, we would be compelled to conclude that our Supreme Court would have reached a conclusion favorable to the passenger in the Wilson case if the value of his baggage had exceeded $500.00 and he had so claimed in his suit. The opinion in its entirety does not warrant such an interpretation.

It appears to us that 'choice of rates' and 'the opportunity to choose between rates on the basis of values tied to them * * *', used in the opinion in the Wilson case, mean and contemplate that the tariff must provide a privilege to the passenger to secure valuation coverage on transported baggage by paying, if required, extra charges for such protection.

This seems, in effect, to have been the view of the court in Kirchoff v. Southern Pacific Co., D.C., 68 F.Supp. 877, 880. It is there pointed out that the tariff involved in Franklin v. Southern Pacific Co., 203 Cal. 680, 265 P. 936, 59 A.L.R. 118, did not contain the provision for 'choice of rates' and on this account was declared invalid. With this deficiency supplied in the tariff under review in the Kirchoff case, the court upheld the validity and applicability of the schedule.

In the instant case, as in the Wilson case [249 Ala. 397, 31 So.2d 565], the tariff gives the passenger a 'choice of rates.' It is true, of course, that the schedule fixes an amount of valuation beyond which the baggage will not be transported.

If the contention of appellant is intended to take the position that the limitation of $225.00 is an unreasonable stipulation, then we are confronted with a long line of authorities which hold that the Interstate Commerce Commission has primary jurisdiction to determine this question. Boston & Maine R. Co. v. Hooker, supra; Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553, 9 Ann.Cas. 1075; Mitchell Coal & Coke Co. v. Pennsylvania R. Co., 230 U.S. 247, 33 S.Ct. 916, 57 L.Ed. 1472; Director General of Railroads et al. v. Viscose Co., 245 U.S. 498, 41 S.Ct. 151, 65 L.Ed. 372; Adler v. Chicago & Southern Air Lines, D.C., 41 F.Supp. 366.

It is not amiss to here observe that the...