Kiernan v. Greyhound Lines, Inc.

• Decision Date: 06 February 1968
• Docket Number: No. 52748,52748
• Parties: Joan A. Julich KIERNAN, Appellant and Cross-Appellee, v. GREYHOUND LINES, INC., and Oran E. Lang, Appellees and Cross-Appellants.
• Court: Iowa Supreme Court

Page 310

156 N.W.2d 310

261 Iowa 788

Joan A. Julich KIERNAN, Appellant and Cross-Appellee, v. GREYHOUND LINES, INC., and Oran E. Lang, Appellees and Cross-Appellants.

No. 52748.

Supreme Court of Iowa.

Feb. 6, 1968.

Herrick, Langdon, Belin & Harris, Des Moines, for appellant and cross-appellee.

Davis, Huebner, Johnson & Burt, Des Moines, for appellees and cross-appellants.

BECKER, Justice.

Plaintiff filed action against defendants for negligent loss of two pieces of luggage. Defendant Oran E. Lang is Greyhound's agent in Des Moines. In presenting this case the parties make no distinction as to the relative posture of the two defendants. Nor do we. For the purposes of this case we treat the legal principles as applicable both to defendant Greyhound and to its agent Lang.

Defendants denied the allegations; they affirmatively defended on grounds under applicable statutes, regulations and filed tariffs their liability was limited to $25. Plaintiff's reply denied the affirmative allegations. She also pleaded estoppel and waiver of right to rely on the tariffs. At the close of all evidence the court directed a verdict for plaintiff for $25. Both sides appealed but defendants here abandoned their appeal.

Plaintiff had resided in Phoenix, Arizona for about two years. She decided to return to Des Moines for permanent residence and had a large amount of personal property to bring back to her former home. Her baggage consisted of eight pieces of luggage. She checked the various common carriers to determine the best way to go to Des Moines and to ship her luggage. She inquired about rates from Railway Express, American Express, Continental, and the airlines. She chose Greyhound because she could carry 100 pounds free.

When plaintiff brought her packages to the bus terminal on October 15 the terminal was crowded. She first purchased her ticket. At that time she tried to discuss a few matters about her baggage but was told the baggage clerk would answer all questions. After purchasing her ticket she went to the baggage counter where there were three or four persons in front of her and several behind her. One man was behind the counter. Plaintiff states she asked the attendant if her luggage was insured. 'He told me that I was covered by insurance, and I asked him, I said, 'Are you sure?' and he said 'Yes', and I said 'My luggage is worth approximately $2,000.00', and I said 'You're sure? Because,' I said, 'If you're not', I said 'I'll make other arrangements, or I'll ship them package express', and he said 'Don't worry about it, honey. They're going to get there okay.''

On cross-examination plaintiff was asked if she had seen any signs limiting baggage liability to $25. She stated she saw no such signs. She received eight baggage checks each bore the legend on the face of the check 'Baggage liability limited to $25. 'See over. " The reverse side of the ticket was printed:

'Contract notice to passengers. (1) The party accepting this check hereby agrees that no claim in excess of $25.00 for all baggage checked on one full fare ticket and in excess of $12.50 on one-half fare ticket shall be made against the issuing company for loss or damage to property covered by this and/or other baggage checks issued to the same passenger unless a greater amount is declared in writing at time of checking, in which case charges for excess value will be collected and an excess valuation receipt will be issued.

'(2) This check is accepted subject to all conditions of published tariffs.'

Mrs. Kiernan's baggage was weighed and she received an excess baggage declaration. She was charged and paid $8.00 for excess weight. The baggage clerk filled in the declaration. At this time she told him the value of her luggage was well in excess of $2000, but he entered no value on the excess weight declaration. Mrs. Kiernan signed the declaration.

Upon arrival in Des Moines plaintiff found all eight bags present. She delivered the checks to defendant Lang, the Des Moines baggage clerk, and picked up one of the bags. At this point she and her mother decided there was too much to handle. She thereupon left the baggage at the terminal. Mr. Lang assured her they would take care of her property. When she returned the next day the two largest bags were missing. The two bags and contents are stipulated to be worth $1722.88.

Plaintiff also testified at no time did she consult a time table or any other written material put out by the company but relied on oral inquiry to company officials for all information. She was an experienced traveler by rail, air and bus. She assumed she was entitled to a free weight allowance but knew nothing of a free value allowance.

The pertinent portions of defendants' tariff (except as otherwise quoted in the body of this opinion) are:

'Liability: (a) Carriers, parties to this Tariff, will not be responsible for loss of or damage to Baggage in excess of the amounts shown below, and then only to the extent of the actual loss or damage sustained computed on the basis of the actual value of the Baggage at the place and time of checking.

'(1) The Maximum Free Value Allowance, as authorized in Rule No. 5 herein, in the event no Excess Value has been declared and Excess Charges paid thereon.

'(2) The Declared Value of the Baggage at the time of checking and upon which Excess Value Charges as shown herein have been paid. (See also Paragraph (b))

'(b) Carriers, parties to this Tariff, will NOT accept liability for a greater value than two hundred and twenty-five ($225.00) dollars on any single piece of Baggage, nor for a greater value than two hundred and twenty-five ($225.00) dollars for each full fare ticket or one hundred and twelve dollars and fifty cents ($112.50) for each half-fare ticket presented, regardless of the number of pieces of Baggage, and in no event shall the liability exceed the actual value of the Baggage, at the place and time of checking. * * *

'Charges for Baggage of Excess Value:

'(a) Charges for Excess Value must be prepaid and are separate and distinct from the charges for Excess Weight.

'(b) Collections for Excess Value will not be made for movements to any stations beyond that to which the Baggage is checked.

'(c) When collection is made for Excess Value, an 'Excess Check' or 'Excess Receipt' will be issued. * * *

'(e) Unless a greater value is declared by a passenger, and charges paid for Excess Value at time of checking, it shall be considered that the value of Baggage, belonging to, or checked for, a passenger, is not in excess of the Free Value Allowance specified in Rule No. 5, and Carriers, parties to this Tariff, will not accept liability for a greater sum in case of loss or damage.

'(f) If a passenger declares a greater value than that specified in Rule No. 5, Section C, a charge, at the rate of ten (10cents) cents for each additional one hundred ($100.00) dollars valuation or fraction thereof, shall be assessed, but the total valuation may not exceed the limitations in Rule No. 4, Section C (See Exception).

The Minimum Charge for Excess Value will be ten (10cents) cents.

'(g) The Declaration of Value in excess of the Free Value Allowance shall be on a form prescribed by the checking Carrier.'

I. The loss sustained by plaintiff occurred while the goods were in interstate commerce. The rights of the parties are determined by federal law. Fay v. Chicago, R.I. & P.R. Co., 186 Iowa 573, 173 N.W. 69; Neece v. Richmond Greyhound Lines, 246 N.C. 547, 99 S.E.2d 756.

II. We believe this case is controlled by what has been said by the United States Supreme Court in New York, N.H., & Hartford R. Co. v. Nothnagle, 1953, 346 U.S. 128, 73 S.Ct. 986, 97 L.Ed. 1500 (hereafter referred to as Nothnagle).

In Nothnagle a woman passenger delivered her hand bag (which she had carried with her on the train) to a Red Cap in New Haven when she was changing trains. No baggage check had been issued. 'The suitcase vanished and respondent sued. At trial in the Meriden City Court the parties stipulated that the baggage and contents actually worth $615 were lost due to petitioner's negligence. Petitioner insisted, however, that its liability as an interstate carrier was governed by a tariff schedule filed with the Interstate Commerce Commission which limited recovery for baggage loss to $25 unless the passenger had in writing declared a higher valuation.'

In deciding this case Mr. Justice Clark, speaking for a unanimous court concluded the opinion with the following recognition of policy. 'cf. Watson Bros. Transp. Co. v. Feinberg Kosher Sausage Co., 8 Cir., 1951, 193 F.2d 283, 286. 'The great object of the law governing common carriers was to secure the utmost care in the rendering of a service of the highest importance to the community. A carrier who stipulates not to be bound to the exercise of care and diligence 'seeks to put off the Essential duties of his employment.' It is recognized that the carrier and the individual customer are not on an equal footing. 'The latter * * * cannot afford to higgle or stand out and seek redress in the courts. '' Santa Fe, P. & P.R. Co. v. Grant Bros. Construction Co., 1913, 228 U.S. 177, 184--185, 33 S.Ct. 474, 477, 57 L.Ed. 787. In sum, respondent cannot be held bound by petitioner's limitation,'.

The interstate Commerce Act, specifically Title 49, United States Code, section 20(11) provides the carrier shall issue a receipt or bill of lading, shall be liable for any loss, damage or injury to property, prohibits limitations on liability for such loss but excepts baggage carried on passenger trains or boats and excepts property permitted to be carried at rates which are dependent on value declared in writing by the shipper or agreed upon in writing as the release value of the property. The Supreme Court held that: 'The excepted 'baggage carried on passenger trains' refers solely to free baggage checked through on a passenger fare.' (emphasis supplied) New...