Lancaster v. Smith, (No. 1369.)

• Court: Court of Appeals of Texas
• Writing for the Court: Harper
• Citation: 244 S.W. 1076
• Parties: LANCASTER et al. v. SMITH et ux.
• Decision Date: 09 November 1922
• Docket Number: (No. 1369.)

244 S.W. 1076 LANCASTER et al.
v.
SMITH et ux. (No. 1369.) Court of Civil Appeals of Texas. El Paso. November 9, 1922. Rehearing Denied November 29, 1922.

Appeal from District Court, El Paso County; P. R. Price, Judge.

Action by H. L. Smith and wife against J. L. Lancaster and others, receivers. Judgment for plaintiffs, and defendants appeal. Affirmed.

S. N. Russell, of El Paso, for appellants.

Jones, Jones, Hardie & Grambling, of El Paso, for appellees.

HARPER, C. J.

This is a suit for $2,900, the alleged value of a trunk and its contents, checked on first-class ticket from Fort Worth to El Paso and lost, or destroyed by fire.

Defendants answered by general denial, special exceptions to the effect, that certain of the articles enumerated by plaintiff were not legitimate baggage.

That it was accepted and transported under Baggage Tariff, No. 25-2 filed with the Interstate Commerce Commission by which the plaintiff is limited to 150 pounds and $120 value.

Tried by the court without a jury; judgment for $2,300. Appealed.

We adopt the following findings of fact made by the trial court:

"1. On or about the 18th day of February, 1921, Henrietta Smith, wife of the other plaintiff, purchased a first class ticket from a duly authorized agent of the defendants entitling her to passage over the line of the Texas & Pacific Railway Company, as a passenger, from Fort Worth, Texas, to El Paso, Texas, paying for said ticket the customary price.

"2. That she traveled on said ticket and checked her trunk containing the articles enumerated in the exhibit attached to plaintiff's petition.

"3. That in the course of transportation the said trunk and its contents were destroyed by fire through the negligence of defendants. That the articles in said trunk were such as would ordinarily be carried on a journey such as plaintiff was making for the purpose for which she was making the journey, save and except the Cluny table cloth.

"4. That at the time of their loss the trunk and its contents were of the reasonable total value to plaintiffs of the sum of $2,300, exclusive of the Cluny table cloth.

"5. That the defendants (receivers) issued to plaintiff, Mrs. Smith, a check for her trunk. That on said check it is stated, in substance, that their liability was limited to the extent of $100.

"6. That prior to October 1, 1919, the Director General of Railroads promulgated certain baggage tariff known and designated as Western Passenger Bureau Baggage tariff No. 25-2; said tariff became effective on October 1, 1919. The same, by its terms, applies to the Texas & Pacific Railway, which was operated by these defendants at the time herein relevant, and among other things provides:

"`Rule 10. (a) Subject to limitations shown in rule 9, one hundred and fifty (150) pounds of baggage, not exceeding one hundred dollars ($100.00) in value, may be checked without additional charge for each adult passenger, and seventy-five (75) pounds not exceeding fifty ($50.00) dollars in value, for each child traveling on a half ticket.

"`(b) Passengers paying charges prescribed in rule 11 (b) for excess weight baggage will be entitled to an additional value allowance of 66 2/3 cents...