Lawes v. N. O. Transfer Co., Inc.

• Decision Date: 10 June 1929
• Docket Number: 11,491
• Court: Court of Appeal of Louisiana — District of US
• Parties: LAWES v. N. O. TRANSFER CO., INC

123 So. 144

11 La.App. 170

LAWES v. N. O. TRANSFER CO., INC

No. 11,491

Court of Appeals of Louisiana, Orleans

June 10, 1929

Rehearing Refused July 1, 1929.

Writ of Certiorari and Review Refused by Supreme Court October 8 1929.

Appeal from Civil District Court, Parish of Orleans. Division "A". Hon. Hugh C. Cage, Judge.

Suit by Lula May Lawes against the New Orleans Transfer Company, Inc.

There was judgment for plaintiff, and defendant appeals.

Judgment affirmed.

Howell Carter, Jr., of New Orleans, attorney for plaintiff appellee.

Chas I. Denechaud and Ernest J. Robin, of New Orleans, attorneys for defendant, appellant.

OPINION

WESTERFIELD, J.

Plaintiff sues the New Orleans Transfer Company, Inc., to recover the sum of $ 537.45, the value of a trunk and contents belonging to her, which, she alleges, was lost by the defendant.

The answer admits the loss of the trunk, but contends that defendant's liability is limited to $ 100, under an alleged contract between plaintiff and defendant for the transportation of her baggage.

There was judgment below for plaintiff as prayed for, and defendant has appealed.

Plaintiff was a passenger on a train of the Southern Railway Company, returning to New Orleans from Hendersonville, N. C. Just before the train reached the depot in New Orleans, an agent of the defendant company solicited the transfer of plaintiff's baggage, as well as the baggage of other passengers. Plaintiff handed the defendant's agent her baggage check calling for a wardrobe trunk, and paid him $ 1, the sum demanded for transporting the baggage to her residence in the city of New Orleans. She received from the agent a slip of paper which she testified she considered a receipt for the $ 1, given the agent. On this slip of paper there was printed:

"The rates charged by this company are in each instance based upon a valuation not greater than $ 100.00 (One Hundred Dollars) per piece. This company will not accept a greater liability than $ 100.00 (One Hundred Dollars) for each piece of baggage on account of loss or damage, unless a greater value is declared by the owner at the time railroad checks are surrendered to this company, and an additional risk paid for at the rate of ten cents (10c) for each $ 100.00 (One Hundred Dollars) or fractional part thereof value so declared."

In some way the plaintiff's trunk was lost. It is admitted that plaintiff has fairly appraised her loss.

Defendant argues, and it must be conceded, that it is a common carrier, Liberman vs. Faust, Orleans Appeal, Tessier Digest, p. 40; that it may restrict its liability by special contract, Roberts vs. Riley, 15 La.Ann. 103, 77 Am. Dec. 103; Brauer vs. Barque "Almoner", 18 La.Ann. 266; Luckett & Hunter v. R. Co., 1 La.App. 434; 10 Corpus Juris, p. 133.

But the question in this case is: Was there a contract between plaintiff and defendant which limited her recovery in the case of loss to $ 100 as stipulated in the printed form attached to the receipt, handed plaintiff by defendant's agent.

Plaintiff, who was the only witness in the case, testified that she did not know that this clause was in the receipt and did not discover it until after the agent had left the train. She valued her trunk in Hendersonville at $ 400, and paid the charge demanded by the railroad company because of the excess valuation. It is likely that if she had noticed any attempt to limit the liability of the defendant company that she would have declared and paid for an excess valuation.

Be that as it may, the question is whether she is bound by the limitation of the clause in the receipt, and not whether she knew of its presence in the receipt, because sometimes persons are held to conditions and qualifications in similar cases, when they have not read them and know nothing about them. For example, the clauses limiting the liability of carriers, which appear in bills of lading, are binding upon shippers, whether they have been read, or otherwise. In the case at bar, however, the situation is somewhat different. Here, a local transfer company, upon receiving a railroad baggage check from a patron, issued to her a paper, which she was justified in believing was nothing more than a receipt, or voucher. The distinction we have in mind is well stated in 10 Corpus Juris, p. 141, from which we quote the following:

"A distinction has been drawn, in the matter of the effect of acceptance of receipts, between freight and baggage cases. Thus, although there is some authority to the contrary, it is very generally held that where a person, on delivery of baggage to a local express or transfer company, receives a paper which, from the circumstances of the transaction, he has a right to regard simply as a receipt or voucher, to enable him to forward and identify his property, and no notice is given to show...