Saunders v. Southern Ry. Co.

• Decision Date: 17 February 1904
• Docket Number: 1,235.
• Citation: 128 F. 15
• Parties: SAUNDERS v. SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

128 F. 15

SAUNDERS v. SOUTHERN RY. CO.

No. 1,235.

United States Court of Appeals, Sixth Circuit.

February 17, 1904

This was an action to recover damages for breach of a contract for the carriage of the Tim Murphy Theatrical Troupe, their baggage, scenery, stage properties, etc., from Atlanta, Ga to Lexington, Ky., with the privilege of stopping over at Chattanooga and Knoxville. There was a plea of not guilty. The plaintiff was proprietor and manager of a traveling theatrical troupe, consisting in all of 14 persons. The troupe had been traveling in Texas, Louisiana, and Mississippi, and from a point in Mississippi expected to go to Birmingham, Ala.; thence to Atlanta, Chattanooga Knoxville, and Lexington, Ky.

The bill of exceptions states, among other things, that the following facts were proven:

'Plaintiff's advance agent was a man by the name of Coltman, who traveled about one week in advance of the company, and whose duty it was to contract for railroad rates, and fix terms with opera-house owners or managers, and to arrange rates and terms with transfer companies, and see to the advertising. When Coltman reached Birmingham, about one week in advance of plaintiff's company, in 1902, he opened negotiations with Freeman, who was the local passenger agent of defendant company at that point. Freeman replied that he would communicate with the head office of the company, which, for this territory, was the office of Assistant General Passenger Agent Benscoter, at Chattanooga, Tenn. This Freeman did, and reported to Coltman, giving rates of transportation for a company of eighteen persons, with the privilege of stopping over at Atlanta, Chattanooga, and Knoxville, and ending at Lexington, Ky., which carried the right of a separate car without extra charge, for baggage, stage scenery, and effects. At the same time Freeman gave Coltman a schedule of trains for the movement of his company. This baggage and stage scenery consisted of a lot of trunks containing the personal baggage of the individuals, fourteen persons in all, composing the troupe, and also stage scenery and effects, embracing drop curtains, furniture for the stage, and the necessary tools and stage paraphernalia usually used by theatrical companies.

'The sale of a ticket for eighteen persons carried with it, as above shown, the privilege of the baggage car for said baggage and stage effects, without extra charge, but a ticket for a less number of persons than eighteen would not carry that privilege and would subject the members to excess baggage charges if any individual had more than 200 pounds of baggage or scenery in addition thereto. This excess would apply to all personal baggage for each individual containing over 200 pounds. Ordinarily individual passengers are entitled to 150 pounds of personal baggage, but individuals of theatrical troupes are entitled to personal baggage of 200 pounds to the individual on railroads. By the terms of transportation for said company given by said Freeman to said Coltman said baggage car was to be transported on the same train with plaintiff company, or in a train in advance; and the dates of performance at Atlanta, Chattanooga, Knoxville, and Lexington were made known to Freeman, and the baggage car and company were to reach those points in time for those dates.

'In accordance with the arrangements thus made between Coltman and Freeman, the defendant's agent, Benscoter, issued to each of the company's agents at Birmingham, Atlanta, Chattanooga, and Knoxville a document called an 'Itinerary,' worded as follows:

"Chattanooga, Tenn., Jan. 25, 1902.

"Tim Murphy Theatrical Company.

"Mr. A. B. Freeman, T.P.A., Birmingham; Mr. C. P. Jackson, T.P.A.,

Birmingham; Mr. J. C. Lusk, T.P.A., Chattanooga; Mr. J. L. Meek,

T.P.A., Knoxville; Mr. J. J. Gray, T.P.A., Meridian; Mr. F. H. Hart,

B.A., Meridian; Mr. L. J. Johnson, T.A., Birmingham; Mr. J. J. Mullins,

B.A., Birmingham; Mr. J. E. Shipley, C.T.A., Chattanooga; Mr. J. H.

Waite, D.T.A., Chattanooga; Mr. W. H. Brown, B.A., Chattanooga; Mr.

J. T. Moffett, T.A., Knoxville; Mr. J. M. Gore, B.A., Knoxville:

"Gentlemen-- Tim Murphy Theatrical Company, eighteen or more people requiring one fifty-foot baggage car for their scenery, will move as follows:

Jan. 31. Lv. Meridian ..... 6.40 a. m.

Ar. Birmingham ... 12.25 noon 153 miles

Feb. 1. Lv. Birmingham ... 6.00 a. m.

Ar. Atlanta ...... 11.30 a. m. 107 miles

Feb. 2. Lv. Atlanta ...... 7.55 a. m.

Ar. Chattanooga .. 1.00 p. m. 138 miles

Feb. 4. Lv. Chattanooga .. 9.55 a. m.

Ar. Knoxville .... 1.10 p. m. 111 miles

Feb. 5. Lv. Knoxville .... 9.50 a. m.

Ar. Lexington .... 5.51 p. m. 211 miles

"Baggage car to be handled, Chattanooga to Knoxville, on No. 12, Feb. 4th, and from Knoxville to Harriman Jct. on freight train No. 73, Feb. 5th, if No. 73 on time, that date.

"The advance agent has been ticketed through to Lexington, and you may sell the company, eighteen or more people, on one ticket, at rate of 2 cents per mile per capita, which is to cover movement of baggage car.

"Usual release should be taken on regular theatrical baggage, Form 239. Agents will be held personally responsible for these releases.

"Yours truly, C. A. Benscoter, A.G.P.A.

"Mr. Dodson, Mr. Reddle, Mr. Frazier, Mr. Heyden, Mr. Vaughan, Mr. Wing, Mr. Rinearson, Mr. Hardwick, Mr. Taylor.

"Transportation department please note and protect movement as outlined above. This confirms my joint telegram 23d. inst. Please acknowledge receipt."

This 'itinerary' was issued at the request of Freeman, the Birmingham agent of the railroad company, who at the same time informed Benscoter that Coltman would call and see him on reaching Chattanooga. It was not shown that Coltman did do so, or that he ever had any conference with Benscoter. Coltman reported to plaintiff the transaction with Freeman, and 'recommended the purchase of the ticket for eighteen persons, with said baggage car privileges. ' He was himself furnished with transportation to Lexington as one of the plaintiff's company, and went in advance about one week, and did not himself buy any ticket for the company. Neither was it shown that Coltman was ever notified of any requirement that a release should be executed for the company's stage baggage, scenery, etc., nor that he was ever furnished with or say the 'itinerary,' as above set out, though it was shown that he was given a 'schedule of trains for the movement of his company. ' What this 'schedule' was, does not further appear. Plaintiff himself, a week later, bought at Birmingham a solid ticket for 18 persons from Birmingham to Atlanta. But nothing was then said to him about signing a release as a condition of getting special transportation for the company's baggage. After a performance at Birmingham the baggage and company paraphernalia was taken to the depot by the company's 'property man,' one Davenport, and was by him loaded into a baggage car furnished for use of the troupe. He was then asked to sign, and did sign, a release in the following words: 'Form 239.

'Southern Railway, Birmingham, Alabama, Station, Feb. 1, 1902.

'Theatrical Baggage Release.

'In consideration of the carriage upon special conditions by the Southern Railway Company, and connecting lines, car, baggage and scenery, four pieces checked Tim Murphy Theatrical Company, from Birmingham, Alabama, to Atlanta, Georgia, the undersigned, acting as property man for the said Tim Murphy Theatrical Company, hereby releases and forever discharges the Central of Georgia Railway Company and other transportation companies which together compose the through line between the points above named from all liability for any damage or loss which may happen to baggage while in their possession. Ed. Davenport.'

To induce him to do so, he was shown the itinerary set out above, and his attention called to the necessity of doing so and told that the baggage would not be forwarded unless he did sign. On reaching Atlanta, and before the performance the same night, the plaintiff bought another solid ticket for 18 persons to Lexington, Ky., with right to stop over at Chattanooga and Knoxville. Nothing was said to him about any release, and he knew nothing of the demand made on Davenport at Birmingham, or that he had signed the release set out, nor had he then been furnished with or shown the 'itinerary' issued by Benscoter. After the performance, the company's baggage, scenery, etc., were taken charge of as usual by Davenport, and loaded in a car furnished for that purpose. He was then asked to sign a release similar to the one above set out. He thereupon telephoned plaintiff, who had, earlier in the evening, refused to sign one, and was directed not to sign. The baggage was, however, forwarded to Chattanooga without a release, At Chattanooga a like demand was made and refused, but the car forwarded to Knoxville. At Knoxville, after the car had been loaded and locked, a demand was again made that Davenport should sign a release in form like the one set out above, and again told that the baggage would not be forwarded unless he did. This he refused to do. Plaintiff was then called up over the telephone at his hotel, but he refused to allow the release to be signed. It was presented to plaintiff himself the next morning when he went to the station to take the passenger train with his company. He thereupon took the release, and wrote on the face of it the words, 'Provided the baggage, etc., is delivered on time and in good order,' and signed the paper. The defendant's agents then informed him that they would not 'forward the baggage with such a proviso in it. ' The personal baggage of the members of the company, consisting of five trunks, was, however, sent on by the...