Treadway v. Terminal Railroad Assn.
| Decision Date | 02 July 1935 |
| Docket Number | No. 23153.,23153. |
| Parties | W.T. TREADWAY, RESPONDENT, v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, A CORPORATION, APPELLANT. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis. — Hon. John W. Calhoun, Judge.
REVERSED AND REMANDED.
T.M. Pierce, J.L. Howell and Walter N. Davis for appellant.
Defendant offered in evidence, which the trial court rejected on plaintiff's objection, Western Baggage Tariff No. 25-8, etc., to-wit, Rule 10, paragraph A, Rule 11, paragraphs F and G, and Rule 14, paragraph A, which said tariff was filed for and in behalf of the Missouri-Kansas-Texas Railroad Company and other railroads with the Interstate Commerce Commission and approved by it. In rejecting said offer and tariff in evidence, the trial court erred for the reasons following: (a) Under the Federal rule, irrespective of the plaintiff's evidence and the verdict of the jury and the judgment of the State court, all the evidence is considered to determine whether the evidence established interstate transportation, and, if it does, the Federal Act is paramount. The evidence shows that plaintiff's baggage was carried in interstate commerce and that defendant held it for the M.K. & T.R.R. Co. in said commerce. B. & O.S.W. v. Burtch, 263 U.S. 540, 44 S. Ct. 165, 68 L. Ed. 433; Cox v. M.K. & T.R. Co., 76 S.W. (2d) 411. (b) The Interstate Commerce Act and the Carmack Amendment to the Hepburn Act applies with respect to a passenger's interstate baggage. Boston & M.R.R. Co. v. Hooker, 233 U.S. 97, 34 S. Ct. 526, 58 L. Ed. 868. (c) The Missouri-Kansas-Texas Railroad Company carried plaintiff's baggage from Houston, Texas, to St. Louis, Missouri, in interstate commerce. Defendant received said baggage from said railroad and delivered it, free of charge, to plaintiff for said railroad. Defendant thus was acting as said railroad's agent. Under the uncontradicted evidence, the M.K. & T.R.R. Co. was a proprietary line in operating the Union Station and Baggage room. U.S. v. Brooklyn Terminal, 249 U.S. 296, l.c. 306, 63 L. Ed. 613, 39 S. Ct. 25. (d) The provision in a tariff schedule, filed with the Interstate Commerce Commission, that the passenger must declare the value of baggage and pay excess tariff for excess liability has been held to be a valid regulation within the meaning of paragraphs 6 and 22 of the Interstate Commerce Act. Both the carrier and the passenger were bound by the provisions of the filed tariffs. As these limited recovery for baggage carried to $100, in the absence of a higher value and the payment of an excess charge, and as no such declaration was made and excess charge paid, that sum only was recoverable. Boston & M.R.R. Co. v. Hooker, 233 U.S. 97, 34 S. Ct. 526, 58 L. Ed. 868; Galveston H. & S.R. Co. v. Woodbury, 254 U.S. 357, 41 S. Ct. 114, 65 L. Ed. 301; American R. Co. v. Daniel, 269 U.S. 40, 46 S. Ct. 15, 70 L. Ed. 154; Western Union T. Co. v. Esteve Bros. & Co., 256 U.S. 566, 41 S. Ct. 584, 65 L. Ed. 1094; Pierce & Co. v. Wells Fargo Co., 236 U.S. 278, 35 S. Ct. 351, 59 L. Ed. 576; T. & P.R. Co. v. Mugg, 202 U.S. 242, — S. Ct. ___, ___ L. Ed. ___; K.C. So. Ry. Co. v. Carl, 227 U.S. 639, ___ S. Ct. ___, ___ L. Ed. ___; Erie R. Co. v. Stone, 244 U.S. 332, 37 S. Ct. 633, 61 L. Ed. 1173. (e) Tariff schedules are admissible in evidence, and it has been held to be error to exclude such schedules. N.Y.R. Co. v. Beaham, 242 U.S. 148, 37 S. Ct. 43, 61 L. Ed. 210; Southern Express Co. v. Byers, 240 U.S. 612, 36 S. Ct. 410, 60 L. Ed. 825. (f) The United States Supreme Court has held that the limitation of $100 applies to warehousemen. Cleveland & St. Louis Ry. Co. v. Dettelbach, 239 U.S. 588, 36 S. Ct. 117, 60 L. Ed. 453. (g) It was within the power of the carrier, under the act, to regulate commerce as amended to limit liability even in a case of negligence by affording the shipper an opportunity to pay a higher rate and secure a higher recovery. American Express Co. v. United States Horse Shoe Co., 244 U.S. 58, 37 S.C. 595, 61 L. Ed. 990. (h) Even though the tariff schedules filed with the Interstate Commerce Commission were not posted, yet both the carrier and the passenger were bound by the provisions of the filed tariff. American Express Co. v. United States Horse Shoe Co., 244 U.S. 58, 37 S. Ct. 595, 61 L. Ed. 990. (i) The effect of the tariff schedule cannot be escaped by suing for conversion in trover. American R. Express Co. v. Levee, 263 U.S. 19, 44 S. Ct. 11, 68 L. Ed. 140.
Buder & Buder, G.A. Buder, Jr., and Frederick A. Judell for respondent.
(1) Defendant, in receiving plaintiff's baggage from the Missouri-Kansas-Texas Railroad Company, acted as a warehouseman and is liable as such to the plaintiff for negligent loss of the baggage while in its possession. Bowles v. Payne, 251 S.W. 101; Levi & Co. v. Railroad, 157 Mo. App. 536; Bell v. Railroad, 6 Mo. App. 363; Gashweiler v. Railroad, 83 Mo. 112; Hubbard v. Railroad, 112 Mo. App. 459. (2) Defendant is not entitled to invoke against plaintiff any limitation of liability which might be available to the Missouri-Kansas-Texas Railroad Company, and the Western Baggage Tariff which was offered by defendant to uphold such limitation was properly excluded. (a) For the purpose of storing baggage of interstate passengers defendant is not a common carrier, subject to regulation under the Act of Congress regulating interstate commerce. Noel v. Westcott Express Co., 95 Misc. Rep. 154, 158 N.Y. Sup. 702; In re Frank Parmelee Co., 12 I.C.C.R. 40; Wylie v. Northern Pacific R. Co., 11 I.C.C.R. 145; McQuat v. Taxicab Co., 145 Minn. 210, 176 N.W. 763; Lawes v. New Orleans Transfer Co., 11 La. App. 170, 123 So. 144; U.S. v. Brooklyn Terminal, added at p. 12 of appellant's brief is not applicable, because there it was admitted that defendant was engaged in interstate commerce, 249 U.S. l.c. 307. The franchise privilege of transportation, as distinguished from storage, cannot be delegated to an independent contractor. Peters v. R.R., 150 Mo. App., l.c. 734-36; Denver Union Term. Ry. v. Cullinan, 210 Pac. 602. (Colo.). (b) Defendant was not acting in the handling of plaintiff's baggage as agent of the Missouri-Kansas-Texas Railroad Company, but was an independent contractor, and since it neither filed, published, participated in nor concurred in any baggage tariff filed with the Interstate Commerce Commission, the provisions or limitations of such tariff cannot inure to it. In re Peoria & Pekin Union Co., 93 I.C.C. Reports 3; State v. Jacksonville Terminal Co., 90 Fla. 721, 106 So. 576; Noel v. Westcott Express Co., supra; Martin v. American Express Co., 19 Wis. 336; Burgess v. Garvin, 272 S.W. 108, l.c. 112; Aubuchon v. Security Const. Co., Inc., 291 S.W. 187, l.c. 189. (3) Under the law of Missouri, which applies to this case, since the storage of plaintiff's baggage was wholly an intrastate transaction, the misdelivery of baggage is a conversion which prevents the defendant from invoking tariff provisions limiting its liability. Boone v. Missouri Pacific R. Co., 263 S.W. 495.
Plaintiff recovered judgment against defendant in his action for the value of certain baggage which had been transported by the Missouri, Kansas & Texas Railroad Company from Houston, Texas, to St. Louis, Missouri, and upon arrival delivered by said railroad company to the defendant Terminal Railroad Association of St. Louis, at Union Station in St. Louis, Missouri, for safe keeping and delivery to plaintiff, and which baggage was never delivered though due demand was made by plaintiff.
On March 27, 1931, plaintiff and his wife were at the Rice Hotel in Houston, Texas. Plaintiff had purchased two tickets for transportation by the Missouri, Kansas & Texas Railroad Company from Houston, Texas, to St. Louis, Missouri. Plaintiff called the porter of the hotel to get his baggage and have the same checked to St. Louis. The hotel porter, upon checking the same for transportation as baggage for the plaintiff, signed a declaration and stipulation in plaintiff's name, that the value of the baggage did not exceed one hundred dollars, and that in case of loss or damage to such property "claim will not be made for a greater amount." Later, when plaintiff left the hotel, he received from the head porter his railroad ticket and the baggage check of the Missouri, Kansas & Texas Railroad Company.
Plaintiff's baggage was carried by the Missouri, Kansas & Texas Railroad Company to St. Louis, Missouri, and arrived at the Union Station at about ten o'clock on the evening of March 28, 1931. The baggage was there turned over by the baggage man of the train to a representative of the defendant Terminal Railroad Association of St. Louis, who gave the baggage man a receipt for the same in the name of Dennis O'Toole, railroad baggage agent of the Terminal Railroad Association. Plaintiff went to claim his baggage at Union Station on March 29, 1931, at about nine o'clock A.M. Defendant was not able to locate the baggage and it was never delivered to plaintiff.
Defendant's answer in the case alleges that the transportation of plaintiff's baggage was interstate and was controlled by the Act of the Congress of the United States regarding interstate commerce, and by the rates and tariffs filed with the Interstate Commerce Commission; that the Missouri, Kansas & Texas Railroad Company, prior to March 27, 1931, had filed with the Interstate Commerce Commission its local and joint tariffs relative to baggage rules, regulations, rates and charges applying in connection with the transportation of baggage and other articles and property as classified at and between stations on the lines of the issuing, initial and participating carriers, and from stations on such lines to other destinations in the United States and foreign countries, and which tariffs were in full force...
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