Wood v. Cunard S.S. Co.

• Decision Date: 12 December 1911
• Docket Number: 46.
• Citation: 192 F. 293
• Parties: WOOD v. CUNARD S.S. CO., Limited.
• Court: U.S. Court of Appeals — Second Circuit

192 F. 293

WOOD v. CUNARD S.S. CO., Limited.

No. 46.

United States Court of Appeals, Second Circuit.

December 12, 1911

Louis Marshall and Abraham Benedict, for appellant.

Lucius H. Beers and Allan B. A. Bradley, for respondent.

Before LACOMBE, COXE, and NOYES, Circuit Judges.

LACOMBE Circuit Judge (after stating the facts as above).

The first question which may be considered is whether an agreement was entered into limiting the amount of recovery to . . . 5. The ticket is in the usual form of so-called passenger's contract ticket. The face of the ticket contains many provisions. As reproduced in the record on appeal it covers 3 1/2 pages. Upon it in heavy black type are the words 'See Back.' On the back in similar type are the words 'Notice to Passengers,' followed by seven paragraphs containing various provisions. Among them is the following:

'4-- Neither the shipowner, nor the passage broker or agent, is in any case liable for loss of or injury to or delay in delivery of luggage or personal effects of the passenger beyond the amount of .. . 5, unless the value of the same in excess of that sum be declared at or before the issue of this contract ticket, and freight at current rates for every kind of property (except pictures, statuary, and valuables of any description, upon which one per cent. will be charged) is paid.'

This ticket was not signed by the passenger, nor was his attention called to any part of it. The only contention is that he read the notice and must be understood to have agreed to the provisions on the back, since they were prefaced with the words:

'This contract is made subject to the following conditions.'

We are not convinced by the evidence that the libelant read the notice, and could only find that he did read it by an assumption which might or not be well-founded. The libelant testified that he had no distinct recollection of having examined the notice, but felt sure he had done so. This he immediately qualified by stating that he did not know that there was any limitation of liability contained in the notice. The only fair interpretation of his testimony is that, although without distinct recollection, he did examine the notice in a general way, but did not know that there was any limitation in it. There is no satisfactory proof of any such meeting of the minds of the parties as would constitute an agreement materially to modify the obligations of the carrier, and without such agreement we do not think this indorsed notice can be imported into the contract.

The more important question in the case, however, is whether this manuscript may properly be considered an item of passenger's baggage. The libelant has described the manual at considerable length. The scheme of the book was that pupils should be taught Greek on exactly the same system on which they are taught modern languages; that is to say, to be able to speak it, as well as to be able to read and write it. He got the idea originally from a French scholar named Galland. It was partly written and partly typed, and libelant had been engaged in its preparation while a student in the university from which he graduated and during about eight years thereafter, while he was engaged in teaching. Of course, he worked at it only at intervals. He testified that he hoped in the course of time to publish it; but its immediate purpose, and the reason why he carried it about with him, was as an aid to teaching. He used it as a lecturer on professional subjects uses the notes and excerpts from which he draws the material for his lectures.

Passenger's baggage is not confined to wearing apparel and similar articles. In Porter v. Hildebrand, 14 Pa. 129, it was held that a reasonable amount of the tools with which he works may be carried by a journeyman carpenter as baggage. The court says that the right to carry tools as baggage is unquestionably open to abuse, but adds that the correction is to be found in the intelligence and integrity of the jury called to determine under the circumstances of each case.

To the same effect are Davis v. Cayuga & Susquehanna R.R., 10 How.Prac. (N.Y.) 330 (harnessmaker's tools, valued at $10), and Kansas City R.R. v. Morrison, 34 Kan. 502, 9 P. 225, 55 Am.Rep. 252 (a set of watchmaker's tools, apparently not of great value). In Staub v. Kendrick, 121 Ind. 226, 23 N.E. 79, 6 L.R.A. 619, a traveling salesman's illustrated catalogue, valued at $50, was held to be baggage; and a similar conclusion was reached in Gleason v. Transportation Co., 32 Wis. 85, 14 Am.Rep. 716. In T. & P. Ry. Co. v. Morrison Faust Co., 20 Tex.Civ.App. 144, 48 S.W. 1103, manuscript music used in connection with the business of a traveling dramatic company was held to be baggage; the amount is not stated. In Werner v. Evans, 94 Ill.App. 328, the record books of a professional nurse were included in a verdict which was considered on appeal. The court said:

'We think the record book in question might reasonably be included in the articles which, without imposition on the carrier, appellee could properly have carried in such valise, and for the loss of which she is entitled to be compensated at such valuation as from evidence the jury should find. The said books were, it appears from the evidence, implements used in her vocation as nurse, and such as she might

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