153 So. 249 | Ala. | 1934
The action of the trial court consisted in granting the motion for a new trial in the first instance for defendant, rendering a reduced judgment on resubmission, and overruling plaintiff's motion for a new trial. The lower court tried without a jury.
The evidence was undisputed that plaintiff sustained damages in the amount indicated in the first judgment, whereas the judgment on resubmission for a smaller amount was in accord with the limitations of the federal statute and southeastern tariff on file. On the date of the injury and damage, the defendant had on file with the Interstate Commerce Commission its Southeastern Baggage Tariff No. 11, which was in force, and alleged to limit the recovery to the amount of the last judgment rendered and from which this appeal is taken.
When the lower court tries a cause without a jury, if the judgment is not justified by the evidence, a final judgment may be rendered by the appellate court in accordance with the law and the evidence. Section 6149, Code; Montgomery Light
Traction Co. v. Woods,
The evidence shows that plaintiff's agent had her ticket as an interstate passenger over defendant's way from Birmingham to New Orleans when she made delivery by the transfer company of the trunks at the baggage room in the passenger station of defendant; that some hours thereafter she exhibited her ticket and evidence for the transportation, surrendered her transfer checks to the defendant's baggage master, the trunks were located, weighed, and checked by him, and the excess baggage charges and demands were paid by that passenger; that the trunks were duly deposited on defendant's train and transported to the point of destination in another state. The evidence showed it was raining while the trunks were in defendant's baggage room or shed in Birmingham and before the passenger presented her ticket and transfer checks, that the roof of that shed was in bad condition, had and would leak, and that it was raining when the trunks were placed therein by the transfer company, and there was water on the floor at the time the trunks were in that room.
The effect of the court's holding and judgment was that under the evidence the trunks were wet, and the damage to the contents of the trunks was caused by the negligent failure of duty by the defendant, or its agents in charge of that baggage, and by reason of the insufficient or insecure roof of the shed against rain.
The evidence further shows, without dispute, that the railroad company's baggage tariff, duly certified to by the Secretary of the Interstate Commerce Commission, provided, among other things, that "The rules, regulations, rates and charges published herein are the separate rules, regulations, rates and charges of each of the following individual carriers and its connections: * * * Louisville Nashville Railroad Company;" that "The rules, regulations, rates and charges contained herein apply in the checking, *292 storage and transportation of baggage," etc.; and that "Baggage checks will be issued for baggage, other articles, property or corpses authorized herein, upon presentation of valid transportation only when owner of the property is also owner of the transportation and is a bona fide passenger over the same line to or beyond the destination of the baggage"; also provisions covering baggage allowance, excess weight, size, and value of baggage, and the method of computing the charges for excess weight.
The evidence further showed that the plaintiff in this cause had been fully paid for its loss or damage by the insurance company, or advanced to assured by it. Rule 18 of the Southeastern Baggage Tariff No. 11 was adverted to to cover the subject of "loan receipt" and the right of the insurance company to use the name of the injured party to sue for the resulting damages for the benefit of the insurance effected by the shipper or interstate passenger.
Appellant urges the similarity of the facts of this case to the decision rested on the facts in Birmingham Terminal Co. v. Thomas,
It is insisted by appellee that, as concerned this defendant, its duty and liability, baggage delivered to it by the transfer company for a passenger was as a delivery by the passenger, and is received for transportation within section 20, paragraph 11, of the Interstate Commerce Act, 49 USCA § 20, par. 11. In this case, the baggage was received and transported as interstate commerce, and not received for keeping and delivery as a warehouseman. Nichols v. St. Louis S. F. R. Co.,
In Georgia, Florida Alabama Railway Company v. Blish Milling Company,
The rule that obtains in interstate transportation of property is given statement in the many federal decisions. L.R.A. 1917B, p. 927; Missouri, Kansas Texas Railway Company v. Harris,
In Galveston, Harrisburg San Antonio Railway Company v. Woodbury, supra, the *293
court said: "The test of the application of the act is not the direction of the movement, but the nature of the transportation as determined by the field of the carriers' operation. This is the construction placed upon the act by the Interstate Commerce Commission. International Paper Co. v. Delaware H. Co., 33 I.C.C. 270, 273, citing Texas P. R. Co. v. Interstate Commerce Commission,
In Boston Maine Railroad v. Piper,
"The Carmack Amendment ([34 Stat. at L. 595, chap. 3591, § 7] Comp. Stat. 1916, §§ 8604a, 8604aa) requires the initial carrier to issue a bill of lading, and carriers are obliged to carry the articles shipped at the rates fixed in the published tariffs. Many decisions of this court have held that the carrier may offer to the shipper and the shipper may be bound by a contract which limits recovery to a valuation declared by the shipper in consideration of the reduced rate for the carriage of the freight. This rule was stated in an early case arising after the passage of the Carmack Amendment. Adams Exp. Co. v. Croninger,
"In the cases in which the recovery for the lesser valuation has been affirmed, the shipper was offered an opportunity to recover a greater sum than the declared value upon paying a higher rate to the carrier. The shipper was offered alternative recoveries based upon different valuations upon the payment of different rates, and was held bound by the one chosen. Such contracts of shipment this court has held not to be in contravention of the settled principles of the common law preventing a carrier from contracting against liability for losses resulting from its own negligence, and are lawful limitations upon the amount of recovery binding upon the shipper upon principles of estoppel."
In Boston Maine Railroad v. Hooker,
And of agreements under the statute, it is declared in New York Central Hudson River Railroad Company v. Beaham,
"And the carrier is entitled to the presumption that its business is being conducted lawfully. Southern Exp. Co. v. Byers,
"In the circumstances disclosed, acceptance and use of the ticket sufficed to establish an agreement prima facie valid which limited the carrier's liability. Mere failure by the passenger to read matter plainly placed before her could not overcome the presumption of assent. New York C. H. R. R. Co. v. Fraloff,
"In order to determine the liability assumed for baggage it was proper to consider applicable tariff schedules on file with the Interstate Commerce Commission; and the carrier had a Federal right not only to a fair opportunity to put these in evidence, but also that, when before the court, they should be given due consideration. Southern Exp. Co. v. Byers,
See, also, American Railway Express Co. v. Lindenburg,
There is no count in the complaint which, under the evidence, would sustain a finding of liability against the railroad company in this case, on the theory of liability as a warehouseman. It was alleged and shown that the trunks were delivered to the railroad company as a common carrier for transportation from Birmingham, Ala., to New Orleans, La., and the evidence further shows that, before the baggage was delivered to the Birmingham Transfer Traffic Company, the ticket upon which the trunks were checked and transported had been purchased, that the trunks were subsequently checked and transported on this ticket, and the only capacity in which this appellee, railroad company, contracted and acted, was in its capacity as a common carrier.
The text of Elliott on Railroads is supported by authority, to the effect that "The liability of the company as a common carrier begins, as a rule, at the time the baggage is delivered to it for transportation, unless the time of such delivery be an unreasonable length of time before the owner's intended departure. In order that the liability as a common carrier should exist it is not always necessary that the passenger should have purchased a ticket, nor that he should even make the journey which he intends to make. As persons often become entitled to the rights of passengers before the purchase of a ticket, so the liability of the carrier for baggage sometimes begins before the purchase of a ticket, or even before the company becomes liable to the owner of the baggage as a passenger. Where a person in good faith intends to take passage on a railway train or the like and delivers his baggage to the company a reasonable time in advance of the anticipated journey, it seems that the company will be liable for such baggage as a common carrier from the time of such delivery and acceptance. And in such cases the company may be liable although the person does not purchase a ticket or make the proposed journey, as for instance, where he is prevented from so doing by the fault of the carrier and the loss or destruction of the baggage before the journey begins." 5 Elliott on Railroads (3d Ed.) § 2512, pp. 322, 323, and 324.
It is further declared by the Supreme Court of the United States that, "If a common carrier agree that property intended for transportation by him may be deposited at a particular place without express notice to him, such deposit alone is a sufficient delivery; and that such an agreement may be shown by a constant practice and usage so as to receive property without special notice." Pratt v. Grand Trunk Railway Co. of Canada,
The plaintiff in this cause had paid to the Birmingham Transfer Traffic Company for the safe transportation of its trunks from the plaintiffs place of business at Birmingham, Ala., to the Birmingham Transfer Traffic Company's place of business at the Louisville Nashville Station, and subsequent delivery by the Birmingham Transfer Traffic Company to the defendant; and if, under its agreement with plaintiff and the Louisville Nashville Railroad Company, the transfer company had the right to deposit the trunks when and where it did — in defendant's baggage room — or place for and remove in immediate passage, as was the case here, was a delivery to the defendant the object of interstate commerce? 5 Elliott on Railroads, § 2512, p. 323, and many authorities; Pratt v. Grand Trunk Railway Co. of Canada. supra; Nichols v. St. L. S. F. R. Co., supra; Britton Lumber Co. v. Central of Georgia R. Co.,
We are not of opinion that the provision of the federal act (49 USCA c. 1, § 1, par. (2), reading: "Transportation subjectto regulation. The provisions of this chapter shall also apply to such transportation of passengers and property and transmission of intelligence, but only in so far as such transportation or transmission takes place within the United States, but shall not apply — (a) To the transportation of passengers or property, or to the receiving, delivering, storage, or handling of property, wholly within one State and not shipped to or from a foreign country from or to any place in the United States as aforesaid" — has application to the facts before us. The natural import of the statute and the use of the word "shipped" in that provision *295 of the statute would not limit the act of interstate commerce alone to movement of the article for and in its course of transportation. Its deposit and receipt in good faith for immediate transportation, and its due embarkation in such transit to another state was an act of interstate commerce within the federal statute and decisions, and was within the application and limitations of the tariff.
We find no error in the ruling of the circuit court, and that judgment is affirmed.
Affirmed.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.