156 Ky. 677 | Ky. Ct. App. | 1914
Opinion of the Court by
Reversing.
• In December, 1911, the appellee was a passenger upon appellant’s train from Nashville, Tennessee, to Bowling Green, Kentucky. When she checked her trunk, appellant’s agent gave her a trunk check bearing this endorsement upon its back:
“It shall be the duty of every passenger tendering baggage for transportation to declare the value thereof without inquiry by the carrier or any agent or employee thereof. Unless a greater sum is declared by passenger according to the form prepared by checking carrier and charges paid for increased value at the time of the delivery to carrier, the value of the baggage or articles belonging to or checked for an adult passenger shall be held to have been declared and agreed by him to be and shall be deemed to be, not in excess of $100.00, and the value of the baggage or articles belonging to of checked for a child of half fare age, shall be held to have been declared and agreed by him to be, and shall be deemed* to be, not in excess of $50.00.”
The trunk having been lost upon the journey, appellee brought this action against appellant for $516.00 damages ; and, having recovered a judgment for $275.00, the
Appellant’s only complaint is that the court erred in sustaining a demurrer to its answer; while appellee’s .only complaint upon her cross-appeal is that the court, by its instruction, gave an erroneous measure of damages.
The answer further alleged that the joint baggage tariff referred to, was posted in its passenger depot at Nashville, as required by law; that appellee failed to declare a value on her baggage, and that the check given to plaintiff contained the endorsement above set out. Appellant relied upon said regulation and the check given, with the endorsement above referred to, and the plaintiff’s failure to declare a value on her baggage in excess of one hundred dollars, in bar of the plaintiff’s
The question for decision, therefore, is this: Did the acceptance of appellee’s trunk by the appellant, and the delivery to her of the check, endorsed as above indicated, conceding that it was regularly issued under and by virtue of its joint baggage tariff, have the effect of reducing appellant’s liability to a maximum of one hundred dollars?
This defense is made under the Interstate Commerce Act of February 25, 1887, as amended June 29,1906, and generally known as the Carmack Amendment.
There can be no doubt, that as to interstate shipments, the Carmack Amendment supersedes the Kentucky doctrine announced under section 196 of the Kentucky Constitution, that the shipper is not bound by a recital of value in his contract of shipment, but may show and recover his full loss. In the application of this federal statute we are, therefore, controlled by the construction given it by the United States Supreme Court.
And since this federal statute has been construed in Adams Express Co. v. Croninger, decided January 6, 1913, and reported in 226 U. S., 491, 44 L. R. A. (N. S.) 257, we are to look to that opinion for an authoritative interpretation. It was there held that Congress had so manifested a purpose in the Carmack Amendment to the Hepburn Act, to take control of the subject of the liability of a common carrier for the loss of, or damage to, an interstate shipment, as to supersede all State regulations upon the same subject, including the provisions of State Constitutions or laws invalidating contracts limiting the carrier’s liability to agreed values; and that therefore the validity of any stipulation in a contract for an interstate shipment which undertakes to limit the carrier’s liability, is a federal question, to be determined, both by the state and federal courts under the common law as finally declared by the United States Supreme Court.
In the Croninger case, supra, the court said:
“That the legislation supersedes all the regulations and policies of a particular state upon the same subject results from its general character. It embraces the subject of the liability of the carrier under a bill of lading which he must issue, and limits his power to exempt himself by rule, regulation, or contract. Almost every detail
“To hold that the liability therein declared may be increased or diminished by local regulation or local views of public policy will either make the provision less than supreme, or indicate that Congress has not shown a purpose to take possession of the subject. The first would be unthinkable, and the latter would be to revert to the uncertainties and diversities of rulings which led to the amendment. The duty to issue a bill of lading, and the liability thereby assumed, are covered in full; and though there is no reference to the effect upon state regulation, it is evident that Congress intended to adopt a uniform rule and relieve such contracts from the diverse regulation to which they had been theretofore subject.”
It is further provided in the joint baggage tariff-above referred to, that if the baggage offered is declared by the shipper to be of greater value than one hundred dollars for an adult passenger, the passenger is to be charged for such excess according to the table of excess valuation rate shown in Rule 36 of said tariff. The right of the carrier to receive compensation commensurate with the risk involved; to protect himself from fraud and imposition by reasonable rules and regulations, and to agree on a rate proportionate to the value of the property transported, was expressly recognized in the opinion in the Croninger case.
The circuit court was of opinion, however, that a distinction must be made between a contract for the transportation of an article for a certain charge, based upon value, and a contract for the carriage of personal baggage, free of charge, and as an incident to the purchase of a railroad ticket, the cost of which is unaffected by the amount or value of the baggage to be transported;
We cannot, however, accept this as a correct view of the law.
The Carmack Amendment, in so far as it is material to the consideration of this case, reads as follows:
“That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bilí of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered, or over whose line or lines such property may pass; and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.”
Baggage is- property within the terms of the statute; and that the transportation of persons from one state to another is interstate commerce as fully as the like transportation of property, and as much within the regulative power of Congress, clearly appears from the “White Slave Traffic Act” cases. See Hoke v. United States, 227 U. S., 308.
Commerce Commission, charge for baggage in excess of the minimum weight. Adams Express Co. v. Croninger, supra. We see no escape from this conclusion; and, that being true, the case at bar comes squarely within the provision of the Carmack Amendment.
It is proper to say that the case of Hooker v. Boston & Maine R. R. Co., 209 Mass., 598, 23 Ann. Cas., 669, was decided on September 6, 1911, before the Croninger case was decided.
The circuit court erred in following that case, and in sustaining the demurrer to the answer.
“No. 1. The jury will find for the plaintiff the reasonable and fair market value of the articles contained in plaintiff’s trunk at the time the same was delivered to the defendant at Nashville, Tenn., to be sent to Bowling Green, Kentucky, the amount, however, not to exceed the ■sum claimed in the petition, to-wit: $516.00.”
Appellee insists that this instruction was wrong, and that the court should have instructed the jury that her measure of damage was what it would have cost her to supply the lost clothing and wearing apparel.
In 6 Cyc., 676, the rule is stated as follows:
“In general the measure of damage for loss of baggage is the value thereof, without regard to extra expense incurred on account of such loss, unless it was within the contemplation of the parties; and the owner cannot recover for expense of searching for it in addition to its value, nor attorney’s fees in bringing the action. But the value of personal baggage is to be determined by what it is worth to the owner, and not what it would bring on the market. ’ ’
See Cooney v. Pullman Palace Car Co., 121 Ala., 368, 53 L. R. A., 690; Fairfax v. N. Y., C. & H. R. R. Co., 73 N. Y., 167, 29 Am. Rep. 119; Turner v. R. R. Co., 75 S. C., 58, 7 L. R. A. (N. S.), 88; St. L. & S. F. R. R. Co., v.
In Fairfax v. N. Y., C. & H. R. R. Co., supra, the action was brought to recover the value of a portmanteau and its contents, which had been lost through the negligence of the railroad company. In sustaining the ruling above announced, the Court of Appeals of New York said:
‘ ‘ The court did not err in charging the jury that the plaintiff was entitled to recover the full value of the clothing for use to him, in New York, and not merely what it could be sold for in money. The clothing was made to fit plaintiff, and had been partly worn. It would sell for but little, if put into market to be sold for second hand clothing, and it would be a wholly inadequate and unjust rule of compensation to give plaintiff, in such a case, the value of the clothing thus ascertained. The rule must be the value of the clothing for use by the plaintiff. No other rule would give him a compensation for his damages. This rule must be adopted, because such clothing cannot be said to have a market price, and it would not sell for what it was really worth.”
It is true, the general rule is, that in cases of loss of goods, for which a carrier becomes liable, the measure of damage is the value of the goods at the point of destination ; but this general rule is not applicable in every case, and to every class and species of personal property. The rule applies more especially to goods shipped by a merchant in the ordinary course of commercial traffic, where a profit is expected to be realized from a sale at the point of destination, at a price above the cost price at the place of shipment. But ordinary wearing apparel does not come within this general rule. It is not held for sale, and if sold, it could be sold only as second hand clothing, and bring but comparatively little. In other words, a coat which one has had made to fit him, would not fit another man; and while it would be worth $25.00 to the owner, it would not be worth half that sum to any one else.
Furthermore, ordinary wearing apparel, although not made to order, and worn only a few times, is worth much more to the owner than its market value as second hand clothes. The value of personal wearing apparel of daily use, carried on the journey, is not determinable by the market. No two sets of second hand effects of this kind
G. H. & S. A. Ry. Co. v. Fales, 33 Tex. Civ. App., 461; Wells-Fargo Co. v. Williams (Tex.), 71 S. W., 314; Railway Co. v. Frame, 6 Colo., 385; McMahon v. City of Dubuque, 107 Iowa, 62; 70 Am. St. Rep., 143.
In Int. & G. N. Ry. Co. v. Nicholson, 61 Tex., 550, the rule in cases of this character was stated as follows:
“As compensation for the actual loss is the fundamental principle upon which this measure of damages rests, it would seem that the value of such goods to their owner would furnish the proper rule upon which he should recover. Not any fanciful price that he might, for special reasons, place upon them, nor, on the other hand, the amount for which he could sell them to others, but the actual loss, in money, he would sustain by being deprived of articles so specially adapted to the use of himself and his family.”
Clearly, therefore, the general rule does not apply here; and that in cases of this character the loser’s measure of damage is the value of the clothing for use by the owner. Any other rule would not compensate the owner for his loss. The market value rule applied by the court was erroneous. It should have given an instruction as above indicated.
Reversed upon both original and cross appeal.
