ANTONE ZETLER, Respondent, v. TONOPAH AND GOLDFIELD RAILROAD CO., Appellant
Zetler v. Tonopah & Goldfield Railroad
ANTONE ZETLER, Respondent, v. TONOPAH AND GOLDFIELD RAILROAD CO., Appellant.
[No. 1889]
ANTONE ZETLER, Respondent, v. TONOPAH AND GOLDFIELD RAILROAD CO., Appellant.
1. Carriers — Baggage—Limitation oe Liability.
If it be conceded that passenger carriers by specific rules which are reasonable, and not inconsistent with the -statutes or with their duties to the public, and which are distinctly brought to the knowledge of the passenger, may protect themselves against liability as insurers of baggage exceeding a fixed value except upon payment of an additional compensation proportioned to the risk, a contract so limiting the amount of liability does not relieve the carrier of liability for baggage lost through its negligence.
2. Carriers — Baggage—Negligence—Wrong Delivery.
The delivery of a passenger’s baggage at carrier’s baggage room to a person not entitled to receive it is such negligence as makes the company liable, notwithstanding a contract limiting its liability to a fixed value.
Norcross, J., dissenting.
Appeal from the Seventh Judicial District Court, Esmeralda County, Nevada; Theron Stevens, Judge.
Action by Antone Zetler against the Tonopah and Goldfield Railroad Company. Judgment for plaintiff; defendant appeals.
Affirmed. [Petition for rehearing pending.]
The facts sufficiently appear in the opinion.
Campbell, Metson & Brown, Walter Shelton and Huger Wilkerson, for Appellant:
The contract contained in the ticket is binding and valid. (Jacobs v. Central R. Co., 208 Pa. St. 535, 57 Atl. 982; Rose v. Northern Pac. Ry. Co., 88 Pac. 767; The Priscilla, 106 Fed. 739; Belger v. Dinsmore, 51- N. Y. 166, 10 Am. Rep. 575; Pacific Exp. Co. v. Foley, 26 Pac. 667; Michalitschke v. Wells, Fargo & Co., 50 Pac. 847; Ballou v. Earle, 17 R. I. 441, 33 Am. St. Rep. 881; Hart v. Penn. R. Co., 112 U. S. 331, 28 L. Ed. 717; Alair v. Northern Pacific R. Co., 53 Minn. 160, 39 Am. St. Rep. 588.)
H. H. Brown, for Appellant, on petition for rehearing:
On January 4,1913, the decision and opinion was filed in this case by a divided court, affirming the judgment below and holding that the limitation of liability, for loss of baggage,- is not binding on the respondent.
On January 6, 1913, the Supreme Court of the United States handed down its decisions and opinions in three similar cases, involving the same question, and holding that under a congressional regulation of interstate commerce (the Carmack amendment of 1906), the limitation of the liability is binding on the respondent. (Adams Express Co. v. Croniger, 226 U. S. 491; C. B. & Q. Co. v. Miller, 226 U. S. 513; Chicago, St. Paul, M. & O. Ry. Co. v. Latta, 226 U. S. 519.)
The Zetler case involved an interstate transaction, wholly within the purview of the Carmack amendment. The decisions of the United States Supreme Court are controlling in the case at bar.
James Donovan, for Respondent:
It is urged by appellant that respondent is bound by the sixth subdivision contained in the ticket which was offered in evidence by defendant. We submit that there is no force in this statement, for no such contract as is embodied in this ticket can bind the plaintiff under the law of. the State of Nevada; such contract is unilateral, inequitable, against the public policy of the State of Nevada, and against the express statutory provisions. (Comp. Laws, 1013,1017; Rev. Laws, 3553, 3559.)
"The contract contained in the ticket is binding and valid.” This is only true under certain conditions, and the courts will not look with favor upon these contracts when they are not, in the strict sense of the law, contracts. Wherever a carrier of freight or passengers fixes a settled rate that the public can either accept or walk, courts in this day do not look upon these as contracts, in the strict sense of the term; it is not the meeting of the minds of the carrier and passenger and the agreement of a certain price, but it is an arbitrary contract, forced involuntarily upon the passenger which he must accept or he cannot ride. For this reason, carriers being quasi-public institutions, the legislatures of the different states, and Congress itself, have assumed a right to fix these rates within limitations; if it were a private contract, Congress could not do this, nor legislatures either, and it is only under certain exceptional conditions that contracts of this character will be held binding, especially in reference to the limitation of the liability of the railroad corporation. There must be an additional consideration given from the railroad company to the passenger outside of the regular fixed rate in order to limit the liability for baggage so as to bifid the passenger. Courts no longer hold, where there is a uniform rate fixed which is general in its character, that these limitations are binding, but they only hold where there is an additional consideration going to the passenger from the railroad company that these limitations are binding. (Hooker v. Boston and Maine R. R. Co., 209 Mass. 598, 95 N. E. 945.)
The settled law of this country at the present time, as we view it, is this: that where there is a fixed rate for the general public as passengers between certain points that the limitations are not binding; that they are binding only where the passenger travels upon a ticket that is sold for less than the regular rate, and by reason of selling the ticket to the passenger at a lesser rate, the passenger, in consideration of that lesser price, agrees to the limitation of the liability to a certain fixed amount. This is as far as the courts will go in support of the contention of the appellant in this case.
In Reply to Petition for Rehearing: The cases cited by appellant and upon which a rehearing is sought are wholly inapplicable to any points involved in the case at bar. There is a wide and conflicting difference between liability in the transportation of ordinary personal property by freight carriers or express carriers and the liability created by the carriage of baggage upon a passenger ticket.
In so far as we have been able to gather from the cases cited, the principle heretofore announced has not been varied by what the appellant terms the Carmack amendment to the interstate commerce act, neither do these decisions in anywise interfere with the modified rule as we have declared, but they simply confirm what we say is the rule of law applicable to such cases.
By the Court,
Talbot, J.:
This is an appeal from a judgment in favor of the plaintiff for $783.95 for damages for the loss of baggage and from an order denying defendant's motion for a new trial.
The baggage was checked on a ticket which bore a number of written conditions, among which was the one: "It is agreed that the value of the baggage transported under this ticket shall not exceed one hundred dollars." Under the contentions made it may be conceded for the purposes of this case that "it is competent for passenger carriers by specific regulations which are reasonable and not inconsistent with any statute or its duties to the public, and which are distinctly brought to the knowledge of the passenger, to protect themselves against liability as insurers of .baggage exceeding a fixed amount in value, except upon additional compensation proportioned to the risk." (Moore on Carriers, sec. 52.) Even if so, it has been held, where such is acknowledged to be the law by decision or even by statute, that the carrier is liable for the baggage lost through .his negligence, notwithstanding a valid contract limiting the amount of the liability. (Tewes v. North German Lloyd S. S. Co., 42 Misc. Rep. 148, 85 N. Y. Supp. 994; Holmes v. North German Lloyd S. S. Co., 184 N. Y. 280, 77 N. E. 21, 5 L. R. A., N. S., 650; Saleeby v. Central R. Co. of New Jersey, 99 App. Div. 163, 90 N. Y. Supp. 1042; Williams v. Central R. Co. of New Jersey, 93 App. Div. 582, 88 N. Y. Supp. 434; Saunders v. Southern Ry. Co., 128 Fed. 15, 62 C. C. A. 523; Bank of Kentucky v. Adams Exp. Co., 93 U. S. 174, 23 L. Ed. 872; New York Cent. R. R. Co. v. Lockwood, 17 Wall. 357, 21 L. Ed. 627.)
As it appears that the damage was occasioned by the delivery of the trunk by the plaintiff at the baggage room to some person not entitled to receive it, we think this was such negligence on the part of the company as to render it liable for the value of the articles lost, notwithstanding the contract.
Respondent moved to strike the statement from the files because not filed in time, but we think it was filed within the time properly allowed by extensions.
The judgment of the district court is affirmed.