Lovinger v. Greyhound Lines, Inc.

Opinion

DRAPER, P. J. Plaintiff traveled by defendant bus line from New York City to Albuquerque. Ele checked three pieces of hand luggage accompanying him on his journey. Only two pieces were returned to him; the third was lost. Ele asserted the missing case contained “color transparencies, recorded tapes and manuscripts” representing 11 years of work. He valued them at $ 10,000 and filed this action to recover that amount (later increased to $50,000 by amendment to the complaint). He checked his three pieces of luggage at New York and received a baggage check for each. Each check bore, in large print, the notation “Baggage Liability Limited to $50 (see over).” The reverse side repeated the limitation of liability “unless a greater amount is declared in writing at time of checking, in which case charges for excess value will be collected and an excess valuation receipt will be issued,” and “This check is issued subject to all conditions of published tariffs.” Plaintiff [242]waited in the station for 30 minutes after receiving the baggage checks and before boarding his bus, but testified he did not see the provision limiting liability. After trial to the court, without jury, the limitation on liability was upheld, and plaintiff had judgment for but $50. He appeals.

The parties agree that federal law governs, since the transportation was in interstate commerce.

The Interstate Commerce Act provides (49 U.S.C.A. § 20, par. 11) that any common carrier by railroad receiving property for transportation in interstate commerce “shall be liable ... for the full actual loss, damage, or injuiy to such property caused by it” notwithstanding any attempted limitation. But it also states: “Provided, however, that the provisions hereof respecting liability for full actual loss, damage or injury, notwithstanding any limitation of liability or recovery ... shall not apply, first, to baggage carried on passenger trains or boats, or trains or boats carrying passengers.” The second provision excludes application of the same restriction to “property . . . received for transportation concerning which” liability is determined by valuation declared by the shipper under tariffs of the carrier. Another section (49 U.S.C.A. § 319) makes section 20, paragraph 11 applicable to common carriers by motor vehicle. The United States Supreme Court held that a tariff regulation limiting liability for a passenger’s baggage, in the absence of a higher declared value, was valid (Boston & M. R. Co. v. Hooker, 233 U.S. 97, 119-121 [58 L.Ed. 868, 878-879, 34 S.Ct. 526]). A later decision (New York C. & H. R. R. Co. v. Beaham, 242 U.S. 148 [61 L.Ed. 210, 37 S.Ct. 43]) followed the like rule. The court held (p. 151 [61 L.Ed. p. 216]) that “acceptance and use of the ticket” (which stated the limitation and provided for declaration of a greater value and payment of excess charges) “sufficed to establish an agreement prima facie valid which limited the carrier’s liability.”