
    Common Pleas Court of Montgomery County.
    King Bros. Transportation Co. v. Altherr.
    Decided January 21, 1932.
    
      McMahon, Conoin, Landis, & Markham, for plaintiff in error.
    
      H. L. Shellenberger, for defendant in error.
   Snediker, J.

This case is before the court on error to the judgment of the muncipal court, civil division, where the defendant in error was awarded a recovery of $150.00 and costs from the plaintiff in error.

The plaintiff in error is a common carrier for hire. The defendant in error was its passenger. On or about the third day of March, 1931, the defendant in error, desiring to go to Higginsport, Ohio, decided to travel to Cincinnati in one of the buses of King Bros. Transportation Company. That company had a terminal in what is known as the Central Bus Terminal, in this city, at which place the plaintiff in error and other bus lines arrived, took on passengers, and departed. When defendant in error came upon the grounds of the bus terminal she had in her possession ao brown suitcase and a carton containing some of her personal effects. Before she entered the ticket office, a porter employed by the Greyhound Lines, which latter was the owner of the terminal and lessor of the plaintiff in error, approached the defendant in error and inquired of her with reference to her purpose. She replied that she was intending to go to Higginsport. He took her suitcase and carton and set the suitcase with the other luggage alongside the bus of the plaintiff in error. This porter, who was in the employ of the Greyhound Lines, by virtue of the contract between those lines and the plaintiff in error, was at that time carrying baggage intended to be transported by the buses of the plaintiff in error and was, so far, its servant.

After this defendant in error saw her suitcase located as we , have described, she went into the ticket office and there purchased a ticket from the agent in charge. Her ticket was a ticket of the King Bros. Transportation Company. It was to Higginsport, and on the reverse side — a thing which she did not notice — there was a limitation on the liability of the plaintiff in error for loss of baggage to the amount of twenty five dollars. No explanation was made to her with respect to that fact, nor was her attention directed to it. When she purchased her ticket the defendant in error inquired as to whether or not she needed any check for her baggage. Finding it unnecessary, she secured none. Thereupon she went to the bus and took her place.

Her testimony is that at that time she saw her brown leather bag still setting alongside the bus; and she also says that when the baggage was handed up to the driver to be placed on top of the bus, “the porter tossed it (her brown leather bag) up to the driver,” and she reiterates this claim in her testimony. The same person who received the baggage from the porter drove the bus.

After this the bus was filled up and proceeded southwardly, going through Centerville and Lebanon to Reading and Cincinnati. When she reached Cincinnati and got out, she waited for her suitcase to be passed to her and, not receiving it, she called attention to the fact and told them, “I believe you have overlooked my suitcase, I have one up there.” The response was, “I will look again.” She never saw her suitcase after it was. placed on top of the bus at Dayton, Ohio. When she did not receive it in Cincinnati she reported her loss to the ticket agent there. In a short time she came back to Dayton and not having the baggage returned to her brought this action for the recovery of its value. Her suitcase contained dresses shoes, hats, coats, pajamas, slips, a corset, a scarf, ivory toilet set, and some other things which are ordinarily taken by a woman of her station, travelling and expecting to remain away for a- short time. Her evidence is that the value of what she lost amounted to approximately $150.00.

The defenses to the claim of the plaintiff below are: first, that the porter of the Central Bus Company did not hand over plaintiff’s suitcase to the defendant’s agent and that the driver did not place her baggage on top of the bus; second, that the liability of the King Bros. Transportation Company is by the endorsement on the ticket “not to exceed $25.00 on each ticket.”

As to the first defense, we find the facts as we have already stated them.

Some question is made as to whether or not at the time this defendant in error delivered her baggage to the porter, who, as we have said, was acting for and on behalf of the plaintiff in error as well as for the Greyhound Lines, she was a passenger of the plaintiff in error. The authorities are generally to the effect that under the circumstances which we have related she was such a passenger.

In the 115 North Carolina, at page 602, in the case of Hansley v. Jamesville & Washington R. R. Co., the court held:

“The contract of carriage by a common carrier begins when a passenger comes upon the carrier’s premises or conveyance for the purpose of buying a ticket within a reasonable time, or after having purchased a ticket; and the relation, once constituted, continues until the journey contracted for is concluded and the passenger has left or has had reasonable time to leave such premises.”

In the case of Norfolk & Western R. R. Co. v. Galliher, 14 Virginia Reports, page 639, the first syllabus is:

“Every citizen is prima facie entitled to become a passenger on a railway train. Neither the purchase of a ticket nor the entry into a car is essential to create the relation of carrier and passenger. When a person enters a ticket office of a railroad company to buy a ticket, he is entitled to protection as a passenger though the agent refuses to sell him a ticket.”

In the opinion we find this language:

“The declaration alleges that the plaintiff presented himself at the window of the ticket office at the scheduled time of the train departure of the defendant company, and in good faith asked to buy and pay for a ticket to Abbington (his home) ; and he was entitled to the courtesy and protection due to a passenger from the moment he entered upon the premises of the defendant company.”

It may be here said that the Greyhound Lines’ station became the premises of the plaintiff in error by virtue of its contract as lessee with the Greyhound Lines.

In the 36th Federal Reporter, page —, the second syllabus reads:

“A person in good faith coming to the depot for the purpose of taking passage on the cars is to be regarded as a passenger although a ticket may not have been purchased.”

In the case of Sarah Gordon v. The Grand Street & Newtown R. R. Co., 40 Barber, page 546, we find the following:

“Neither an entry into the cars upon a railroad nor the payment of the fare is essential to create the relation of carrier and passenger. Being within the waiting room waiting to take the cars is as effectual to make one a passenger as if he were within the body of a car.”

Finding, therefore, that at the time she came upon the premises with the intention which she had and which she pursued to the ultimate purchase of a ticket and embarkment on the bus of the plaintiff in error, this defendant in error was then and there a passenger, what was the liability of the plaintiff in error as a common carrier to her as such passenger?

The first case on this question, decided by the Supreme Court of Ohio, and which has never been modified or reversed, is that of James Jones, by his next friend, v. John and Peter Voorhees, found in the 10 Ohio Reports at page 145. This case is with respect to the proprietors of a stage coach and a passenger. The only difference between the facts of the Jones case and those of the instant case is one of power and not of law. The stage coach, of course, was pulled by horses, and the bus of the plaintiff in error used a gasoline engine. The syllabus of the Jones case reads:

“Proprietors of stage coaches are common carriers, and their liabilities cannot be limited by actual notice to a traveller that his baggage is at his own risk.”

Judge Wood in deciding the case discussed the English authorities as well as those of some of the other states and, the baggage of the passenger having been lost after it had been taken charge of by the carrier, held:

“However valuable an article of baggage may be it seems 'now to be well settled by the authorities that the owner is not bound to disclose such peculiar - value to the carrier unless inquiry is made. If the carrier makes no inquiry and no artifice is made use of to mislead him, he will be answerable for the loss, however great the value may be. Jones on Bailment, 105; 2 Kent’s Commentaries, 468; 5 Bing, 217; 4 Bing, 218. But all the authorities are agreed that if any deception is intentionally practiced the fraud avoids the contract. The watch is the only item in this case the value of which it is claimed should be excepted from the amount of damages provided the defendant cannot limit their responsibility by notice brought to the knowledge of the plaintiff; and it therefor follows as the result of our opinion that the plaintiff is entitled to recover for the whole amount, with interest, as found by the jury, and for which judgment will be entered.”

A decision of the Court of Appeals of Summit County, found in the 25 Ohio Appellate, at page 538, is to the effect that:

“Proof of the loss of a passenger’s hand-bag taken in charge by the agent of a common carrier establishes a prima facie case of damages and puts such carrier upon its defense.”

Not only do we find these authorities in our own state supporting the contention of the defendant in error, but there are many authorities in other states and in the general text-books to the same effect, some of which are quoted in the brief of counsel for defendant in error.

In the case of Little Rock & H. S. W. R. R. Co. v. Record, 85 S. W., 421, it is held:

“A passenger who accepts a ticket and baggage check without any knowledge of a condition on the back of the ticket limiting the carrier’s liability to its own line is not bound by such condition.”

In the case of Camden & Amboy R. R. Co. v. Baldauf, 16 Pa. St., 61, the court held that,

“Where a trunk was lost and no proof given as to when or how it was lost the legal inference is that it was lost or mislaid in consequence of the negligence or fraud of the carrier or his agent. Carriers cannot even by a special agreement with the owner discharge themselves from the ordinary care incumbent on a bailee for hire.”

In the case of Burnett v. Ritter, 276 S. W., 347, the court say:

“Generally common carriers of goods are liable as insurers. excusable for loss of goods only from the act of God, public enemy, or negligent act of the shipper. Carriers of passengers are common carriers with respect to the baggage of their passengers, and generally carrier’s liability from baggage entrusted to its care is the same as that of a carrier of goods which is that of an insurer.”

Having found that the defendant in error did place her baggage in the custody of the plaintiff in error and that at the time this was done she was its passenger, and not finding that she was informed of the limitation of liability claimed by the plaintiff in error, and further finding that her baggage was lost and never returned to her, and not finding any error in the record of the court below prejudicial to plaintiff in error, the judgment is affirmed.  