Annotate this Case

180 S.E.2d 102 (1971)

278 N.C. 378


No. 18.

Supreme Court of North Carolina.

April 14, 1971.

*106 Boyce, Mitchell, Burns & Smith, Raleigh, for plaintiff.

Teague, Johnson, Patterson, Dilthey & Clay and Paul L. Cranfill, Raleigh, for defendant.

*107 BRANCH, Justice:

Plaintiff contends that the trial judge erred when he granted defendant's motion for a directed verdict.

Plaintiff, inter alia, contends that defendant became an insurer of his baggage because plaintiff was separated from his baggage by the negligence of defendant's agents.

If defendant were an insurer, plaintiff would be entitled to recover, without proof of negligence, upon proof of delivery to defendant and of failure of defendant to deliver, unless defendant could carry the burden of showing that the loss was caused by an act of God, the public enemy, the negligence of the shipper, or by the inherent qualities of the goods. Merchant v. Lassiter, 224 N.C. 343, 30 S.E.2d 217; Perry v. Seaboard Air Line R. Co., 171 N.C. 158, 88 S.E. 156. For defendant to be liable as an insurer there must have been a delivery and acceptance of the baggage into the exclusive custody and control of defendant as a carrier for its transportation. National Fire Ins. Co. v. Yellow Cab Co., 205 Ark. 953, 171 S.W.2d 927; Blair v. Pennsylvania Greyhound Lines, 275 Mich. 636, 267 N.W.2d 578; Southeastern Greyhound Lines v. Berrie, 31 Ala.App. 178, 13 So. 2d 696.

Here, plaintiff purchased a ticket but kept complete control and custody of his baggage, and defendant had no custody or control or even knowledge concerning the baggage until plaintiff notified defendant's agent in Columbia, South Carolina, of his loss. We therefore do not think that defendant was liable as an insurer.

We observe, parenthetically, that aside from any breach of contract or strict bailment, if plaintiff had been left in Columbia, S. C. because of the negligence of defendant, he could proceed under the general law of torts to recover any damages proximately resulting from the negligent act. Schouler, Law of Bailments, 2d Ed., Carrier of Passengers, § 684, p. 748; Heath v. Kirkman, 240 N.C. 303, 82 S.E.2d 104.

We must, however, consider the possibility of liability upon a showing of negligence where other relationships of bailor and bailee exist.

This Court has classified bailments as those (1) for the sole benefit of bailor, or in which relationship the bailee will be liable only for gross negligence, (2) for the bailee's sole benefit, in which relationship the bailee will be liable for slight negligence, and (3) those for the mutual benefit of both parties, in which relationship the bailee will be liable for ordinary negligence. However, "the terms `slight negligence,' `gross negligence,' and `ordinary negligence' are convenient terms to indicate the degree of care required; but, in the last analysis, the care required by the law is that of the man of ordinary prudence. This is the safest and best rule, and rids us of the technical and useless distinctions in regard to the subject; ordinary care being that kind of care which should be used in the particular circumstances and is the correct standard in all cases. It may be high or low in degree, according to circumstances, but is, at least, that which is adapted to the situation." Hanes v. Shapiro & Smith, 168 N.C. 24, 84 S.E. 33. A bailment solely for the benefit of the baileea gratuitous bailmentmay be effected with respect to baggage when the property comes into the hands of a carrier as an involuntary trust through accident or mistake. 14 Am.Jur.2d, Carriers, § 1240, p. 636. When a passenger stops or lies over at an intermediate point on his journey, without consent of the carrier, and permits his baggage to go on without him, the carrier is liable as a gratuitous bailee. 4 Elliott on Railroads, 2d Ed. § 1652A, and Kindley v. Seaboard Air Line Railroad Co., 151 N.C. 207, 65 S.E. 897.

In the case of Perry v. Seaboard Air Line R. Co., supra, the plaintiff offered *108 evidence which tended to show that on 3 December 1913 he bought a ticket on Southern Railway from Goldsboro to Raleigh and checked his baggage containing wearing apparel of the value of $50.00. The bag remained in the baggage room at Union Station in Raleigh from 7:00 P.M. on 3 December until the morning of 4 December. On the night of 3 December plaintiff bought a ticket from Raleigh to Henderson via defendant Seaboard Air Line Railroad and went to Henderson on Seaboard, without checking his bag. On the morning of 4 December he requested defendant's agent to have his bag brought to Henderson from Raleigh. Defendant's agent complied with plaintiff's request, and when the bag was received, plaintiff's clothes were missing. Defendant's evidence tended to show that there were no clothes in the bag when it was delivered to them and that they were not negligent in any respect. The Court, holding that the defendant was a gratuitous bailee, inter alia, stated:

"* * * [T]he baggage which must be carried by the railroad company, without compensation beyond the passenger's fare, is such as is required for the necessity, convenience, or pleasure of the passenger, and consequently must accompany his person. * * * "The weight of modern authority is in favor of the position that proof of delivery to the carrier and of its failure to deliver is evidence of negligence sufficient to carry the case to the jury and to support a verdict, but that the jury ought to be instructed that the carrier is not liable if upon the whole evidence they do not find that it did not exercise the care of a person of ordinary prudence under the circumstances."

This Court considered bailments as related to motor carriers in the case of Neece v. Richmond Greyhound Lines, 246 N.C. 547, 99 S.E.2d 756. There, defendant carrier refused to allow the plaintiff, who was traveling in interstate commerce from New York to Greensboro, to carry on the bus a bag containing wearing apparel which exceeded the dimensions given in the tariff which defendant had filed with the ICC pursuant to 49 U.S.C.A. §§ 20(11) and 319. However, plaintiff was allowed to check the parcel and was given a baggage check which recited a limitation of liability on the part of the carrier in the amount of $25. Defendant failed to deliver the baggage on demand and plaintiff brought suit to recover $619, the asserted full value of the lost baggage. The court held that the liability of the common carrier, if any, was for the full value of the luggage as a gratuitous bailee, and that the limitation of liability did not apply because the luggage did not come within the specifications of baggage as contained in the filed tariff. In so holding, the Court stated:

"Before a motor carrier can limit its liability for negligent loss or damage to property entrusted to it, it must show: (1) it received the property as a common carrier; (2) it issued a written receipt which contained the asserted limitation; (3) the Interstate Commerce Commission has expressly authorized the limitation which is based on a rate differential. "If each of these conditions is not shown to exist, the asserted limitation has no effect. New York, N. H. & H. R. Co. v. Nothnagle, supra, 346 U.S. 128, 73 S. Ct. 986, 97 L. Ed. 1500; Caten v. Salt City Movers & Storage Co., 2 Cir., 149 F.2d 428; Union Pacific R. Co. v. Burke, supra, 255 U.S. 317, 41 S. Ct. 283, 65 L. Ed. 656, 657); Southeastern Exp. Co. v. Pastime Amusement Co., 299 U.S. 28, 57 S. Ct. 73, 81 L. Ed. 20; Sambur v. Short Lines System of Hudson Transit Lines, Inc., 201 Misc. 595, 112 N.Y.S.2d 514; Sambur v. Hudson Transit Lines, 280 App.Div. 983, 116 N.Y.S.2d 500. "Plaintiff, under the provisions of her ticket, had a right to carry on the bus with her under her control her baggage. Santa Fe Trail Transp. Co. v. Newlon, *109 195 Okl. 542, 159 P.2d 713. When so carried, baggage is in the custody of the passenger and no responsibility with respect thereto is imposed on the carrier. * * * * * * "Where a carrier of passengers receives and handles a package for a passenger which does not qualify as baggage which the passenger is entitled to have transported free, the carrier is a gratuitous bailee of the package. As a gratuitous bailee, it is liable only if the loss be occasioned by its gross negligence, Perry v. Seaboard Air Line R. R. Co., 171 N.C. 158, 88 S.E. 156; Kindley v. Seaboard Air Line R. Co., 151 N.C. 207, 65 S.E. 897; Brick v. Atlantic Court Line R. Co., 145 N.C. 203, 58 S.E. 1073; Trouser Co. v. Seaboard Air Line R. Co., 139 N.C. 382, 51 S.E. 973; 6 Am.Jur. 358. "* * * Defendant admits receipt of plaintiff's bag and its failure to return it on demand. This admission is sufficient to take the case to the jury or to require a finding by the court if a jury trial be waived."

Ordinarily, a passenger leaving personal baggage in a carrier upon alighting therefrom cannot hold the carrier responsible, but where it is shown that a subsequent loss was the proximate result of conduct of carrier's employees in failing to exercise ordinary care, through failure to take care of the baggage after full knowledge of the facts, the carrier may be held liable. 14 Am.Jur.2d, Carriers, § 1284; Kinsley v. Lake Shore & M. S. R. Co., 125 Mass. 54; Fire Ins. Co. v. Yellow Cab Co., supra; Clark v. Checker Taxi Co., 330 Mass. 20, 110 N.E.2d 849; Blair v. Pennsylvania Greyhound Lines, supra.

The baggage which must be carried by a carrier without compensation beyond the passenger's fare is such as is required for the necessity, convenience or pleasure of the passenger on his journey. Ordinarily only the amount of money necessary for the payment of expenses of the journey is considered baggage. 14 Am. Jur.2d, Carriers, §§ 1469, 1276. However, a carrier may be liable for gross negligence as a gratuitous bailee, even when the property does not properly constitute baggage. Brick v. Atlantic Coast Line R. Co., 145 N.C. 203, 58 S.E. 1073; 14 Am.Jur.2d., Carriers, § 1269; Michigan Central R. Co. v. Carrow, 73 Ill. 348.

Defendant strongly argues that plaintiff's evidence was not sufficient to show that the baggage removed from the bus by defendant's driver belonged to plaintiff, and that plaintiff's property had not been taken from the bag before it was delivered to defendant. The bus driver was "given information of baggage that was left on the bus" belonging to plaintiff. Pursuant to this information he delivered a small bag to the dispatcher. He noticed nothing unusual about the bag, and the dispatcher received the bag without comment. There is no evidence that any other passenger on the bus ever reported a missing bag. The dispatcher in Raleigh received the bag with information that it contained money and valuable contents. When plaintiff arrived about two hours later, the dispatcher was unable to deliver the bag which the driver had delivered to him.

Mr. A. W. McSwain wrote to plaintiff on defendant's letterhead and, in part, stated:

"Mr. Lucas has confirmed that you were left in Columbia, South Carolina on December 2, 1966 as you stated. Also, that you reported to him that your hand bag and hat were left on the bus. He teletyped Raleigh, N. C. to have your property removed from the bus and that you would pick them up when you arrived in Raleigh later that day. Mr. Lucas has checked with the driver who pulled this schedule and was told by Driver Howell that he did remove the hand bag and the hat as requested and turned them over to the Transportation Supervisor in Raleigh, N. C." (Emphasis added)

*110 One of defendant's theories is that the bag was opened and rifled before it came into the possession of defendant's agents. It is inconceivable that anyone would receive or wrongfully remove the bag from the custody of defendant's agents if the locks had been broken and the bag rifled before it came into the possession of defendant's agents.

We think this evidence is sufficient to support a finding that the baggage removed from the bus by defendant's driver was plaintiff's baggage, and was received by defendant's agents before the locks were broken and the bag rifled.

When the above rules of law are applied to plaintiff's evidence, we think defendant is a bailee for the sole benefit of the bailor, i. e., a gratuitous bailee. However, we conclude that classification of bailments is of little import since the degree of care required in all classes of bailments is, in truth, the care of the man of ordinary prudence as adapted to the particular circumstances. The care must be "commensurate care" having regard to the value of the property bailed and the particular circumstances of the case. Hanes v. Shapiro, supra; Safeguard Insurance Co. v. Wilmington Cold Storage Co., 267 N.C. 679, 149 S.E.2d 27. The standard of care is a part of the law of the case which the court must apply and explain. The degree of care required by the circumstances of the particular case to measure up to the standard is for the jury to decide. Jackson v. Stancil and Smith v. Stancil, 253 N.C. 291, 116 S.E.2d 817.

Thus, when a bailor, whether classified as gratuitous or otherwise, offers evidence tending to show (1) that the property was delivered to the bailee, (2) that bailee accepted it and therefore had possession and control of the property, and (3) that bailee failed to return the property, or returned it in a damaged condition, a prima facie case of actionable negligence is made out and the case must be submitted to the jury. Perry v. Seaboard Air Line R. Co., supra; Hanes v. Shapiro, supra; Pennington v. Styron, 270 N.C. 80, 153 S.E.2d 776. When a prima facie case is made out, it warrants but does not compel a verdict for plaintiff. The jury is simply authorized to find either way, and either party may lose if he offers no further proof. Star Manufacturing Co. v. Atlantic Coast Line R. Co., 222 N.C. 330, 23 S.E.2d 32; Stansbury, North Carolina Evidence, 2d Ed., § 203.

Again applying the legal principles set forth and the well recognized rules as to consideration of evidence upon motion for a directed verdict to the facts of the instant case (Bowen v. Gardner, 275 N.C. 363, 168 S.E.2d 47), we conclude that plaintiff offered evidence from which a jury could find (1) that there was a delivery of the baggage to defendant, through its agents, (2) that through its agents defendant accepted and thereafter had control and possession of the baggage, and (3) that defendant failed to return a portion of the baggage and returned a portion of the baggage in a damaged condition.

We therefore hold that plaintiff's evidence was sufficient to repel defendant's motion for a directed verdict.

We do not think that plaintiff's evidence established the defense of contributory negligence as the sole reasonable conclusion. Price v. Miller, 271 N.C. 690, 157 S.E.2d 347. There is no evidence of any negligence of any kind on the part of plaintiff after defendant assumed possession and control of the bag as bailee. Thus the action of plaintiff could not have contributed to the ultimate loss.

The questions of limitation of liability by the carrier and damages are not before us, since the trial court allowed defendant's motion to dismiss. Further, the loss alleged to have been sustained by *111 plaintiff occurred while his property was being moved in interstate commerce, and therefore appropriate federal statutes are applicable. Neece v. Greyhound Lines, supra. 49 U.S.C.A. § 319 makes 49 U.S.C.A. § 20(11) and (12) applicable to motor carriers. 49 U.S.C.A. § 20(11) states that unless provided for by a proviso of that section, no limitation of liability on a carrier will be valid. The proviso relevant to our consideration states that the carrier may limit liability for "baggage carried on passenger trains" (or on motor buses by virtue of 49 U.S.C.A. § 319) by properly filing a tariff pursuant to lawful authorization of the Interstate Commerce Commission.

"The excepted `baggage carried on passenger trains' refers solely to free baggage checked through on a passenger fare." (Emphasis added) New York, N. H. & H. R. Co. v. Nothnagle, 346 U.S. 128, 73 S. Ct. 986, 97 L. Ed. 1500; Neece v. Greyhound Lines, supra.

Neither does the record show that defendant has attempted to comply with the provisions of any federal statute which might limit its liability. Cray v. Pennsylvania Greyhound Lines, 177 Pa.Super. 275, 110 A.2d 892.

We note that defendant's cross-examination exceeded the bounds of relevancy when plaintiff was cross-examined concerning limitation of liability established by the Interstate Commerce Commission as related to a baggage check, since all the evidence showed the bag was not checked. Yadkin Valley Motor Co. v. Home Ins. Co., 220 N.C. 168, 16 S.E.2d 847.

The decision of the Court of Appeals is reversed. The case is remanded to that Court to be certified to the trial court for a new trial in accord with this opinion.

Reversed and Remanded.