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# FILED September 18, 1997 Cecil Crowson, Jr. App ellate C ou rt Clerk IN THE COURT

OF APPEA LS OF TEN NESSEE WESTERN SECTION AT J ACKSON SURINA R. CRAWFORD, SHELBY CI RCUIT No. 60468 T.D. C.A. No. 02A0

1-9612-CV-0

0296 Plaintiff, Hon. James E. Swearengen, Judge V. DELTA AI RLIN ES, IN C., A Delaware Corporation, Defe nda nt. JOSEPH K. WILLCOX, Kim, Willcox & McArthur, Memphis, Atto rney for Plaintiff. EDWARD P. A. SMITH and STEPH EN P. MILLER, McDo nald Kuhn, Memphis, Attorn eys f

or De fend ant. REVERSED AND DISMISSED Opinion filed: TOMLIN, Sr. J., Surina Crawford (hereafter “Pl aintiff”) filed suit in the Circuit Court of Shelby County against Delta Airlines (hereafter “ Defendant” or “D elta”) seeking damages fo r the loss of fo ur pieces o f luggage a nd thei r cont ents which
oc cur red whi le o n a tr

ip ut ilizing bo thDe lta an d an ot her ai rlin e, Tr

an s Wor ld Airli nes (“TWA”) . At tria l D el ta con tend ed th at its l iabi li ty, if a ny, was l im ited to the sum of $1,250

, as established by domestic t ariff rules adopted by t he airlines and incorpor

ated by reference in its tickets. The trial cour t submitted the issue of Plaintiff’s notice of

the t ariff and that

of Plaintiff’s alleged damages to the jury as fact issues. At the cl ose of Plai ntiff’s proof and again at the close of al l the proof Del ta ma de a moti on fo r di rec ted ve rdi ct on th e gro und that Pl ain tiff f ail ed to prove her damages. The t rial court overruled the motion and t he jury returned its verdict, finding that Plaintiff had not received adequate not ice of the limitation of liability for lost pro perty pursuant to t he airline tariff and awarded Pl ain tiff a jud gme nt in th e am oun t of $6, 466 a s he r da mag es. O n app eal Del ta has raised three issues for our considerat ion: Whet

her the t

rial court erred in (1)2

holding as a matter of law that TWA was act

ing as an agent f

or the Delta; (2) refusing to limit Delta’s liability tothe sum of $1,25 0, as provided by t

he tariff; and (3) overruling Delta’s motion for a directed ver dict on the g round that Plaintiff failed to prove her damages. Inasmuch as our resolution of the t hird issue is dispositive of t

his litigation, we pret

ermit the first

two issues and reverse and dismiss Plaint

iff’s suit on the g round t hat t he tr ial court should have di recte d a verd ict as

to dam ages

in fa vor o f Def

end ant. Most of t

he underlying facts are not in dispute. Plaintiff purchased an airlin e ticket from a loc al travel agency in Me mphis for r ound-trip travel from Memphis to Ft. La uderdale, Florida. On the outbound leg of t he trip she t

raveled from Mem phi s to Atl anta o n Del ta, wh ere she trans ferr ed to T WA for the fl igh t to Ft. Lauderdal e. Plaintiff had no trouble w ith her baggage on this l eg of the trip. Plaintiff’s ticket

was a round-trip t

icket. On ret

urning to Memphis, she che cke d fou r bag s wi th TWA in Ft. Lau der dal e. He r tick ets c al le d for her to return toMemphis from Atlanta on Delta. When she arrived in Memphis and went to the baggage clai m section for he r luggag e, they were not there. Upon returning t

o the airport

the following day her bags still had not arrived. She subsequently filled out a passenger property loss claim form presented to her by Delta. Several days after concluding her return f light to Memphis Plaintiff submitted the completed loss baggage claim form to Delta, which contained the following items which she sought to reco ver:

ITEM DESCRI PTION DATE PURCHASED COS T NE W Luggage Set 4 Pi ece Black/w hite tweed 200.00

Smal le st

Bag Bag of Shoes 660.00 Next smal le st

bag Bag of summer clothes 1,080. 00

Mediu m Bag Wa rm-ups & gym clothing 1,426. 00

Lar ges t Bag Dres s Cl othi ng 3,100. 003 To ta l V a lue U.S .$ $6,466. 00 $6, 466.00 Shortly thereaft

er Delta informed Plaintiff tha t her missing baggage had not t urned up an d that

pursuant

to t he prov isions o f the tariff and t icket cont ract covering her travel Delta’s liabil ity was limited to $1, 250.00. In order tosettle this los s D elt a t end ere d a che ck t

o Plai nt if f f or th is a mou nt

, le ss m on ies

pr ev io usly advanced to her, which she decl ined. It can be noted t

hat from t

he portion of

the Plaintiff’s lost b aggage claim form introduced into ev idence, the amount o f Plaintiff’s claim, $6,466.00, was based upon and represented t he “cost new” of t

he four pieces of luggage, along wit

h thei r cont

ents. As not

ed, t he tr ial court permit ted t he issue o f not

ice to Plaintiff of the tariff lim itations as wel l as the dam age issue to go to the jury, who found that

there was inadequate no tice and that Plaintiff’s damages amounted to the amount set forth in her l ost property claim form, name ly, $6,466.00. This appeal foll owed. I. The Directed Verdict Issue. The action of

a trial judge in ruling on a motion for directed verdict is one of law, and is ther

efore r eviewed de novo

. Adams v. De an Roofing Co. , 715 S.W.2d 341 , 343 (

Tenn. App. 1986

). As this court

stated in Hurley v. Tennessee Farmers M ut. Ins. Co. , 922 S.W.2d 887, 891 (Tenn. App. 1995): When deciding a motion f or directed verdict, both t he trial court and the reviewing court on appeal must look to all the evidence, take t he strongest

legitimate view of t

he evidence in favor of t he opponent of

the motion,and allow al l reasonable inferences in favor of t

hat part y. The court

must discard all countervailing evidence , and if there is then any di spute as to any material fact, or an y d ou bt

as toth e co nclu sio ns t

o b e dr awnfr om t he who le evidence, the mot

ion must be denied.
It is clear from this record that Plaintiff, from the time she submitted her claim to Delta, to and through her testimony at trial bel ow, stated the amount of her los s as the cost, new, of her luggage and the cont ents thereo f. This is borne4

out fi rst of

al l b y the i nformati on pr ese nted on the cl aim form that sh e fil ed w ith Delta, which she swore under oath t o be “accurate, co mplete and true.” Her oral tes timony at t rial below was t

o the same end: Q . . .Now, you notice that on that form it has a cost and new, and is tha t wh at

you have writ

tenat the amoun t -- t

he ne w cost of e achit

em? A Yes, sir. Q And did you fill that in? A No, sir. Q Did you know when t hey were p urchased? A I can not say when each item was pur chased, I could n’t say that. In our opinion, the measure of damages sought to be ut

ilized by Plaintiff is not t he law in this state t

o be applied to a loss occasioned such as this. T he proper measure of

damages fo r the loss of per sonal prop erty

is the actua l value of the property to the owner at the time of the loss. Merritt v. Nat ionwide Ware house Co ., Lt

d. , 605 S.W.2d 250, 256 (Tenn. App. 1980), Cook & N ichols, Inc. v. Peat, Marwick, M itchell & Co. , 480 S.W.2d 542, 544 (Tenn. App. 1971), Clift v. Fulton Fire I ns. Co. , 315 S.W.2d 9, 44 Tenn. App. 483 ( Tenn. App. 1958

). This court is of the opinio n that

of the t hree cased cited above, t he court in Clift

explains with the great

est clarity t

he doctrine of 

### <

value to the owner.’ In Clift Plaintiff, who had suffered a loss of household goods and personal effects in a fire, t estified as to t he reasonable value of each item of the go ods lost. In so doing, she test ified that such was her intent. In sustaining t he position on damages t aken by Plaintif f, t his court said: . . .If the goods are r

eadil y replac eable i n a current market, 

### < market value’ is t

he measure; but if the re is no mar ket, or if t

he market

value is inadequate, t

he proper measure is the 

### < value to the owner’, o r the loss he suffe rs in bein g deprived of t he goods

. 

### < This doctrine [of 

### <

value to the owner’] is most fr equently and conveniently resorted t o in cases of loss of, or damage to , articles which the plaintiff has acquired for perso nal or domestic use and5 not for business purpo ses, such as household goods, clothing, pic tu res , bo oks , a nd t he li ke. Wh ile us

ually th ese th ing s ha ve s

ome slight value for sale at secondhand, this market value would be a very inadequate compensat ion to t he plaintiff who acquired them for use, not for sale. The fact t hat t he property was of

this character

, that is, used clothing or household goods intended for t he owner’s use, is a sufficie nt sho wing th at mark et va lue as secondha nd goods is an ina ppropr

iate stan dard, and casual holdings t hat p roof must be made that there is no m arket value c an hardl y be supported.’ In ascertaining the value of goods under t his more elastic standard of 

### < value to the owner

’, evidence of the original c ost, of the cost of replacement, the condition of the goo ds, the use of which they wer e bei ng pu t, and al l o ther r el evan t facts, are to be tak en i nto consideration. The goods covered by t his policy were household goods, furniture, wearing apparel, and numerous other articles which had been acquired by plaintiffs for personal use of t hemselves and their children in their home; and the value of such goods is t o be est ima te d no t b y t

he mar ke t value , n ot

by wha t t hey co uld b e so ld for in the market

as secondhand goods, but by the more elastic standard of 

### <

value to the owner’. The proof of dama ges offered by Pl aintiff did not comp ly with the l aw of damages under these circumstances in this st ate. The b urden of proof was clearly on the Plaintiff to “pr esent some approximation of the act ual damages so they may be det

ermined with some reasonable certainty by the jury.” Underwoo d v. Water

slides of Mid-America, Inc. , 823 S.W.2d 171, 184 (Tenn. App. 1991). T his the Plaintiff did not do. We find as a matter of law that Plaintiff fa iled to properly prove her damages in accordance with law. Accordingly, the trial court erred in failing to g rant Delta’s mot ion for directed verdict . We t herefore reverse the jud gment of the trial cour t in failing to grant a direc ted verdict for Defendant in t

his case and dismiss plaintiff’s suit. Cost s in this cause on appeal are taxed to Plaintiff for w hich exec ution may issu e if necess ary.

_________________________________________ TOMLIN, Sr. J.

__________________________________________6 CRAWFORD, P. J., W.S. (CONC URS)

__________________________________________ HIGHE RS, J. (CONCURS)