
81 S.E.2d 178 (1954)
240 N.C. 20
CROWELL
v.
EASTERN AIR LINES, Inc. et al.
No. 523.
Supreme Court of North Carolina.
April 7, 1954.
*183 Jones & Small, Charlotte, for Eastern Air Lines, Inc., appellant.
Helms & Mulliss, James B. McMillan and W. H. Bobbitt, Jr., Charlotte, for Laura Crowell, appellee.
John D. Shaw and Robinson & Jones, Charlotte, for City of Charlotte, appellee.
PARKER, Justice.
The Air Lines appellant assigns as error the failure of the trial court to grant its motion for judgment of nonsuit, made at the close of plaintiff's evidence, and renewed at the close of all the evidence.
Its first contention in support of such motion is that plaintiff's action is barred for failure to file claim and bring suit in apt time as set forth in "General Rules, Paragraph 17, Claims, (A) Personal Injury and DeathTime Limitations."
The first question presented for our decision is whether under the Civil Aeronautics Act, and the Regulations of the Civil Aeronautics Board, Air Lines was required to file such a tariff rule.
Interstate air transportation is regulated in accordance with the provisions of the Civil Aeronautics Act, 49 U.S.C.A. § 401 et seq. and 49 U.S.C.A. § 483, which is entitled "Tariffs of air carriers" and which provides:
"(a) Every air carrier * * * shall file with the Board, (i. e. the Civil Aeronautics Board) * * * tariffs showing all rates, fares, and charges for air transportation between points served by it, * * and showing to the extent required by regulations of the Board, all classifications, rules, regulations, practices, and services in connection with such air transportation (parenthesis ours). Tariffs shall be filed, posted, and published in such form and manner, and shall contain such information, as the Board shall by regulation prescribe * * *." It would seem that these portions of the Civil Aeronautics Act mean that classifications, rules, regulations, practices and services shall be filed with the Civil Aeronautics Board only to the extent required by regulations of the Board.
The regulations issued by the Board pertaining to tariffs of air carriers are contained in Parts 221 to 224, both inclusive, of the Economic Regulations of the Civil Aeronautics Board, Code of Federal Regulations. Part 221.1 in subsection (d) says: "Tariff means a publication containing rates applicable to the transportation of persons or property, and rules relating to or affecting such rates or transportation * *." Part 221.4, entitled "Contents," sets forth matters which shall be included in tariffs filed by air carriers. This part or section provides in part: "Tariffs shall contain in the order named: (g) General rules which govern the tariff, i. e., state conditions which in any way affect the rates named in the tariff, or the service under such rates."
It would appear that the time limitation as to filing notice of claim and institution of action is required to be filed only if this *184 rule in any way affects the rates established by air carriers or the service under such rates. Therefore, it would seem that the sole justification for this time limitation is that it affects the services under such rates.
Webster's New International Dictionary defines "service" as "13. Act or means of supplying some general demand; as, railway service, telephone service, etc."
The Regulations of the Civil Aeronamtics Board relating to tariffs apparently indicate their opinion of what the term "service" means. Subsection (h) of Part 221.4 of the said Economic Regulations provides that tariffs shall contain "a statement of charges for excess baggage, sleeper-service, and any other like services * * *." Subsection (c) of Part 221.5 refers to "ground transportation to or from airports or for pick-up and delivery service."
49 U.S.C.A. § 483(b) of the Civil Aeronautics Act speaks of service in connection with air transportation.
A number of cases decided under the Interstate Commerce Act indicate that the term "service" as used in the field of transportation is related to the transportation operations of a carrier. See Cleveland, C. C. & St. Louis Ry. v. Dettlebach, 239 U.S. 588, 36 S.Ct. 177, 60 L.Ed. 453; Folmer & Co. v. Great Northern Ry. Co., 15 I.C.C. 33; Berg Industrial Alcohol Co. v. Reading Co., 142 I.C.C. 161, 163; Schultz-Hansen Co. v. Southern Pacific Co., 18 I.C.C. 234; Wasie Common Carrier Application, 4 M.C.C. 726, 729; Union Transfer Co., Common Carrier Application, 11 M.C.C. 194, 198; Hughes, Contract Carrier Application, 23 M.C.C. 563; Jack Cole, Inc., Common Carrier Application, 32 M. C.C. 199; Lubbock-El Paso Motor Freight, Inc., Common Carrier Application, 27 M.C.C. 585, 591.
The term "service" carries with it the concept of performance and supplying some general demand. The regulation as to time limitation to file notice of claim and to commence action requires the carrier to do nothing. The burden of this regulation rests entirely upon the passenger, and does not seem to be related to the transportation activities of the carrier or to the services it performs.
It would seem that the Civil Aeronautics Act does not require or authorize in the filed tariff the time limitation as to filing notice of claim and commencement of suit pleaded as a defense by Air Lines in this action and that such a provision is ineffective. It has been so decided in Shortley v. Northwestern Air Lines, D.C.D.C.1952, 104 F.Supp. 152; Thomas v. American Air Lines, D.C.E.D.Ark.1952, 104 F.Supp. 650; Toman v. Mid-Continental Airlines, Inc., D.C.W.D.Mo.1952, 107 F.Supp. 345. See also Glenn v. Compania Cubana de Aviacion, S.A.D.C.S.D.Fla.1952, 102 F.Supp. 631. A very excellent and helpful discussion of the character of the tariff provision as a bar to actions here involved appears in an article "Airline Tariff Provisions As a Bar to Actions for Personal Injuries" by James C. McKay, published in Vol. 18, The George Washington Law Review 160 (1950). A different decision was reached in State (Brandt) v. Eastern Airlines, 1948, D.C.S.D.N.Y., 120 F.Supp. 745; Wilhelmy (now Stinech) v. N. W. Airlines, D.C.W.D. Wash. 1949, 86 F.Supp. 565 and in Herman v. Capitol Air Lines, D.C.S.D.N.Y.1951, 104 F.Supp. 955. See also Meredith v. United Air Lines, U.S.D.C.Cal.(1950), 1951 U.S.Av.Rep. 103; Indemnity Ins. Co. of North America v. Pan American Airways, D.C.S.D.N.Y.1944, 58 F.Supp. 338; Sheldon v. Pan American Airways, Inc., 272 App.Div. 1000, 74 N.Y.S.2d 267, Id., 1947, 190 Misc. 537, 74 N.Y.S.2d 578.
Air Lines relies heavily upon the case of Lichten v. Eastern Airlines, Inc., 2 Cir., 189 F.2d. 939, 940, 25 A.L.R.2d 1337, and in its brief quotes from the opinion at length. The facts are different. The sixth headnote states: "In absence of a provision in Civil Aeronautics Act prohibiting exemption for any loss or damage to baggage caused by air carrier, such an exemption was not forbidden to air carrier, and Civil Aeronautics Board, being vested with authority to determine reasonableness of tariff, could properly accept such a tariff." Frank, C. J., filed a vigorous dissenting *185 opinion in which he stated that he thought the Board had no authority to accept, and legalize such a tariff.
Air Lines cites in its brief Jones v. Northwest Airlines, Inc., 1945, 22 Wash.2d 863, 157 P.2d 728; Mack v. Eastern Airlines, D.C.1949, 87 F.Supp. 113; and Furrow & Co. v. American Air Lines, D.C. 1951, 102 F.Supp. 808. In these cases the claims arose out of delays in flight or cancelled and rescheduled flightsentirely different facts. The plaintiff in her brief states "in these cases the regulations were correctly held to be binding as a matter of law as the regulations pertained directly to the operation of the airline."
The Bill of Lading Cases cited in appellant's brief are not in point, because 49 U.S.C.A. § 20(11), provides that carriers may insert in their bill of lading limitations as to the time of filing claims and instituting suit.
The Insurance Cases cited in appellant's "brief are not in point. For instance, in the fire insurance cases G.S.N.C. § 58-176 expressly authorizes the insertion of time limitations to file notice of claims and to commence suit.
The next question presented for our decision is, whether the plaintiff is bound by a tariff rule which is not required, or authorized to be filed by the Civil Aeronautics Act.
The evidence is uncontradicted that at the airport, after plaintiff fell and before she was carried away in an ambulance, her ticket was taken up, and Air Lines refunded to her its purchase price. Air Lines then and there had actual knowledge of her injury. The ticket she had bought was not introduced in evidence. Air Lines introduced in evidence Paragraph 8 from the ticket folder reading, "The time limits for giving notice of claims and the institution of suit are set forth in Carrier's tariffs." So far as the Record before us discloses, the Air Lines' tariffs are filed only with the Civil Aeronautics Board. Air Lines alleged in its answer, and the plaintiff admitted in her reply, that neither she, nor the American Mutual Liability Insurance Co., gave Air Lines any notice of claim for personal injuries of plaintiff within 90 days after 29 June 1950, and that neither commenced action within one year after that date.
In Boston & M. R. Co. v. Hooker, 233 U.S. 97, 34 S.Ct. 526, 529, 58 L.Ed. 868 at page 876, the Court says: "It follows, therefore, from the previous decisions in this court, that if it be found that the limitation of liability for baggage is required to be filed in the carrier's tariffs, the plaintiff was bound by such limitation", and the Court made express reference to the notice which follows from the filed and published regulations "as required by the statute and the order of the Interstate Commerce Commission". The Court in Pacific S. S. Co. v. Cackette, 9 Cir., 8 F.2d 259, 261, certiorari denied 269 U.S. 586, 46 S.Ct. 203, 70 L.Ed. 426, says that the clear purport of the Hooker decision "is that a passenger or shipper is not chargeable with notice of any regulation filed and published which is not contemplated or required by the Interstate Commerce Act or the amendments thereto." The second headnote in the Cackette Case reads: "Provision in tariff, published under Shipping Act, § 18 (Comp.St. § 8146ii) [46 U.S. C.A. § 817], requiring passenger's claims for loss or damage during voyage to be filed within 10 days, held not binding on passenger, though ticket was sold `subject to conditions of lawfully published tariff'; the provision having no relation to rates and charges, and not being such as was required to be inserted in published tariff." In its opinion the Court said: "No provision is found in the Interstate Commerce Act which relates to rights of action against carriers for damage or injuries from negligence or assault. Notice of claims for such damages has no perceptible relation to rates and charges for transportation."
The paragraph on the ticket folder does not state what the time limit is for giving notice of claims and the institution of suit, except it refers to what is set forth in its tariffs. Plaintiff's testimony is uncontradicted *186 that she had never read on any ticket sold to her by Air Lines the statement as to the time for giving notice and institution of suit, and did not know that the tickets contained such language.
The first headnote in The Majestic, 166 U.S. 375, 17 S.Ct. 597, 602, 41 L.Ed. 1039 is: "A notice containing conditions, on the back of a steamship passenger's contract ticket, but not referred to therein, except by the words `See back' printed on the face of the ticket, does not form a part of the contract binding on the passenger as to the liability of the steamship company for baggage or otherwise, where the passenger's attention is not called to the conditions, and there is no proof that he ever read or assented to them." In that case Fuller, C. J., speaking for the Court says: "We quite agree with Lord O'Hagan in Henderson v. Stevenson [L.R. 2 H.L. Sc. 470], that `when a company desires to impose special and most stringent terms upon its customers, in exoneration of its own liability, there is nothing unreasonable in requiring that those terms shall be distinctly declared, and deliberately accepted.'"
In Southern Pacific Co. v. U. S., 272 U.S. 445, 47 S.Ct. 123, 124, 71 L.Ed. 343, the Court said: "Nor were the representatives of the War Department chargeable as a matter of law with knowledge, which they did not in fact possess, of a tariff which was not required to be filed. The ordinary consequences that attend the filing of a schedule of rates with the Interstate Commerce Commission as demanded or permitted by statute (quoting authorities), cannot be invoked by the carrier merely because it lodged a special tariff with the commission without statutory authorization."
The 11th headnote in New York, N. H. & H. R. Co. v. Nothnagle, 346 U.S. 128, 73 S.Ct. 986, 97 L.Ed. 1500, decided 8 June 1953, reads: "A railroad may not exonerate itself from the consequences of its own wrongful acts by binding a passenger who has entrusted her baggage to a railroad employee to a liability limitation which the passenger has no reasonable opportunity to discover." This case was heard on Writ of Certiorari to the Supreme Court of Errors of Connecticut, 139 Conn. 278, 93 A.2d 165 to review a judgment holding a carrier liable for loss of a passenger's baggage. The Connecticut Court, where a recovery was had in excess of liability limitation, was affirmed.
We conclude that the plaintiff is not barred by the time limitation to file claim and commence action as contended by Air Lines.
Mr. McKay in his article "Airline Tariff Provisions as a Bar to Actions for Personal Injuries," supra, after reviewing the Civil Aeronautics Act and numerous authorities, states: "Because Congress has not indicated an intention to occupy the field of liability of air carriers for personal injuries, it is concluded that a tariff provision, which attempts to place limitations on notice of claims for personal injuries and the time for bringing actions therefor, must yield to a conflicting state law."
G.S.N.C. § 1-52, subsection 5, provides that actions for personal injuries, not arising from contract and not hereafter enumerated, must be brought within three years. The instances hereafter enumerated in our statutes have no application to the instant case.
The trial court was correct in not nonsuiting the case on the ground that plaintiff's action was barred for failure to file claim and bring action in apt time.
Air Lines' second contention, as to the failure to nonsuit, is taking the evidence in the light most favorable to the plaintiff Air Lines was not guilty of actionable negligence, and if so, the plaintiff was guilty of contributory negligence.
A careful study of the evidence in this case shows that the plaintiff has offered sufficient evidence to require submission of her case to the jury under the law laid down in many decisions of this Court, and other courts, and further that she was not guilty of contributory negligence that bars her recovery as a matter of law. We deem it sufficient to cite cases in *187 point: Mangum v. North Carolina R. R. Co., 145 N.C. 152, 58 S.E. 913, 13 L.R.A., N.S., 589; Leggett v. Atlantic Coast Line R. R., 168 N.C. 366, 84 S.E. 357; Goodman v. Queen City Lines, 208 N.C. 323, 180 S.E. 661; Humphries v. Queen City Coach Co., 228 N.C. 399, 45 S.E.2d 546; Sears, Roebuck & Co. v. Copeland, 4 Cir., 110 F.2d 947; Finn v. Terminal R. R. Ass'n of St. Louis, Mo.App.1936, 97 S.W.2d 890. The plaintiff was at the Airport to board as a passenger an airplane of the Air Lines; it was the duty of Air Lines to furnish her with a reasonably safe passage-way from the waiting room of the Airport to its airplane she had bought a ticket to board; and this is true irrespective of any rights between the City and Air Lines under the lease of the Airport. Horelick v. Pennsylvania R. Co., 1953, 13 N.J. 349, 99 A.2d 652; Schurman v. American Stores Co., 4 Cir., 145 F.2d 721, 157 A.L.R. 617; Payne v. Simmons, 201 Ky. 33, 255 S.W. 863, 33 A.L.R. 814; 10 Am.Jur., Carriers, Sec. 1288; 13 C.J.S., Carriers, §§ 708, 717 b (1). Air Lines is not an insurer of the safety of its passengers; any liability of Air Lines must be based on negligence. Humphries v. Queen City Coach Co., supra.
The assignment of error for failure to nonsuit is overruled.
The appellant has fourteen assignments of error in respect to the trial court's rulings upon the evidence. In reference to these assignments of error in its brief, appellant cites as its sole authorities three general references to paragraphs in American Jurisprudence without quoting a word from that work. Without regard to whether this is a compliance with Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 562, we have considered these assignments of error, and prejudicial error is not shown to exist.
The appellant has eight assignments of error as to the charge. In respect to some of these assignments of error, appellant's brief is a "pass brief," such as is condemned in Jones v. Southern R. R. Co., 164 N.C. 392, 80 S.E. 408. However, after a careful reading of the charge as a whole, we conclude that these assignments of error are without substantial merit.
There was no error in the failure of the court to submit the issues tendered by Air Lines, as the issues submitted were sufficient to support a judgment disposing of the whole case. Griffin v. United Service Life Ins. Co., 225 N.C. 684, 36 S.E.2d 225.
The appellant assigns as error the granting by the trial court of the motion of the City for a nonsuit as to the cross-action of the Air Lines against it.
In the lease between them it is stated that the City, called the lessor, is the owner and operator of the Charlotte Municipal Airport, and Air Lines, called the lessee, desires to hire and obtain certain premises and facilities on said Airport, together with certain rights, licenses and privileges thereon, whereupon the lease was entered into. In Art. IV of this lease the lessor agreed that it will keep in good repair the Airport and Administration Building, and the facilities and services now or hereafter connected therewith. In Art. I, Sec. C. of the lease, Air Lines was granted exclusive space of about 2,736 square feet in the Administration Building. In Art. I, Sec. B., the Air Lines was granted the right to use the Airport for the operation of its transportation system of aircraft for the carriage of persons, property and mail.
Art. XV of the lease is as follows: "Indemnification: The Lessee, under the terms of this agreement, will not be in control or possession of said Airport (except as to the parts thereof leased exclusively to Lessee), and Lessee does not assume responsibility for the conduct or operation of the said airport or for the physical or other conditions of the same. However, it is expressly understood and agreed by and between the parties hereto that the Lessee is and shall be an independent contractor and operator, responsible to all parties for all of its acts or omissions and the Lessor shall in no way be responsible therefor. It is further agreed that in its use and enjoyment of the field, premises and facilities herein referred to, the Lessee will indemnify and save harmless the Lessor from any and all *188 claims or losses that may proximately result to the Lessor from any negligence on the part of the Lessee, its duly authorized agents or representatives, and shall in all ways hold the Lessor harmless from same, provided the Lessor shall give to the Lessee prompt notice of any claim, damage or loss, or action in respect thereto, and an opportunity seasonably to investigate and defend against any claim or action based upon alleged negligent conduct of the Lessee or its duly authorized agents or representatives."
In support of this assignment of error Air Lines makes two contentions: First, the City contracted to indemnify Air Lines; second, regardless of the contract, Air Lines is entitled to indemnity from the City under the equitable doctrine of primary-secondary liability.
The City and Air Lines in the lease between them have set forth in express written terms their agreement as to indemnification between themselves in Art. XV. The first sentence of this article states that Air Lines (except as to the parts thereof leased exclusively to Air Lines) does not assume responsibility for the physical or other conditions of the Airport. This sentence has no application to the duty owed by Air Lines in this case to plaintiff to furnish her, one of its passengers, a reasonably safe passage-way to its airplane she was to board. The second sentence of this article reads: "However, it is expressly understood and agreed by and between the parties hereto that the lessee (i. e. Air Lines) is, and shall be, an independent contractor and operator, responsible to all parties for all of its acts or omissions, and the lessor (i. e. the City) shall in no way be responsible therefor." The third and last sentence of this article states that it is agreed that in its use and enjoyment of the premises the lessee will indemnify and save harmless the lessor from any and all claims or losses that may proximately result to the lessor from any negligence on the part of the lessee, and shall in all ways hold the lessor harmless from same.
No where in the lease is there any language that the City will indemnify Air Lines; the agreement in the lease is that under certain conditions Air Lines will indemnify the City.
From the standpoint of plaintiff the agreement of the City with Air Lines to keep in good repair the Airport and Administration Building and the facilities in connection therewith did not excuse Air Lines' neglect to provide a reasonably safe passage-way for the plaintiff to its airplane. Horelick v. Pennsylvania R. Co., 1953, supra; Schurman v. American Stores Co., supra; Payne v. Simmons, supra; 10 Am.Jur., Carriers, Sec. 1288; 13 C.J.S., Carriers, §§ 708, 717 b (1).
The jury has found Air Lines guilty of actionable negligence. Air Lines did not except to the ruling of the court nonsuiting the plaintiff as to the City. Now Air Lines contends that under its lease with the City, the City has contracted with it to indemnify it for its own negligence. Contracts indemnifying one against his own negligence are strictly construed. Hill v. Carolina Freight Carriers Corp., 235 N.C. 705, 71 S.E.2d 133, where the cases are cited; Southern Ry. Co. v. Coca-Cola Bottling Co., 4 Cir., 145 F.2d 304. In Hill v. Carolina Freight Carriers Corp., supra, [235 N.C. 705, 71 S.E.2d 137] Barnhill, J., (now C. J.) says for the Court an exculpatory clause "will never be so construed as to exempt the indemnitee from liability for his own negligence or the negligence of his employees in the absence of explicit language clearly indicating that such was the intent of the parties."
It seems clear from studying the lease that the City has not contracted to indemnify Air Lines, as contended by appellant. To hold otherwise would be to read into the lease words that are not there.
It is familiar learning that the theory upon which a case is tried in the lower court prevails in considering the appeal and the exceptions. Walker v. Burt, 182 N.C. 325, 109 S.E. 43; Leggett v. *189 Southeastern People's College, 234 N.C. 595, 68 S.E.2d 263; Parrish v. Bryant, 237 N.C. 256, 74 S.E.2d 726.
The appellant tendered no issue as to primary-secondary liability though he tendered two sets of issues. Nor did Air Lines tender an issue as to indemnity. Appellant requested the court to give certain instructions to the jury, but this request made no mention of primary-secondary liability or of indemnity. That would seem to preclude appellant from taking a different position in this Court.
However that may be, in Art. XV of the lease, Air Lines agreed in writing that Air Lines is, and shall be, an independent contractor or operator, responsible to all persons for all of its acts or omissions and the City shall in no way be responsible therefor. The doctrine of primary-secondary liability is based upon a contract implied by law. Hunsucker v. High Point Bending & Chair Co., 237 N.C. 559, 75 S.E. 2d 768. There can be no implied contract where there is an express contract between the parties in reference to the same subject matter. Winstead v. Reid, 44 N.C. 76; Morganton Mfg. & Trading Co. v. Andrews, `65 N.C. 285, 81 S.E. 418; Sams v. Cochran, 188 N.C. 731, 125 S.E. 626; McLean v. Keith, 236 N.C. 59, 72 S.E.2d 44. Under the lease the doctrine of primary-secondary liability does not arise.
The evidence does not support the contention of Air Lines, that if there is any liability on the part of Air Lines, the negligence of Air Lines in relation to that of the City was passive, and that of the City active, for Air Lines was as culpable as the City, and the agreement of the City to make repairs did not exculpate Air Lines' neglect to provide plaintiff a reasonably safe passage-way to board as a passenger its airplane. Therefore, the question of primarysecondary liability does not arise, for that doctrine is based upon a contract implied in law from the fact that a passively negligent tort-feasor has discharged an obligation for which the actively negligent tortfeasor was primarily liable. Taylor v. J. A. Jones Construction Co., 195 N.C. 30, 141 S.E. 492; Hunsucker v. High Point Bending & Chair Co., supra. See also Schurman v. American Stores Co., supra.
Appellant's assignment of error to the court's nonsuiting its cross-action against the City is overruled.
The other assignments of error have been examined, and prejudicial error is not made to appear.
No error.
BOBBITT, J., took no part in the consideration or decision of this case.
