121 N.Y.S. 997 | N.Y. App. Div. | 1910
On the 4th day of September, 1906, the plaintiff delivered a carload of household goods and furniture to the appellant at Brook-line, Mass., to be shipped to ISTew York city. The consignee was notified of the arrival of the goods at their destination on .the eleventh day of the same month, and six days thereafter they were taken from the car and stored hy the defendant Union Transfer and Storage Company until the eleventh day of October, when they were delivered at the plaintiff’s new residence, ¡No. 15 West Eighth street, borough of Manhattan, ISTew York, in a damaged condition. The action was brought against-both companies to recover the damages thus sustained by plaintiff upon the theory that they were both negligent in transporting and handling the property. The damages to the goods were shown to be $893. The jury, under a charge to which exception in this record was not taken, was permitted to apportion the damages between the respective companies,.holding each responsible for the damages caused by it, and they found a verdict in favor of the plaintiff against the appellant for $600, and against the Union Transfer and Storage Company for $293, the remainder óf the damages.
¡No appeal was taken by the storage company, and the question •as to whether the evidence afforded a proper basis for this apportionment of the damages between the two companies is not presented. The learned counsel for the appellant presents two points' only for consideration on the appeal. He contends that the plaintiff should have shown the weight of the damaged goods and should have been limited to a recovery at the rate of five dollars per 100
The appellant pleaded and introduced in evidence the bill of lading which was delivered to the plaintiff’s agents who shipped the goods for her and surrendered to the carrier on the delivery of, the goods to the storage company at New York. The appellant relies upon a condition of the bill of lading limiting its liability. On the face of the bill of lading, in the blank space Under the heading “Description of Articles,” under which was written “HH G-oods,” meaning household goods, was stamped in red ink the following: “ The consignor of this property has the option of shipping same at a higher rate without limitation as to value in case of loss or damage from causes which would make the carrier liable, but agrees to the specified valuation named in ease of loss or damage from causes which would make the carrier liable, because of the lower rate thereby accorded for transportation,” and thereunder, on a dotted blank line with the word “ Shipper ” stamped beneath it, the plaintiff’s agents, who packed and shipped the goods for her, signed their firm name as the shipper., U nderneatli the signature and in the same blank space was stamped in red, but in larger type, the following : “ Yalnation restricted to $5.00 per 100 lbs.” The bill of lading further showed that the freight charges were $34.80 and that the weight of the'goods was 12,000 pounds.
The learned counsel for the appellant contends that this special contract did not constitute a gross valuation of the goods at $600, but that by it the cargo of household goods and furniture was, in effect, divided into 120 parts and a valuation of five dollars placed upon each. Neither the contract itself nor the nature and condition of the goods affords a basis for that contention. There were more than 120 items of property and it is improbable that they could have been separated into 120 parts of equal Weight. There was nothing to identify any particular hundredweight. It would, therefore, be impossible to know in advance, as might be known in the case of the shipment of .animals or sealed packages or goods of a uniform quality or value, what articles of the household goods and furniture were comprised in the separate allotment into parts of the weight of 100 pounds each. The shipper, therefore, on that view
We are of opinion that the stamp as used was a mere substitute for writing in the total valuation as thus computed and that the contract is to be construed ás if the bill of lading had stamped on it instead of the words “Valuation restricted to $5.00 per 100 lbs.” the words “Valuation restricted to $5.00,” which in each instance would have required a computation, and since the total valuations would vary would also doubtless, require that the valuation be written in, thus requiring more work and consuming more time on the part óf the agents of the carrier. Another possible reason for the use of the stamp, estimating the value by the 100 pounds weight,
We are of opinion, therefore, that it was not incumbent on the plaintiff to show the weight of the goods damaged or destroyed, and that she was not limited in her right to recover to five dollars per hundredweight of that part of the goods weighed separately. It is unnecessary, therefore, to decide whether- if the bill of lading required the construction for which the appellant contends it would be valid or whether it would be void as contrary to public policy, and, therefore, we express no opinion on that question.
We are also of opinion that the evidence was sufficient to sustain
It follows, therefore, that the determination of the Appellate Term should be affirmed, with costs.
Ingraham, P. J., Clarice, Scott and Hiller, JJ., concurred.
Determination affirmed, with costs.