157 N.Y.S. 916 | N.Y. App. Div. | 1916
The action was brought to recover the value of five shipments of goods shipped during the year 1913 by the plaintiff with the defendant express company which had been stolen by the latter’s employees. The express receipt contains the following statements:
“In consideration of the rate charged for carrying said property which is regulated by the value thereof and is based upon a valuation of not exceeding Fifty dollars for any shipment of 100 pounds or less, and not exceeding Fifty cents per pound for any shipment in excess of 100 pounds, unless a greater value, is declared at time of shipment, the shipper agrees that the Company shall not be liable in any event for more than Fifty dollars ($50), on any shipment of 100 pounds or less, and for not exceeding Fifty cents per pound on a shipment weighing more than 100 pounds, and said property is valued at, and the liability of the Company is hereby limited to, the values above stated, unless a greater value is declared at the time of shipment, and charge for value paid or agreed to be paid therefor,” and this limitation was set up by the defendant as a defense to the recovery of more than fifty dollars in the case of each shipment.
The court below held that the plaintiff was bound by this statement and could recover not the actual value of the goods, but merely fifty dollars in each case.
Since the Carmack Amendment to the Hepburn Bill, which amended the Interstate Commerce Act and took effect and was
The opinion then quotes from the case of Hart v. Pennsylvania R. R. Co. (112 U. S. 331): “If the shipper is guilty of fraud or imposition, by misrepresenting the nature or value of the articles, he destroys his claim to indemnity, because he has attempted to deprive the carrier of the right to be compensated in proportion to the value of the articles and the consequent risk assumed, and what he has done has tended to lessen the vigilance the carrier would otherwise have bestowed.”
The plaintiff admits the binding effect of the agreed valuation in cases where the wrong complained of arises in some
A number of New York and other cases are cited by appellant in support of this proposition, but practically all of them involve a conversion in the course of the carrier’s effort to perform the contract of carriage, such as a deviation from the agreed route, an unwarranted delay, a misdelivery, etc., in which case it is quite proper to say that the conversion is by the carrier itself and that for such conversion the carrier should be liable in tort independently of the contract. But the instant case presents a totally different question, since the conversion of the goods was by an employee for his own benefit. His acts in furtherance of this purpose were not company acts, but the acts of a stranger. But for not preventing the theft the company through its agents, including the thief, was negligent. It was a part of the contract of carriage to prevent thefts by any one, including their own employees. The failure to do this constituted a breach of contract for which the company is liable, but to which, however, the limitation of liability contained in that contract applies.
An analogy to this reasoning is furnished in cases holding that the company is liable- for an assault on a passenger by a conductor or employee, because it was that employee’s duty to protect the passenger, and in assaulting him himself he not only committed a tort on his own account, but committed a breach of the contract on the company’s account. (Dwinelle v. N. Y. C. & H. R. R. R.. Co., 120 N. Y. 117; Stewart v. Brooklyn & C. R. R. Co., 90 id. 588; McLeod v. N. Y., Chicago & S. L. R. R. Co., 72 App. Div. 116.)
That the policy of the Supreme Court is to hold the shipper to the declared value of his goods in all cases would seem to be indicated by the holding in the case of Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Dettlebach (239 U. S. 588) where it was held that for goods lost after they had reached
The reasoning upon which the limitation is applied to a recovery for goods lost through the negligence of an employee applies with equal force to a recovery claimed for goods lost by reason of his theft. The greater charge for transportation at the greater value is not only to enable greater care in its transportation, but to enable the company to provide greater safeguard against theft by its employees. This holding is no encouragement to a dishonest shipper, who can always protect himself by an honest declaration of the value of his goods, and thereby the shipper gets the exact protection for which he has paid.
The order should be affirmed, with ten dollars costs and disbursements, with leave to plaintiff to withdraw the demurrer on payment of costs in this, court and in the court below.
Clarke, P. J., McLaughlin, Dowling and Davis, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements, with leave to plaintiff to withdraw demurrer on payment of costs.
Since amd. by 38 U. S. Stat. at Large, 1196, 1197, chap. 176, in effect ninety days after March 4, 1915.— [Rep.