123 N.Y.S. 865 | N.Y. App. Div. | 1910
Lead Opinion
The complaint alleges that the defendant is. a common carrier; that on or about the 2d day of Hovember, 1908, the defendant, for a valuable consideration, agreed to carry the plaintiff. and her baggage, to wit, a large sole-leather bag or suitcase, with the contents thereof, consisting of clothing and personal effects of the plaintiff, from Bedford, in the State of Hew York, on the Harlem branch of said defendant’s railroad, to the city of Hew York, and that the said plaintiff thereupon delivered to said defendant said baggage, and
For a second and partial defense, the defendant alleges that the said suitcase was delivered to and received by the defendant for transportation under a written contract contained in á certain ticket known as a tifty-trip family ticket, which- said ticket was tendered ■ by the plaintiff to and accepted by the defendant for her transportation on the occasion complained of, which said ticket was good for fifty trips if used within one year from the date thereof between Bedford and New York; that said ticket was good for.the passage of the person in whose name it was issued, a member of his■ or her immediate family, a domestic servant employed therein, of a visitor to the family; that in and by the use of -said ticket as a token of her right to said transportation, the plaintiff held herself o.ut to the defendant as within one of the above-named classes and-entitled to transportation as provided in said ticket, and as such obtained and accepted said' transportation upon and subject to the conditions of said ticket, and subject to'the conditions of the tariff "under which said ticket was issued, as herein mentioned; that the said ticket contained the following conditions: “ In consideration of the reduced' fare at which this ticket is sold, the purchaser agrees that its use shall be subject to the following conditions: * * * 3. That this company’s liability for baggage .belonging to each passenger shall not exceed fifty dollars ($50). * * * ” That the plaintiff had-knowledge of and assented to" the conditions and limitations contained in said ticket.; that the said fifty-trip family ticket was issued in conformance with the provisions of the defendant’s tariff-known as 1-0-local and joint .passenger tariff of commutation fares between New York, N. Y., and stations on defendant’s Hudson, Harlem and Pútnam divisions,- effective September 1, 1908, and theretofore filed with, the Public Service Commissions of the first
The complaint alleged that the' loss of the baggage was caused by - the negligence of the defendant; the partial defense contains no denial; therefore it stands admitted. The question is thus squarely presented, can a common carrier by á limitation expressed upon its ticket limit liability for loss due to its own'negligenee ? The.common carrier’s liability is twofold : First, that of an insurer as against all loss except that caused by the. act of God or the public-enemy ; second, that of an ordinary bailee for hire.
In the earlier cases it was held that an exemption from liability must be construed as an. exemption from the broad -and general, common carriers’ liability, and-did not include an exemption from' liability for losses caused by the negligence- of the carrier as bailee. It was subsequently established in this. State that a carrier might exempt himself from liability for negligence other than willful or
Then came the doctrine of the limitation of liability, rather than exemption therefrom. There are many cases in the books upon this topic. In Greenwald v. Weir (130 App. Div. 696) the cases' are collected and the rule stated as follows •: “ Both the Federal courts and the courts of this State have uniformly distinguished between shipping contracts, wherein the carrier has undertaken to exempt himself from liability' at all, and tho.se in which- he has agreed with -the shipper as to the amount which should be taken'as the value of the goods. Contracts of the first, kind have been generally condemned, and contracts of the- second kind sustained. * * * This distinction rests upon a sure and substantial basis. The contract of carriage by' a common carrier imposes upon the latter a double obligation, that of carriage proper and that of insurance. • It is reasonable and customary to fix a rate to be paid with reference to both liabilities, and in order to fix such rate it is necessary that the carrier should be apprised of the value of the article to be carried ; ” and it was there held, as well as in Jonasson v. Weir (130 App. Div. 528), where the negligence of the carrier was conceded, that where the value had been set forth, or where there was a clause that it should be fifty dollars unless a greater value was stated, by the. terms of the contract the defendant’s liability was limited to said amount.
The respondent claims-upon this special fifty-trip family ticket with its special privileges and its reduced rate, and upon its .tariff as posted —both under the provisions of law — that the liability of fifty dollars was a limitation and not an exemption, and if the plaintiff had not chosen to be bound by such limitation she could liavetaken a full ticket upon which the liability would have been limited to $150, and upon declaration of value and extra payment unlimited further accommodation. But the appellant claims that the cases relied upon are cases- where there -has been a mutual valuation, where the passenger- had the opportunity upon declaring a higher value and payment of an extra rate to increase the liability; that there was no such opportunity given here; that the company arbitrarily fixed the amount. It seems to me that the answer is ..plain, there was nothing which forced plaintiff to. travel upon this
In Steers v. Liverpool, N. Y. & P. Steamship Co. (57 N. Y. 1) the court said :• “In the case of Belger v. Dinsmore (51 N. Y. 166) it was decided that in the absence of fraud, concealment or improper practice, the legal presumption is that-' stipulations limiting the common-law liability of common carriers, contained in a receipt given by them for freight, were known and assented to by the party receiving it.. In that case the decision in Blossom v. Dodd (43 N. Y. 264) was examined and shown to be entirely consistent with the conclusion arrived at. I do not perceive any distinction growing out of the fact that in the case before us the subject was the transportation of a passenger and her baggage, which can render the decision inapplicable. * * * Assuming then that we have in the paper in question the contract of the parties, the first inquiry which arises under it relates to the following clause: ‘ Twenty cubic feet of luggage is allowed to each passenger, free of charge, in consideration of which it is agreed that the company are not to be held liable or resp onsible for any loss or damage thereto, in any sum, except where the same shall have been proven to have occurred from gross negligence of said company or their servants.’ * * '* It affirmatively appeared that the plaintiff’s luggage was, on her going aboard the ship, delivered into 'the. custody. of the defendant’s agents, who assumed the charge of it, and that she could have no further care over it. At the end of the voyage the defendant did not produce it, nor in any way account for its non-production, and all inquiry on the part. of the plaintiff was ineffectual. Under these circumstances of actual and exclusive custody on board its own ship at sea, I‘think the proof was sufficient to -make out a case on which a jury might find gross negligence. The clause of the contract before cited was immediately followed by the following provisions: ' Nor in any event shall the passenger demand beyond the sum of fifty dollars, at which said baggage is hereby valued, unless a bill of lading or receipt" be signed therefor, specifying the articles and their respective values.’ ' Under this provision the case of Belger v. Dinsmore (above cited) is . a direct adjudication that the recovery could not, in' the absence of a bill of lading or such
In Tewes v. North German Lloyd S. S. Co. (186 N. Y. 151) . the court said of Westcott v. Fargo (61 id. 542) that it was distinctly • overruled in Magnin v. Dinsmore (62 id. 35) and. had never been followed in any of the.decision's of the court rendered since then. And of the Magnin case, said “ Where it was held that a stipula- ■ tion. limiting the amount for which the carrier-shall be liable was binding upon the- shipper who had notice of the limitation, and whose merchandise had. been lost by the ordinary negligence of. the carrier. * * * In reversing' a judgment for the- full value of the goods lost, this court said : ‘ As has been stated, in.the absence of agreement fior/a limited liability,.it is the duty of the carrier to make all needful inquiry as to. value. But when the shipper agrees with the carrier for a limited liability, he thereby expresses to the latter his estimate of the risk to be run and of the care needed, and ■holds out the .package to him ás an ordinary article which- lie would have no objection to take as of course. The carrier: is. thereby put off his '.guard. The shipper might refuse to -agree to a limited liability and demand generally carriage upon the common-law liability of the carrier; and then they deaf at arm’s .length, and that would arouse the attention of the carrier ; or at least, would put upon him the duty of . inquiry. But accepting carriage upon the terms of a limited liability, the shipper indicates his .judgment of the degree of the risk and of needed' care; and his'silence as to real value is the same as an assertion of méan value, thus keeping the carrier from his "adequate reward, and, what is worse, misleading him as to the degree of care and security which he should provide:’. .* * .* When the Magnin case came to-.this, court a third time(70 N. Y. 410) the rule laid'down on the second.appeal-was distinctly reiterated, and it has been followed by this.court in several subsequent cases.” (Citing Zimmer v. N. Y. C. & H. R. R. R. Co., 137 N. Y. 460 ; Wheeler v. Oceanic Steam Nav. Co., 72 Hun, 5 ;. affd., 149 N. Y. 576.) . “ It has been suggested that there is, or should be, á distinction between a case where the stipulation is designed merely to limit the carrier’s liability, as in' the case of a passenger whose baggage is carried -free of charge, and tlie case of a stipulation framed - for the double, purpose of enabling a. carrier ,of goods for liire to obtain
In the Tewes case tlie court also referred to the number of well-settled cases which hold that there is a-just and logical distinction between an ordinary railroad ticket, which may often be regarded as a mere token, and a passage ticket for an ocean voyage, the sale and purchase of which is usually conducted with such caution and deliberation as to invest the transaction with the elements of a contract, the terms of which the purchaser has ample opportunity to ascertain and understand.
The tickets here under consideration are as special and as different from ordinary railroad tickets as the steamship tickets alluded to. In procuring this book of tickets the purchaser is required to give his name, which is written in the book. They are not transferable, but limited to the transportation of the persons indicated, and forfeited if used by any one else, and are altogether of such- a peculiar and special nature as to bring home their limitations and requirements to the person who takes them out. They are intended for commuters coming in and out from suburban places, and for such travelers the limitation upon the personal- baggage to be carried and the value thereof is reasonable. Whether so or not is not to be determined by. this court in the first instance. The rates have been filed with the Public Service Commission as required by law. (Laws of 1907, chap. 429.) Section 28 thereof requires the filing of schedules showing the rates, fares and charges for transportation of passengers and property within the State between -each point upon ifs route and all other points thereon. “ The schedules printed as aforesaid shall plainly state the places between which property
I think the case at bar comes'directly-within the Tewes Case (supra),, that the limitation of liability.was clearly expressed in the special contract of transportation accepted by the plaintiff, who must be .deemed to have assented thereto. Indeed it is alleged in the partial defense, and so admitted by the demurrer thereto, that the plaintiff had knowledge of and assented to the conditions and limitations contained in said ticket.
It follows that the defense demurred to was' sufficient in law as a partial defense, and that the judgment appealed from should be affirmed, with costs and disbursements to the respondent.
Ingraham, P. J., and Miller, J., concurred •; Laughlin and Scott, JJ,;. dissen ted.
Dissenting Opinion
The material facts are stated in the opinion of Mr. Justice Olarke, in which I am unable to concur. It is well settled that a shipper of passenger • and a common carrier may make a binding contract, with respect to- the value of the ■ property, whether- shipped as freight or baggage, which will limit the. amoúnt of the recovery, and this may bé done either by an express provision fixing tlie actual value, or by a valuation specified by the carrier in the bill of.lading or ticket,.as the valuation agreed upon in the' event that a higher
In the case at bar, however, the agreement printed by the carrier on the ticket is not a valuation agreement, but is a clear attempt on its part to limit its liability, and - in such case the rule is that, although the condition be binding upon the shipper or passenger it will be construed as a limitation on the carrier’s liability as insurer and not upon its liability as a bailee for hire and, therefore, will not be construed as relieving the carrier from liability for its own-negligence, which is alleged here and admitted, unless it is expressly so provided or such intention is so clearly expressed that it cannot be misunderstood by a shipper or passenger of ordinary intelligence. (Condict v. Grand Trunk R. Co., 54 N. Y. 500; Rathbone v. N. Y. C. & H. R. R. R. Co., 140 id. 48 ; Bermel v. N. Y., N. H. & H. R. R. Co., 62 App. Div. 389 ; affd, on opinion of App. Div., 172 N. Y. 639; Mynard v. Syracuse, etc., R. R. Co., 71 id. 180; Nicholas v. N. Y. C. & H. R. R. R. Co., 89 id. 370; Holsapple v. Rome, Watertown, etc., R. R. Co., 86 id. 275; Kenney v. N. Y. C. & H. R. R. R. Co., 125 id. 422. See, also, Holmes v. North German Lloyd S. S. Co., supra.) These uthorities require, I think, that the contract pleaded by the defendant be not construed as relieving it from liability for its own negligence.
I am of opinion, therefore, that the interlocutory judgment should be reversed and the demurrer sustained,' with costs to appellant to abide the event.
Judgment affirmed, with costs, with leave to plaintiff to withdraw demurrer on payment of costs. ’