149 N.Y.S. 629 | N.Y. App. Div. | 1914
The action is for the value of goods lost in transit. Steinbach Brothers are fur manufacturers. On September 17, 1912, at the city of New York they delivered to defendant for transportation to plaintiff at Cincinnati a case containing furs of the value of $693.75.
There was evidence, which in the nature of things could not be contradicted and which the trial judge believed, that when the case left Steinbach Brothers’ possession it was marked with the name and address of the consignee and with the word “ furs ” conspicuously displayed. The case was delivered by Steinbach Brothers to a local expressman, whose driver actually delivered the case to defendant and who made out the bill of lading, which defendant signed, and upon which the action depends. This bill of lading describes the goods as “One case D. G.,” which it is conceded means “dry goods.” Defendant’s clerk,
The complaint alleges that defendant’s contract of carriage was: “In consideration of a reasonable compensation then agreed to be paid to it by the plaintiff, and which compensation was the usual freight rate for dry goods between New York City and Cincinnati, the defendant agreed ” safely to carry and deliver the goods. It is conceded that at the time of the shipment the official freight classification filed with the Interstate Commerce Commission provided for a single first class rate for dry goods and a double first class rate for furs, to wit, sixty-five cents, and one dollar and thirty cents per 100 pounds respectively. As a result of the misdescription in the bill of lading of the contents of the case, the plaintiff was charged and agreed to pay the smaller rate applicable to dry goods, instead of the higher rate applicable to furs. Although it is conceded that the plaintiff is chargeable with the act of the express driver in misdescribing the contents of the case, the court has found, and for the purpose of this appeal we must accept his finding, that such misdescription was the . driver’s mistake and not made with any intention to fraudulently misrepresent the nature of the merchandise shipped. The defendant relies upon a line of cases in the United States Supreme Court and elsewhere, wherein it has been held that a false statement as to value, by which a lower rate is paid or agreed to be paid than would be charged if the true value of the goods was stated, limits the liability of the common carrier to the value stated.
These cases do not, however, go to the extent of relieving the carrier from all liability in case of such a misrepresentation, and of such limitation of liability, Mr. Justice Lurton, speaking for the United States Supreme Court, quoting from Bernard v. Adams Express Co. (205 Mass. 254, 259), says in Adams Express Co. v. Croninger (226 U. S. 511, 512): “ ‘ But such a contract as we are considering in this case is not an exemption from liability for negligence in the management of
I do not think those cases are applicable. There was here no misstatement of value, but merely a non-fraudulent misstatement of the kind of goods shipped.
I find nothing in the statute or decisions, and there is no specific clause in the bill of lading (as there is as to value), exempting the carrier or limiting its liability in case of such a misdescription as the present. The company undoubtedly had the right to collect the excess freight when it discovered the mistake, and the shipper is criminally liable under section 10, paragraph 3, of the Interstate Commerce Act if he “ knowingly and willfully ” misrepresents the contents of the package. (24 U. S. Stat. at Large, 382, § 10, as amd. by 25 id. 851, § 2, and 36 id. 549, § 10.) But I can see no ground on the facts of this case upon which defendant can escape liability altogether.
The judgment appealed from should be affirmed, with costs.
Ingraham, P. J., Clarke, Dowling and Hotchkiss, JJ., concurred.
Judgment affirmed, with costs.