115 N.Y.S. 311 | N.Y. App. Div. | 1909
This is an action against an express company to recover the alleged actual value of merchandise shipped by plaintiffs upon a receipt in which was stated an agreed valuation ,of fifty dollars.
The plaintiffs, at their place of business in the city of Hew York, delivered to defendant a package of dry goods to be carried to Waukegan, 111. The plaintiffs had in their possession, and had been in the habit of using for some months, a book issued by defendant containing printed forms of express receipts. They had been in the habit of using similar forms for six years. The receipt was filled out by plaintiffs’ shipping clerk and delivered to defendant’s driver, who signed it and left it with plaintiffs and took away the package mentioned therein. The plaintiffs made no statement as to the value of the goods when shipping them, and accepted the receipt without, objection. The package of goods was not delivered to the consignees and its loss was not accounted for. The receipt contained the following clause, clearly and plainly printed thereon: “ 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 unless a greater value is declared, the shipper agrees that the value of said property is not more than fifty dollars unless a greater value is stated herein, and that the Company shall not be liable in any event for more than the value so stated, nor for more than fifty dollars if no value is stated herein.” At the trial plaintiffs proved that the value of the goods was $235, and sought to recover judgment for that amount. The Municipal Court awarded judgment for $50, the agreed value as stated in the receipt. The Appellate Term, by a divided court, has reversed the judgment, holding that notwithstanding the stipulation as to the value contained in the receipt, the plaintiffs are entitled to recover the actual value of the goods. (59 Misc. Rep. 431,) The defendant appeals. It is conceded that but for the Federal statute hereinafter quoted, the judgment of the Municipal Court was in accordance with the settled law of this State. We have recently had occasion to again consider that question, and it is unnecessary to dwell upon it here. (See Jonasson v. Weir, 130 App. Div. 528.) The rule is that it is competent for .a carrier and a shipper to agree, as one of the terms of the contract of shipment, upon the value of the
“That any common carrier, railroad or transportation company receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to the lawful' holder thereof for any loss, damage or injury to such property caused by it or by any common carrier, raii- ■ road or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no con■tract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed: Provided, That nothing -in this section shall deprive any holder of such receipt or bill of lading of any remedy or light of action which he has under existing law.
“ That the common carrier, railroad or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad or transportation company on whose line the loss,, damage or injury shall have bee'n sustained, the-amount-of such loss, damage or injury as it may be required to pay to' the owners ' of such property, as may be evidenced by any receipt, judgment or transcript thereof.” (24 U. S. Stat. at Large, 386.,, § 20, as amd. by 34 id. 593-595, § 7.)
It will be seen at a glance that this statute has changed the com
“ If a rate is conditioned upon the shipper’s agreeing that the carrier’s liability shall not exceed a certain specified value —
“ (a) The stipulation is valid when loss occurs through causes beyond the carrier’s control.
“ (b) The stipulation is valid, even when loss is due to the carrier's negligence, if the shipper has himself declared the value, expressly or by implication, the carrier accepting the same in good faith as the real value, a/nd the rate of freight being .fixed in accordance ‘ therewith.”
Upon principle and authority we are of the opinion that the amendment to section 20 of the Interstate Commerce Act upon which the plaintiffs rely has not abrogated and was not intended to abrogate the well-established rule recognized by the courts of this State and by the Federal courts, that under such a state of facts as is presented in this case the carrier’s liability is limited to the declared and agreed value specified in the shipping receipt.
It follows that the determination of the Appellate Term must be reversed, and the judgment of the Municipal Court affirmed, with costs to the appellant in this court and the court below.
Ingraham, McLaughlin, Clarke and Houghton, JJ., concurred.
Determination reversed and judgment of Municipal Court affirmed, with costs to appellant in this court and in the Appellate Term.
Took effect sixty days thereafter (34 U. S. Stat. at Large, 838, Res. 47).— [Rep.