Hailparn v. Joy Steamship Co.

50 Misc. 566 | N.Y. App. Term. | 1906

Gildersleeve, J.

The action is to recover for damages to eleven packages of household goods shipped from Boston to Hew York. The complaint was dismissed as to both defendants on different grounds. This appeal is only from the judgment dismissing the complaint as to the defendanl Joy Steamship Company. This defendant is a common carrier and undertook to convey the goods from Boston to New York. The goods were delivered in a greatly damaged condition, hut the court below dismissed the complaint on the ground that a release under seal was executed by plaintiff’s agent against any damages occasioned by defendant’s negligence, in consideration of the reduced rate at which the shipment was made; The plaintiff and a truck-man named Brown took the goods to defendant’s pier in Boston to have them placed on defendant’s boat for transportation to Hew York. The plaintiff was in a great hurry and there were a large number of people ahead of him. He, therefore, told Brown to deliver the goods to defendant, to get a “receipt” for the same and to deliver said receipt to plaintiff’s wife. The said Brown did so deliver the goods and got a bill of lading in return for said goods, in which Brown was named as “ owner or shipper,” and the plaintiff as consignee. At the same time defendant’s agent handed Brown the release in question and told him to sign it. Brown did so. The release, of course, remained in possession of defendant. Plaintiff sought to show that he in no way authorized Brown to sign said release, hut was not allowed to do so. Still the evidence does show that plaintiff merely told Brown to get “ the receipt ” for the goods, upon delivering them to defendant, and to give such “receipt” to plaintiff’s wife. It may he remarked that, aside from the fact that the release recites that it is given in consideration for transporting the goods at “reduced rates,” there is no evidence whatever that the rates were, in point of fact, in any degree reduced. There is no doubt that a common carrier may limit its liability by contract, in consideration of a reduced rate for transportation. Zimmer v. N. Y. C. & H. R. R. Co.,137 N. Y. 460; Kenney v. N. Y. C. & H. R. Co., 125 id. 422. nevertheless, such contract must be accepted by the shipper or his agent. The release was signed “ M. Brown,” and nothing appears in said release to indicate that Brown acted for anybody but himself. He was never authorized by the plaintiff to sign said release, nor is there anything to indicate that plaintiff, in directing Brown to deliver the goods and take a “ receipt ” therefor, had the remotest anticipation that any such release was to be demanded by the defendant. Brown himself does not appear to have read the release, or had his attention called specifically to its provisions. He merely signed it mechanically, at the bidding of defendant’s agent, who says he told him to sign “ this release.” Brown was a mere truckman, as defendant’s agent well knew.

It seems to us that' the judgment and order appealed from should he reversed and a new trial granted, with costs to appellant to abide the event.

Davis and Clinch, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.