Rosenthal v. Weir

66 N.Y.S. 841 | N.Y. App. Div. | 1900

Lead Opinion

O'Brien, J.:

Many questions sought to> be raised as to the liability of a common carrier, and as to the extent to which such liability can be limited by contract, we deem it unnecessary to discuss in view of the principles which we regard as controlling upon the facts here appearing. It is of course necessary in the -first instance to determine whether the rights of .the parties are controlled by the shipping receipt, or by a separate and distinct contract or obligation. If under the former, then seemingly there would not only be need of proof of negligence, but in the event of recovery, it is doubtful if the sum awarded could exceed the fifty dollars fixed as the limit 'of liability. We are inclined, however, to the view that the rights and liabilities do not fall under the shipping contract. What was intended by the provisions of the latter was to govern the liability of the.defendant in all matters incidental to its undertaking as a common carrier in connection with the shipment from New York to Dallas, Texas, but they had no relation to the new and independent duty of returning the goods from some point on the line back to New York.

It is not disputed that while the goods were in transit the plaintiffs’ right of stoppage existed; and, they having notified the defendant that they proposed to exercise such right, there remains to be determined what obligation devolved upon the defendant, and whether or not such obligation was discharged. It being the duty of the defendant to recognize the plaintiffs’ right of stoppage in transitu, the failure to perform that duty made the defendant liable. As said in Schouler on Personal Property (Vol. 2, § 565), “ the effect of such notice, seasonably given and sufficiently plain in expression, is to revest the seller’s possession and lien; and the carrier is bound to obey, leaving the justification of the stoppage with the seller as concerns the sale parties; since the due exercise of this right is at the seller’s and not the carrier’s peril. The carrier is not to disregard the seller’s claim, nor to undertake to solve the dispute between buyer and seller, nor to ask for evidence of the right; but to obey the seller’s order implicitly, and thereupon refuse delivery to the buyer.”

That the plaintiffs gave sufficient 'notice of their intention to exercise their right of stoppage in transitu, and in compliance with such notice defendant undertook to discharge its duty, appears from the evidence. The questions remaining are, whether it properly discharged that duty, and, if it did not, what was the measure of damage to which it subjected itself by its failure.

Upon the first, we think that there was a prima facie case of negligence made out by the plaintiffs upon the showing that they notified the defendant, and that the defendant improperly performed that duty, a fair presumption being that had the defendant sent a telegram to Kansas City where the goods were to be reshipped by the American Express Company, it would have prevented such reshipment, or defendant might have taken other means to stop the goods before they reached Dallas, Texas. Considering what was to be accomplished and the means in the. defendant’s hands for accomplishing it, it was for the defendant to rebut the inference thus created that it had neglected to use reasonable care. • In other words, we think that the plaintiffs made out a prima fa&ie case tending to show that the defendant had neglected to use reasonable care in performing the duty which it had undertaken. That the defendant was bound, after having, assumed the duty, to use such care, we think follows from the obligation imposed; for were it not for the agreement, the plaintiffs might have resorted to other means or employed other agencies to prevent the delivery of the goods to the consignee.

At the close of the testimony, neither side asked to go to the-jury on any question of fact, but both moved for the direction of a verdict, thus submitting to the trial judge the determination of the disputed questions of fact, which determination, with sufficient evidence to support it as herein appears, is conclusive upon us. The defendant did ask the court “ to instruct the jury that in no event can the plaintiffs recover damages in- excess of fifty dollars.” This-was asking the court to hold- as matter of law that the shipping contract was conclusive as to the measure of damages. We have-already intimated that the trial judge was right in refusing to concur in this view and that the rule to apply was that of compensatory damages. Hnder this rule, the measure is what the plaintiffs lost, which was the value of the goods, less the amount returned.

Two pieces of silk were returned valued at thirty-seven dollars- and forty-one cents, which sum should have been deducted from the-total value of- the goods originally shipped. There is no dispute-about the value of the goods returned, and the trial judge, not having his attention called to them, inadvertently included this-value in the amount for which the verdict was directed. That could have been corrected by motion, and at any time can he deducted and no appeal was necessary for that purpose.

Having concluded that the plaintiffs were entitled to recover fertile reasons set forth, it will be seen that the excéptions taken- to the testimony of the plaintiffs’ 'witness as to the receipt handed him, are of no moment. We think, therefore, that the judgment was-right, except in the particular referred to as to the value of the-goods returned, which can be corrected, and should be affirmed,, with costs.

Patterson, Ingraham and Hatch, JJ., concurred.

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Concurrence Opinion

Van Brunt, P. J.:

I concur in the result only. The defendant having undertaken to stop the -goods, was bound to use reasonable care to do so; and under the evidence this was a question for the jury. The, defendant-not having asked to go to the jury, cannot now claim error "because-the case was not sent to the jury.

Judgment affirmed, with costs.