90 N.Y.S. 1042 | N.Y. App. Div. | 1904
The questions presented we, first, whether the defendant is liable at all, and, secondly, if it is, the extent of such liability.
Resolving the first question favorably to the plaintiff it is unnecessary for us to hold that the defendant was an insurer, because, upon the theory that the defendant was a bailee, it would be liable for negligence, and negligence was established prima facie by the unexplained loss of the traveling case.
Upon the first question there are many cases in this State where a carrier has been held liable for merchandise lost with or without notice of its character; but in such cases it appeared that extra compensation was paid and thus the liability was based upon an independent contract for the transportation of the merchandise as such. (See Stoneman v. Erie R. Co., 52 N. Y. 429; Sloman v. Great Western R. Co., 67 id. 208; Talcott v. Wabash R. R. Co., 159 id. 461; Trimble v. N. Y. C. & H. R. R. R. Co., 162 id. 84.)
These cases are not of much assistance to the plaintiff because the right of recovery in each of them was predicated upon the fact that there was a separate and independent contract based upon an adequate consideration for the transportation of the goods or merchandise. Here there was no independent contract based on extra compensation; but, according to the facts as found by the jury the defendant, with knowledge that the case contained merchandise and not wearing apparel agreed to carry it and deliver it to the passenger at a designated place on its route. We have been referred to no authority in this State directly in point, and the question may, therefore, be considered as a new one and involves the determination of whether a railroad company which undertakes without extra compensation to transport a case containing merchandise or samples, is liable for the failure through negligence to perform its undertaking.
It is conceded that if the traveling case contained what is usually known as baggage, the defendant would be liable for its loss ; and we do not see why the defendant is not equally liable if, in consideration of the fare paid by the passenger, it undertakes to transport him and such property as he delivers to the baggage master for transportation. The consideration for such a contract is the money paid by the passenger. It was the undoubted right of the company to refuse the case when knowledge was brought home to it that it contained other than baggage ; or it could have refused to transport it without extra compensation. Having, however, without extra compensation, undertaken to transport the plaintiff and the traveling case, which it had notice contained not baggage but mer
In the Stoneman Case (supra), in which as we have pointed out there was an independent contract, it was said, in the course of the opinion: “ I think it safe to say that, if the carrier knew or had notice of the character of the goods taken as baggage and still undertook" to transport them, he is liable for their loss, although they are not traveler’s baggage.” It is suggested by the defendant that the baggage master had no authority to impose such an obligation on the company. The baggage master, however, represented the railway company, and within the scope of his employment could bind the company. The right to accept from a passenger merchandise and contract to carry it was within the apparent scope and we think that it was within the real scope of the authority conferred on the baggage master. A passenger comes in contact with no officer of the company, and with respect to personal baggage or articles other than baggage which he desires to carry with him in a valise, case or trunk, those with whom he must deal are the baggage master and his assistants.
Upon the extent of the liability, the appellant calls our attention to the statute of New Jersey which was conspicuously posted in the baggage room and the notice upon the ticket purchased by the passenger, and upon these bases the contention that the liability of the company, if any, was limited to one dollar per pound to the extent of 150 pounds.
Under the New Jersey statute, the right is conferred upon the company by giving notice to any person or persons offering goods, merchandise or baggage for transportation on the railroad, to limit its liability. The notice was given in this case under the statute so far as it relates to baggage (wearing apparel only), but with respect to merchandise there was no limitation in terms upon the ticket. The notice which was posted conspicuously in the office specified the limitation as to both baggage and merchandise, but it will be seen from the reading of the New Jersey statute that not only was this necessary, but in addition there was the requirement that where goods, merchandise or baggage are received for transportation, there should also be a notice " inserted in the bills of lading or receipts
It is not claimed that there was any receipt or bill of lading given to the plaintiff when the traveling case with the merchandise was delivered for transportation and, as we have pointed out, there was nothing in the ticket which called the attention of the plaintiff to any limitation of liability for merchandise. Were it not for the limitation which the statute allows in the case of both baggage and merchandise, the carrier would be liable for the full value of the property lost; and the only way that the company could get rid of liability for the full value of the property delivered would be by taking advantage of the statute and giving the notice as thereby required, which, as we have seen in the case of this particular merchandise, was not done.
There are decisions which sustain the view that, if the property delivered is of such a peculiar and exceptional value that the duty is imposed upon the passenger of calling the attention of the representative of the company thereto, and he fails to do so, the company would not be liable for the full value. Where, however, as here, there was nothing extraordinary or exceptional about the character or value of the merchandise delivered, we do not think that the cases referred to are applicable. Upon this branch of the subject, therefore, if liable at all, as we think the defendant is, the learned trial judge properly held that it was liable for the full value of the merchandise which it undertook to transport.
The defendant calls attention to the fact that the value of the articles which were the exclusive personal property of the plaintiff did not exceed the sum of ninety-seven dollars and fifty cents, and that the balance for which the jury found a verdict consisted of the value of samples and goods which had been delivered to the plaintiff on memorandum. It is apparent, however, from the plaintiff’s testimony that these were sold to him on memorandum of sale, and unless returned by him he would have to pay for them. In effect, therefore, there was a sale to him, and though referred to as a sale on memorandum, the only limitation upon the plaintiff’s unqualified title such as would vest by an absolute sale, was that he could have returned the property and thus have avoided payment, or, if he did not pay therefor at the time fixed, the sellers might
We think, therefore, that the judgment and order appealed from should be affirmed, with costs.
Van Brunt, P. J., Hatch and Laughlin, JJ., concurred Patterson, J., dissented.
Judgment and order affirmed, with costs.
