186 N.Y. 151 | NY | 1906
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *153
For the purposes of this appeal we must assume that plaintiff's trunk was properly delivered to the defendant. The verdict of the jury settled that question in plaintiff's favor, and the unanimous affirmance of the Appellate Division precludes us from examining the record to ascertain whether the verdict is supported by evidence. There are exceptions to the charge, however, the principal one of which relates to the provision in the passage ticket purchased by the plaintiff, purporting to limit defendant's liability for loss of baggage. After the learned trial court had charged the jury very briefly as to the delivery of the trunk, and as to the obligations which the defendant assumed if the fact of proper delivery were deemed to be established, the defendant's counsel requested the court to charge "that in no event can the defendant be liable for an amount exceeding $50." In response to this request the court charged: "If this clause in this passage contract that the liability must be limited to $50 to each person * * * if that clause was not called to the attention of the plaintiffs, and they knew nothing *155
about it, and by the exercise of reasonable attention would not have known it, in that case it will go for nothing, and the amount will be fixed at the full value which you find these things were worth." This charge was clearly in conflict with a number of well-settled cases which hold that there is a just and logical distinction between an ordinary railroad ticket, which may often be regarded as a mere token, and a passage ticket for an ocean voyage, the sale and purchase of which is usually conducted with such caution and deliberation as to invest the transaction with the elements of a contract, the terms of which the purchaser has ample opportunity to ascertain and understand. (Steers v. Liverpool, N.Y. P.S.S. Co.,
The error in the charge referred to was later discovered by the learned trial judge upon the hearing and consideration of a motion for a new trial, when he handed down an opinion which recognized the controlling force of the cases above cited, but denied the motion on the ground that the passage ticket or contract contained no provision absolving the defendant from liability for its own negligence, and that the finding of the jury necessarily established the defendant's negligence in failing to put the trunk aboard the steamer on which the plaintiff sailed pursuant to his contract. To support this conclusion a number of cases were cited which, we think, have no application to the case at bar, since they all relate to the common-law liability of common carriers, unaffected by special contract stipulations designed to limit the carrier's liability.
There is, however, a case (Westcott v. Fargo,
The decision in Magnin v. Dinsmore (supra) was handed down in March, 1874. The case of Westcott v. Fargo (supra) was decided by the Commission of Appeals in January, 1875. In the following May the Magnin case came to this court on a second appeal, where it was held that a stipulation limiting *157 the amount for which the carrier shall be liable was binding upon the shipper who had notice of the limitation and whose merchandise had been lost by the ordinary negligence of the carrier. In that case the merchandise consigned consisted of watches and watch keys. The shipper did not disclose their real value. The receipt given by the carrier provided that "if the value of the property above described is not stated by the shipper, the holder hereof will not demand of the Adams Express Company a sum exceeding fifty dollars for the loss or detention of or damage to the property aforesaid."
In reversing a judgment for the full value of the goods lost, this court said: "As has been stated, in the absence of agreement for a limited liability, it is the duty of the carrier to make all needful inquiry as to value. But when the shipper agrees with the carrier for a limited liability, he thereby expresses to the latter his estimate of the risk to be run and of the care needed and holds out the package to him as an ordinary article which he would have no objection to take as of course. The carrier is thereby put off his guard. The shipper might refuse to agree to a limited liability and demand generally carriage upon the common-law liability of the carrier; and then they deal at arms length and that would arouse the attention of the carrier; or at least would put upon him the duty of inquiry. But accepting carriage upon the terms of a limited liability, the shipper indicates his judgment of the degree of the risk and of needed care; and his silence as to real value is the same as an assertion of mean value, thus keeping the carrier from his adequate reward, and, what is worse, misleading him as to the degree of care and security which he should provide."
The foregoing extract from the opinion in the Magnin case on the second appeal (
The case last cited was followed in Wheeler v. Oceanic SteamNav. Co. (72 Hun, 5; affd.,
It has been suggested that there is, or should be, a distinction between a case where the stipulation is designed merely to limit the carrier's liability, as in the case of a passenger whose *159 baggage is carried free of charge, and the case of a stipulation framed for the double purpose of enabling a carrier of goods for hire to obtain proper compensation, as well as to limit his liability if no declaration of value is made by the shipper. At first glance this suggestion has a plausible appearance, but it does not seem to stand the test of analysis. It is not apparent why a carrier should be subjected to a greater liability in respect of a service which he performs free of charge, or simply as an incident to the carriage of persons, than is imposed upon him in the transportation of merchandise pursuant to a contract in which that is the precise duty which he undertakes for a specified hire. In the carriage of baggage the passenger usually exercises some degree of supervision or direction which may somewhat increase or diminish the carrier's actual responsibility; but in the shipment of goods the carrier takes complete possession and control, so that, if there could be any logical differentiation of the carrier's liability in the two cases, it could very plausibly be argued that it ought to be relaxed rather than augmented in the carriage of a passenger's baggage. But, whatever might be said upon that proposition, it is enough to suggest that it is not an open question in this state, for this court, as we have seen, has held that no such distinction exists.
The judgment herein should be reversed and a new trial granted, with costs to abide the event, unless the plaintiff shall stipulate to reduce his recovery to the sum of fifty dollars, with interest from the date of his loss, and costs, in which event the judgment herein as reduced should be affirmed, without costs of this appeal to either party.
Dissenting Opinion
This action was brought to recover the value of the plaintiff's trunk, and wearing apparel therein contained, which was delivered to the defendant company for transportation from New York to Bremen on the North German Lloyd steamship Grosser Kurfürst, to sail June 28th, 1900, at twelve o'clock noon, but which, by reason of the negligence of one of the defendant's employees, was *160 placed on the wrong pier, and was not, therefore, placed on board of the vessel when she sailed, and was subsequently destroyed by fire. The question arising upon the trial with reference to the delivery of the trunk to the defendant and the negligently placing of it upon the wrong pier, was settled by the verdict of the jury and the unanimous affirmance of the judgment entered thereon by the Appellate Division.
The plaintiff had previously procured a ticket from the defendant's office for his transportation from New York to Bremen on the steamship named, which contained the condition to the effect that the defendant should not be liable "for loss of or injury to or delay in delivery of luggage or personal effects of the passengers beyond the amount of fifty dollars, unless the value of the same in excess of that sum be declared at or before the issue of this contract, or at or before the delivery of said luggage to the ship, and freight at current rates for every kind of property is paid thereon." The court, in its charge to the jury, submitted the question as to whether the plaintiff had his attention called to this condition embraced in the ticket at the time he procured the same, or that he knew of the provision at the time of the delivery of the trunk to the defendant. For the purpose of this case I shall assume, but without determining it, that the plaintiff was chargeable with constructive notice of this provision contained in the ticket, and that the court improperly submitted that question to the jury. But it could not possibly have harmed the defendant, if, under the plaintiff's contention, the proper construction of the contract is that it did not relate to the loss or injury of baggage occurring through the negligence of the defendant or of its employees. There was no declaration made on behalf of the plaintiff of the value of the trunk and contents before its delivery to the ship. The defendant asked the court to charge that there can be no recovery for more than fifty dollars. This was refused, and the question is, therefore, presented as to the meaning of this provision. It will be observed that the limitation of the liability of fifty dollars is for the loss or injury to or delay in delivery of luggage *161
or personal effects of the passengers. Nothing is said with reference to negligence of the defendant or of its servants. The limitation of fifty dollars is to the cases of loss, injury or delay therein referred to. At common law the vessel owners were held to strict liability for the care of property delivered to them. They were practically insurers and liable for the property without regard to the question of negligence. It was doubtless for the purpose of relieving the defendant from its strict liability under the common law that the clause in question was inserted in the contract, and not for the purpose of relieving the defendant from its negligence. If common carriers of persons and property are to be relieved from liability for their acts of negligence, then they are no longer under legal obligation to exercise any care or caution with reference to property delivered into their custody for transportation. They may leave it in dangerous or unguarded places, subject to the action of thieves or to injury by reason of storms. They may dump it wherever the whim of a careless or reckless employee may suggest or find most convenient for his purpose. They may put a traveler's trunk on board or leave it, as the inclination of the servant may dictate, and they would be under no obligation to keep a record of it or to aid owners in tracing it in case of loss, for they would owe him no legal duty with reference to its care, protection or even delivery. This is what is meant by the relieving of common carriers from liability for negligence with reference to property delivered to them for transportation. A contract, therefore, which is claimed to relieve a common carrier from negligence should be carefully scrutinized. As was said by MAYNARD, J., in the case of Rathbone v. N.Y.C. H.R.R.R. Co. (
I consequently conclude that the losses referred to in the contract had reference to the common-law liability of the common carrier, but not including losses which occurred by reason of the carrier's negligence. It is claimed, however, that a shipper may agree upon the value of the property shipped, and that such an agreement is binding upon him. Very true, if he so expressly agrees. (Zimmer v. N.Y.C. H.R.R.R. Co.,
But in this case it appears from the evidence that he did not know of the condition limiting the defendant's liability as expressed in the ticket delivered to him, and that he did not have his attention called thereto at the time he purchased the ticket. He at most, therefore, is chargeable only with constructive notice of such a limitation. The trunk lost contained nothing but ordinary wearing apparel, such as was customary for travelers to take on journeys of this character. The value, while exceeding the limitation expressed, did not exceed that ordinarily contained in the luggage of passengers. There was, therefore, no deception as to its character or contents, and it, therefore, is distinguishable from the case ofMagnin v. Dinsmore (
The judgment should be affirmed, with costs.
GRAY, EDWARD T. BARTLETT and HISCOCK, JJ., concur with WERNER, J.; CULLEN, Ch. J., concurs with HAIGHT, J.; O'BRIEN, J., absent.
Judgment reversed, etc. *164
