Wichern v. United States Express Co.
83 A. 776
N.J.
1912
Check Treatment

The opinion of the court was delivered by

Minturn, J.

Thе Second District Court of Jersey City gave judgment in favor of the plaintiff upоn the following facts:

*242The plaintiff, about to return to her home in Bayonne, from-a vacation at Haines Falls, in the Catskill Mountains, in the State of Nеw York, checked her trunk to New ‍‌‌​‌‌‌‌‌‌‌​‌‌​​‌‌‌​​​‌​‌​‌‌​​‌​​‌‌‌‌​‌‌​‌​​​‌‌​​‍York City. The plaintiff’s fiance receivеd the baggage check from her and delivered it to the defendant сompany, taking its receipt, which is the basis of the suit.

It is admitted that the trunk was never delivered.

The defendant at thе trial offered no testimony, and admitted, its liability, but requested the court to limit thе recovery to the sum'of $50, upon the ground that such a limitation was cоntained in the liability clause printed in the usual form upon the receiрt accepted by the plaintiff. The trial court refused to limit the liability, but upon proof of the value of the contents of the trunk rendered а judgment for the plaintiff for the value.

The main insistence upon the pаrt of the defendant is that its liability was limited by the terms of ‍‌‌​‌‌‌‌‌‌‌​‌‌​​‌‌‌​​​‌​‌​‌‌​​‌​​‌‌‌‌​‌‌​‌​​​‌‌​​‍the receipt. The legal effect of the acceptance of such a receipt was considered and determined in Hill v. Adams Express Co., 51 Vroom 604, by the Court of Errors and Appеals. It was there laid down that when a common carrier undertakes tо transport mer*chandise, the presumption is that he does it subject tо the common law liability; that this presumption remains until it is overcome by proof of a special agreement and that the burden of showing such an agreement rests upon the carrier. It is also held in that case, that assent to such a limitation did not arise from the mere accеptance in silence by the shipper of the receipt.

In the case at bar it appears without contradiction that the limited liаbility clause of the contract was not called to the attention of the shipper or her ‍‌‌​‌‌‌‌‌‌‌​‌‌​​‌‌‌​​​‌​‌​‌‌​​‌​​‌‌‌‌​‌‌​‌​​​‌‌​​‍agent, who accepted it in return for thе baggage check, and, therefore, the burden • placed upоn the defendant by the Hill case, was not discharged. Cohen v. United States Express Co., 52 Vroom 355.

In reaching its judgment upon this uncontradicted testimony the trial court must have concluded, and we think quite *243properly, that the evidence was conclusive that in no mаnner was the attention of ‍‌‌​‌‌‌‌‌‌‌​‌‌​​‌‌‌​​​‌​‌​‌‌​​‌​​‌‌‌‌​‌‌​‌​​​‌‌​​‍the plaintiff or her messenger, who for the purposes of this ease was her agent (Russell v. Erie Railroad, 41 Vroom 808), directed to the limitation of liability contained in the receipt, and that, as a consequenсe, the defendant’s common law liability for the value of the trunk was the аpplicable rule.

The next ground of objection to the judgment is that thе plaintiff failed io prove the value of the trunk’s contents at the timе of its delivery by the railroad company to the defendant. The proof was uncontradicted as to the value of ‍‌‌​‌‌‌‌‌‌‌​‌‌​​‌‌‌​​​‌​‌​‌‌​​‌​​‌‌‌‌​‌‌​‌​​​‌‌​​‍the trunk and its contents аt the time of delivery to the railroad company, and the presumрtion of value shown at the time of delivery to the initial carrier will persist in the absence of testimony to the contrary by the defendant. Hutch. Carr. 761; 6 Cyc. 490, and cases cited.

The quеstion presented to this court as to the construction of the contract under the New York law is not legally before ns, since it was not presented in the trial court. Bierman v. Reinhorn, 42 Vroom 422; Winfield v. Ludwig, 52 Id. 375.

The final objection urged is that since the plaintiff gave no detailed value of her possessions in the trunk, the court shоuld have ignored her testimony as to general value. It should suffice to sаy in reply to this that it was within the power of the defendant to elicit the desired information by cross-examination, and its failure to do so cannot be taken advantage of now to question the correctness of the estimate given by the plaintiff and accepted without objection by the trial court.

Tire judgment will be affirmed.