Heuman v. M. H. Powers Co.

Scott, J.: The defendant is a general truckman transporting goods for hire under special contracts. He was, therefore, a common carrier. (Jackson Architectural Iron Works v. Hurlbut, 158 N. Y. 38.) He was employed by plaintiff to move her household effects from 435 Convent avenue in the city of New York, borough of Manhattan, to No. 2478 Second avenue, in the same city and borough. Plaintiff’s husband, who concededly acted as her agent in the matter, signed a paper partly printed and [628] partly written containing shipping directions and the stipulated hire. This paper also contained in perfectly plain letters the following statement: “ The responsibility of the Company is limited to Fifty dollars for any article together with the contents thereof.” Among the articles intrusted to the defendant was a safe, within which was a box containing jewelry belonging to plaintiff and her husband, and valued by them at upwards of $1,000. The goods were delivered to defendant late in the afternoon of Saturday, May 24, 1913. There was some conversation between plaintiff’s husband and agent, and a representative of defendant as to whether or not it would be too late to deliver the goods on that evening, and it was agreed that if necessary the van might be placed in defendant’s storehouse until Monday. This was done and on Monday,- May twenty-sixth, the goods were delivered. In the meantime, however, and while the van was in defendant’s possession the safe was broken open by some of its employees and the jewelry stolen. This action is to recover the value of the stolen articles. Plaintiff had a verdict for $1,000, upon which judgment was entered, and affirmed by the Appellate Term. The sole question in the case is as to the efficacy of the clause above quoted limiting defendant’s liability. It is now well settled in this State that it is competent and valid for a common carrier to limit his liability by agreeing with the shipper upon a maximum valuation of the articles to he carried (Boyle v. Bush Terminal R.R. Co., 210 N. Y. 389; Tewes v. North German Lloyd S. S. Co., 186 id. 151; Gardiner v. N. Y. C. & H. R. R. R. Co., 201 id. 387), and a .clause in a contract of carriage limiting the liability of a carrier to a given sum is held to be equivalent to a valuation of the goods. (Magnin v. Dinsmore, 62 N. Y. 35; 70 id. 410.) It is true that in order to exempt the carrier from liability for negligence the provision making such exemption must be clearly and expressly stated. (Magnin v. Dinsmore, 56 N. Y. 168; Mynard v. Syracuse, etc., R. R. Co., 71 id. 180.) In the present case the action is not based on defendant’s negligence, but upon its general common-law liability as a common carrier for loss or damage of goods. The only allega [629] tion of negligence contained in the complaint reads as follows: “Seventh. Upon information and belief that the men employed by the said defendant, or some of them, to pack and move the property, furniture and effects of this plaintiff were dishonest and were not selected by the defendant as employees with a proper regard and care as to their honesty, but were carelessly and casually selected and employed by the defendant without regard to their previous character and reputation, which could have been ascertained upon proper inquiry made by the defendant, which wholly failed to make such inquiry, and that the said employees, or some of them, were men of loose character and dishonest and not proper men to be trusted with the labors that the defendant entrusted the same with.” No attempt was made to establish this allegation by proof. The case on the facts closely resembles D’ Utassy v. Barrett (171 App. Div. 772; affd., 219 N. Y. 420), recently decided by this court wherein there was a similar limitation of the carrier’s liability, and the loss occurred through a theft on the part of the carrier’s employees. The opinion of the court by Mr. Justice Smith quite clearly and very correctly states the reasons why the shipper in such a case may not recover more than the stipulated value of the stolen goods. It is true that in the U TJtassy case and in a, number of others the receipt or shipping contract contained words indicating that the consideration for the valuation at a fixed sum was that a lower rate of freight was thereby secured than would have been charged if the true value of the goods had been stated. But that circumstance does not, in my opinion, affect the question of the validity of a written, deliberate agreement as to the extent of the carrier’s liability, and so far as I am" aware no case has ever held that circumstance to be controlling. On the contrary, it was held to be irrelevant in Rubens v. Ludgate Hill Steamship Co. (20 N. Y. Supp. 481, 487; affd., 143 N. Y. 629), decided by the General Term in this department. In that case the court said: “There still remains a subsidiary question as to the effect of the failure to prove the allegation of the answer, that the consideration for these exemptions and exceptions accorded to the defendant was the low rate of freight the defendant agreed to accept as a condition to its release from [630] any liability for loss resulting from causes exempted. We do not .think that such failure on defendant’s part was material to the disposition of the case for the reason that it is • entirely competent for the parties to enter into a contract; and where it appears that, in consideration of a stipulated sum, the carrier agrees to perform certain services upon condition of certain exemptions, sufficient consideration is to be found in the carrier’s obligation thus assumed to support the exemptions provided for in the contract.” Indeed there is high authority for saying that even if the contract of carriage had contained no specific limitation of defendant’s liability still the plaintiff might be refused relief because of-her act in misleading defendant as to the extent of responsibility it assumed by concealing the fact that the safe contained jewelry of considerable value. (Nathan v. Woolverton, 149 App. Div. 791.) It is not necessary to go so far as that-in the present case, nor are we to be understood as placing our decision upon that ground. It is cited merely to illustrate the point that it is not the rate bf freight aleñe, but alse the degree ef care necessary .to be given to the goods intrusted to the carrier that is taken into consideration in fixing a valuation upon the goods. It is quite probable for instance in the case at bar, that if the carrier had been advised that the safe contained valuable and easily portable jewelry, he would have taken some extraordinary means to guard against its loss. Our conclusion is that the determination of the Appellate Term and the judgment of the Oity Court must be reversed and a new trial granted, with costs to appellant in all courts to abide the event, unless the plaintiff shall stipulate to reduce the recovery to fifty dollars, with interest and costs in the City Court, in which event the judgment as so modified will be. affirmed, without costs to either party in this court or the Appellate Term. Clarke, P. J., and Page, J., concurred; Smith and McLaughlin, JJ., dissented.