Falkenan v. Fargo

By the court, Freedman, J. The plaintiffs in this action are not in a position to claim the benefit of the doctrine that a common carrier cannot secure a limitation or restriction of his common law liability by a mere notice indorsed upon or incorporated in his receipt, and that such notice is, at most, only a proposal for a special contract, which requires the assent of the shipper to its terms. According to the evidence, the plaintiffs had in their possession a blank receipt for the transportation of merchandise, which contained the name of the American Merchants’ Union Express Company as forwarders, the name of plaintiffs’ firm in large Roman capitals, as ship ' ers, and a series of conditions and clauses regulating the manner óf transportation, and the liability of the express company in certain cases and contingencies. This blank receipt was filled up by the plaintiffs at their own office, and the receipt, as thus prepared, was thereafter, namely, at the time of the delivery of the merchandise for transportation, presented by plaintiffs to the express company for signature. It, therefore, constituted a proposal, on the part of the plaintiffs for a special contract, which was wholly of their own creation, and in' the making of which they had not been influenced by any act on the part of the company. Now, as every person is presumed to intend that which is the ordinary and natural consequences of his own purposed act, it follows that when the express company assented to such proposal by signing the same and re-delivering it to the plaintiffs, the proposal ripened into a special contract, and as such it became binding upon both parties. In regard to the provisions of that contract plaintifis cannot be permitted to plead ignorance. Upon this point the case at bar is. analogous to Breese agt. U. S. Telegraph Company (45 [330] Barb., 274, affirmed in 48 N. Y., 132); and Westcott agt. Fargo, decided by the general term of the supreme court of the fourth department at the June term of 1872. The liability of the company is to be measured, therefore, by the 'terms of the special contract, and by that it is provided that the company is not to be held liable for any loss o'r damage by fire. Now, although that provision does not include loss or damage by fire, occasioned by the carelessness or negligence of the company, or its agents, or servants, in respect to-which the common law liability of the company remained unaltered (Simmons agt. Law, 3 Keyes, 217 ; Maguin agt. Dinsmore, President, &c., decided by the general term of the court on the 1st of January, 1873), yet, plaintiffs having admitted on the trial not only that •the merchandise was burned while in transitu, but also that this occurred without fault or negligence on the part of the company, nothing remained, upon which, under the terms of the contract, a liability on the part' of the defendants for the loss, which had thus occurred, could be predicated (Lamb et. al. agt. Camden S Amboy R. R. & T. C., 46 N. Y., 271). The clause that the company shall not be liable for any' loss or damage of any box, package, or thing, for over fifty dollars, unless the just and true value thereof is stated in the receipt, cannot, by any just construction of the whole instrument, be made to work by the mere neglect of the shipper to declare the value a limited liability On the part of the company when no liability outside of it exists. Until a liability is actually incurred the limitation clause remains a mere dormant stipulation. When, therefore, it appeared from the uncontroverted and admitted facts of the case that the company was, in respect to the transportation of the merchandise in question, only an ordinary bailee.or private carrier for hire according to the terms of the special contract, that by the latter the company was wholly exempted from liability for loss or damage [331] by fire ; that the merchandise was destroyed by fire, while in transitu; and tha| such fire occurred without fault or neglect on the part of the company, or any of it's agents or servants, the verdict, instead of being directed in favor of the plaintiffs, should have been directed for the defendants. Defendants’ exceptions must be sustained, the verdict set aside, and a new trial ordered, with costs to appellant, to abide" the event. Bakboue, Ch. J., and Sedgwick, J., concurred.