
    Jane A. Stokes, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
    (Supreme Court, Appellate Term,
    December, 1911.)
    Carriers — Carriage of goods — Liability for loss of or injury to goods — Concealment by shipper of character or value of goods.
    Notice—Actual notice.
    Where by the tariff of rates filed by a carrier with the Interstate Commerce Commission the rate for paintings was three times that for household goods, it is not, in the absence of gross negligence, liable for injury for a valuable oil painting shipped without- its knowledge as “ household goods,” as the shipper was chargeable -with a knowledge of the schedule of rates as filed.
    Appeal by the defendant from a judgment of the Municipal Court o-f the city -of Hew York, borough of Manhattan, fifth district, rendered in favor of the plaintiff.
    Douglas- 'Swift, for appellant.
    George W. Carr, for respondent.
   Lehman, J.

The plaintiff, desiring to move the contents of her home fpom the country to the city, asked the defendant company for rates of transportation. The defendant wrote that the rate was “ Household Goods, released, car load minimum weight 12,000 pds. 18 -cts. per cwt.; not released, 22 cts. per cwt., to New York, Pier 68, Horth River.-” The plaintiff, after being informed that the defendant remained liable for damages for good® shipped under the “ not released ” rate, shipped her goods under that rate. The car was loaded by her agents, and the defendant’s agents had -no knowledge of what goods were placed therein. The plaintiff’s servant received a hill -of lading for Household Goods,” and the plaintiff paid the carrying charges at the rate of twenty-two cents a hundredweight. Among the goods loaded' upon the car was an oil painting worth $1,0-00 which was injured while in the defendant’s possession, and the plaintiff has recovered judgment for the damages suffered by this injury.

The sole question raised on this appeal is whether the defendant is liable for suehúnjury. In my opinion the judgment is clearly erroneous, if the words “ household goods ” do not include a valuable painting. The plaintiff failed to show any gross negligence on the part of the defendant, either in transporting or unloading the car, while the defendant affirmatively showed that the picture was .already injured when the oar was unsealed. The only basis of recovery for that injury must, therefore, .arise from the relation of shipper and carrier. The plaintiff claims that she is not bound by the provisions of the bill of lading, because she had not given her servant authority to make a contract for her. I am somewhat inclined to the view that plaintiff is bound by the provisions of this contract, bedause the servant had sufficient apparent authority to bind her; but I do not think that this point is material because, if the bill of lading is not the contract, then the contract was made by the acceptance of the rate quoted in the defendant’s letter, and that rate was for the'transportation of “ household goods ” at car load rates of twenty-two cents a hundredweight. If the plaintiff, without the knowledge of the defendant, placed in the car other goods not fairly included in that term and which she knew that defendant would not transport at car load rates, then the defendant is not responsible as a bailee, but is responsible, if at .all, only for the gross negligence of its servants. The carrier agreed to transport household goods, and the plaintiff impliedly represented that the goods loaded in the car were household goods. If this implied representation was false, then-the defendant -is not liable as a carrier for injury to these goods.

To prove that the term “household goods.” does not include valuable oil paintings, the defendant showed that it had filed a tariff of its rates with the Interstate Commerce Commission and that this schedule contains a note to the classification of household goods' which reads as follows: “Paintings, Silverware, Bric-a-brac, etc., of value will not be accepted by carriers for transportation at the classification for Biousehold Goods and Emigrant’s Moveables; such articles being properly subject to the classification specifically, provided therefor.” The classification for paintings entitled the defendant to charge the rate of sixty-six cents a hundredweight, instead of twenty-two cents. In the case of Texas & Pacific R. Co. v. Mugg, 202 U. S. 242, the. court held that a shipper “ who has obtained frpm a common carrier transportation of goods from one state to another at a rate, specified in the bill of lading, less than the published schedule rates filed with and approved by the Interstate Commerce Commission, and in force at the time, whether or not he knew that the rate obtained was less than the schedule rate, is not entitled to recover the goods, or damages for their detention, upon the tender of payment of the.amount of charges named in the bill of lading, or. of any srim less than the schedule charges.” That case holds, of course, only that .a special rate for transportation lower than the filed tariff is void and that, in spite of such a contract, the railroad may charge the rate provided in the filed tariff. The court, however, will not presume that the parties have intended to enter into an illegal or a void contract. In this case the contract must be held' to be void if the words household goods ” include valuable paintings; it is, however, legal if the words “ household goods ” are given the restricted meaning'provided for in the filed tariff. It seems to me, therefore, clear that we must interpret the con- • tract in the light of the filed tariff and hold that the words “ household goods ” exclude valuable paintings. The Court of Appeals, in the case of Gardiner v. N. Y. C. & H. R. R. R. Co., 201 N. Y. 387, 392, held that the .plaintiff was charged with- knowledge of the schedule heretofore quoted filed by respondent with the public service commission.” If g passenger is chargeable with knowledge of schedules filed with the Public .'Service Commission, I see no reason why a shipper is not chargeable with knowledge of schedules filed with the Interstate Commerce Commission.

It follows that the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event, unless ‘the plaintiff stipulates to reduce the judgment to $32, the amount of -damages proven for injury to household goods, with costs; and, if so reduced, the judgment should be affirmed, without costs to either party.

Giegerich and Pendleton, JJ., concur.

Judgment affirmed, without costs.  