
    Caroline E. Bates, Respondent, v. Levi C. Weir, as President of the Adams Express Company, Appellant.
    Second Department,
    July 23, 1907.
    Carrier — contract limiting liability—consignee bound by contract with consignor.
    When a shipper’s contract with an express company limits the liability to fifty dollars in the absence of a higher valuation, in which case a higher rate of carriage would be charged, the shipper is estopped from asserting that the-value of the property shipped was greater than that stated. . "
    An express company accepting goods from the consignor without knowledge as to the ownership under a contract limiting the liability to fifty dollars unless a higher valuation be. placed upon the goods, in which case a higher rate of carriage would lie charged, is only liable to the consignee, who was the real owner, under the terms of the contract of shipment. The consignee cannot hold the carrier to the duties of a bailee for hire or those of a common carrier without accepting the contract under which the carrier became such.
    The consignee must affirm or repudiate the transaction in foto, and in the latter case cannot assert that the carrier owed any other duty than that of a gratui- . tons bailee-under a duty not to destroy or injure the goods by gross negligence or willful act.
    Rich, J., and Hirschberg, P.-J., dissented, with memorandum.
    Appeal by the defendant, Levi 0. Weir, as president, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 24th day of August, 1906, upon the'report of a referee. ■
    Plaintiff, owning certain valuable lace, delivered the same to a cleaner in the city of New York, who afterward shipped the same by the defendant-express company .addressed to the" plaintiff in a box not indicating the nature of the contents and without stating its value. Twenty-five cents was paid for expressage- and the • defendant’s receipt contained the' following provision: “ In consideration of the rate charged for carrying said property, which is regulated by the value thereof and is based upon- the valuation of not exceeding $50 unless a greater value is declared, the shipper agrees that the value of said property is not more than $50 unless a greater valúe is stated herein, and that the company shall not be liable in any event for more than the value so stated nor for more than $50 if no value is stated .herein.” The goods were lost or destroyed in transit and the plaintiff, as owner, sued the defendant for tlie value.
    
      J. C. McReynolds [Carl A. de Gersdorff with him on the brief], for the appellant.
    
      F. W. M. Cutcheon [Robert Louis Hoguet with him on the brief], for the respondent.
   Miller, J.:

This case is; not controlled.by our decision in Woolsey v. Long Island R. R. Co. (106 App. Div. 228). That case was decided upon the .authority of Springer v. Westcott (166 N. Y. 117, 123) and Strong v. L. I. R. R. Co. (91 App. Div. 442), which held that a traveler who delivers his baggage to an express of transfer company and' receives- a voucher is hot- bound by its terms unless apprised thereof;. because under such circumstances "he is not expected to take -the time to read it. It is not germane to this discussion to inquire whether the- rule of those cases was applicable,to the facts of the Woolsey .q,&sq, or whether the judgment in that case was right for another reason, to wit, that circumstances were disclosed which should have apprised the defendant' that the house servant from whom it obtained the baggage had no authority to bind' -the owner by contract,' because in any view the facts, of -that case are -totally different from.the facts of the case in hand.

Nor can this case be decided on the authority of the. cases wjhich hold -that- it- will not be presumed that general words in a - contract of a-common carrier limiting- its liability' were intended to include the negligence'of the carrier if they may operate without doing so. Had.the real value of the lace been stated, the charge of the defendant would have been six dollars instead of twenty-five cents, the charge based on a. valuation of fifty dollars. . It is. now settled in this State beyond controversy that where a shipper makes such .a contract as the one involved here] he is estopped from asserting that the property .shipped is worth morei -than the sum- stated. (Magnin v. Dinsmore, 70 N. Y. 410; Zimmer v. N. Y. C. & H. R. R. R. Co., 137 id. 460.)

Nor does it seem to "me material whether the Complaint- states a a cause of action on contract or in tórt. The respondent asserts that the action is brought in disaffirmance of the contract, but there is nothing in the complaint to suggest that it is. The complaint alleges the undertaking of the defendant to carry, the loss of the goods due either to the defendant’s negligence or to the violation of its duty in the premises and its failure to deliver after demand made. The case of Green v. Clarke (12 N. Y. 343), which the learned counsel for the respondent says he adopted as a precedent for drawing the complaint in the case at bar, was decided upon tlie theory that, by bringing an action on the case for violation of the duties resulting from the facts, the owner adopted and ratified the contract ; and it was, therefore, held that the judgment in the action brought by the owner was a bar to a subsequent action brought by the person with whom the contract was made. In the case of New Jersey Steam Navigation Co. v. Merchants' Bank (6 How. [U. S.] 344) the action was brought by an owner and consignee for failure to deliver goods shipped by a third party. The libel, which is published in full in the report of the case, pages 350 and 351, cannot be distinguished in any material respect from the complaint in this action. One of the questions raised was that there was no privity between the plaintiff and the carrier, and that the action could not be maintained by the former. After deciding that the action was properly brought by the owner, as the contract of shipment was deemed to have been made with the owner, the court-proceeded to say: “ The next question is as to the duties and liabilities of the respondents, as carriers, upon their contract with Harnden. As the libellants claim through it, they must affirm its provisions, so far as they may be consistent with law.”

I am unable to follow the argument based upon the premise that the obligation of the defendant claimed to have been violated was non-contractual and existed independent of contract. While that expression is found in the books, it does not warrant the conclusion that the obligation of a common carrier can be determined' without any regard to the contract of shipment. The duty is independent of contract in the sense that it exists independently of any express contract. The courts of this State recognize the freedom of the parties to contract, but hold that they contract with reference to the obligations imposed upon the carrier by the common law, and that said obligations are not limited except by express contract clearly and unequivocally showing an intent so to do, but in any' case there is a contract either express or implied. Much interesting discussion can be' found in the early English cases upon the question whether the action was etc delicto or ex contractu,. and in. the early cases in this State, before the abolition of the common-daw forms of pleading, respecting the allegations "appropriate to the different forms of action. If the plaintiff declared. On the custom solely, the action was' regarded as one in tort. If he declared on the undertaking, to carry, the action was on contract, and if he declared on both, the action was said to be ex dejlicto quasi ex contractu. (See Orange Bank v. Brown, 3 Wend. 158; Weed v. Saratoga & Schenectady R. R. Co., 19 id. 534; Catlin v. Adirondack Co., 11 Abb. N. C. [Court of Appeals] 377.) In the last case it was said that'the rules of liability were the same in each case.

The learned counsel for the appellant argues -that there is- an analogy between the duty of a carrier to receive goods offered for shipment and that of an innkeeper-to receive guests; and that inasmuch as an innkeeper because Of that duty is given a lien even on - stolen goods, a common carrier may rely on the possession of the shipper and.make a contract with him which is binding on.the true owner. But the analogy so .far ■ as the right tq claim a lien for.' charges is concerned has not-been followed- in this country,, as the only cases called to our attention directly deciding the question are to the-effect that the carrier cannot assert a lien if the possession of the shipper was tortious.' (Fitch v. Newberry, 1 Doug. [Mich.] 1; Robinson v. Baker, 5 Cush. 137; Whitney v. Beckford, 105 Mass. 267.) It may be granted, as contended bjr the respondent, that the rules that one whose -possession - is tortious cannot confer a right to pos-' session on another and that mere possession does not enable one to make a contraet binding on the owner apply to common carriers, ■and .that the rule that a common carrier may rely' On the possession of an agent as giving .tlie agent authority to make a special contract., •even'though he be a special agent with limited instructions. (see Meyer v. Harnden's Express Co., 24 How. Pr. 290; Smith v. Robinson Bros. Lumber Co., 88 Hun, 148; Nelson v. H. R. R. R. Co., 48 N. Y. 498) does not apply, for the reason that Mrs. O’Dell was not the" plaintiff’s agent, but a mere bailee.

But it seems to me that the discussion thus far is entirely beside the question which must decide this case, and that is, what was the defendant’s duty to the plaintiff % I think it owed her no.duty as a common carrier except subject to the terms of its contract. It contracted to carry and deliver to the plaintiff an article worth $50, and became an insurer against everything except the acts of God and the public enemy, but it never assumed that obligation respecting an article valued at $6,000. It is said to. be immaterial whether the defendant’s obligation was that of an insurer or simply a bailee for hire, as a cause of action upon either was established but this entirely overlooks the fact that the defendant only became a bailee for hire by virtue of the contract which the plaintiff must accept in toto if at all. If she repudiates the' contract the defendant was not even a bailee for hire as to her, because, according to the cases cited supra, which are relied upon- by the respondent, the defendant could not have asserted a lien for carriage, but the plaintiff, disaffirming the contract and asserting that the shipment 'was wrongful, could have retaken the goods wherever she might find them, without the payment of any charges whatever. She sues for failure to deliver to her as consignee, but -if she repudiates the shipment, her rights.-are the same as though some other person had been consignee. ' It is held that á carrier, acting as a mere conduit, who receives goods from one whose possession is tortióus, and without knowledge of the rights of the true owner, delivers them according to directions, is not liable for conversion. (Gurley v. Armstead, 148 Mass. 267; Nanson v. Jacob, 93 Mo. 331.) And I suppose the same rule would apply to any person acting as a mere conduit without the assertion of any other dominion. But suppose in such case the goods are stolen from the carrier while in transit. It seems to me obvious that unless the owner could adopt the contract of sliipihent (and I am not clear that he could in such case) the carrier would owe him no duty other than that of a finder of stolen property, viz., the duty not to injure or destroy the property by some willful act or by gross negligence.. And I dó not see how the plaintiff can assert that the defendant assumed the duties to her of a bailee for hire or of a common carrier without accepting' the contract under which it became such: This is not a ease in which the owner directs a shipment and the carrier makes 6 special contract with one. who, as it knows .or ought to know, is without authority to bind the owner by special contract. In such 'case the'contract is the one which the:law implies, and such was. the. reason for the decision in Russell v. Erie R. R. Co. (70 N. J. L. 808), and in the cases of Merriman v. The May Queen (17 Fed. Cas. 136); Jennings v. Grand, Trunk R. Co. (127 N. Y. 438), and other cases cited by the respondent. Had the plaintiff specially instructed.Mrs. O’Dell to express the lace without making a special contract, she would have been bound by the contract made, although unauthorized, and it does not seem-to me that she can rely upon' obligations, growing out of the fact .of shipment, without ratifying the shipment. If she repudiates'a part of the transaction she must repudiate it all, in which case She cannot assert that the defendant ever, became as to her a common carrier- or a bailee for hire, or. that it o wed her any duty greater than that of a gratuitous bailee, which, as; I have said, ivas the. duty not to destroy nor .injure, by gross negligence Or some willful act. (Mulgrave v. Ogden, 1 Cro. Eliz. 219; Tancil v. Seaton, 28 Gratt. [Va.] 601; Smith v. Nashua & Lowell R. Co., 27 N. H. 86; Beardslee v. Richardson, 11 Wend. 25.)

The foregoing reasons for reversing this judgment (it cannot be pretended that, it is based on. anything -but a breach of the defend--. ant’s duty as a common carrier) seem to me unanswerable, but they are reinforced'when-considered in the light of the nature of the defendant’s business-and the dutiesandobligationsimposedon.it. It is bound to accept all goods tendered, and to carry them for a reasonable charge. Of course this does not • mean that it must accept stolen property, but-in practical effect the carrier must rely on the.possession of the person.tendering the property as giving him authority to contract, unless there are circumstances which should apprise it of the contrary. - .Before undertaking to become an insurer, it is but reasonable that the defendant should knowdlie' nature and value of the property, -not only for the purpose of determining the extent of the-liability incurred,' but as well the d.egree of care to be exercised and the .charge which would be 'reasonably commensurate therewith. .The contract made -in this case, was .a reasonable contract,- as the courts of this State have said, and if the' carrier -acts in good faith and without notice of facts which should apprise it of the shipper’s want of authority, it should have the right to insist that it never voluntarily assumed any obligations except in accordance with the terms of the contract of shipment, so far as those terms are hot inconsistent with the law. The negligence in this case was that of the sender, who delivered to the defendant property worth $6,000 without apprising it of its value, and, whether the plaintiff has a cause of action against the sender or not, she should not be permitted to claim damages for a violation of duty growing out of the contract of shipment without adopting that contract. It seems to me that this case.is controlled by the principle recently- applied by this court in this department to an action brought by the addressee of a telegram against a telegraph company (Halsted v. Postal Telegraph Cable Co., 120 App. Div. 433), and that we must hold, upon the authority of that case, that the duty of the defendant in the case at bar to the plaintiff was measured by the contract of shipment. I .vote to reverse the judgment.

Woodward and Jenks, JJ., concurred; Rich, J., read for •affirmance, with whom Hiesohberg, P. J., concurred.

Rich, J.

(dissenting):

I am of the opinion that the wording of the limitation clause in the receipt given Mrs. O’Dell, upon which exemption from liability is predicated, is such as to bring this case within the operation of the rule declared by the Court of Appeals in Mynard v. Syracuse, etc., R. R. Co. (71 N. Y. 180), cited with approval in Rathbone v. N. Y. C. & H. R. R. R. Co. (140 id. 51); Gillet v. Bank of America (160 id. 555); Marshall v. Com. Trav. Mut. Acc. Assn. (170 id. 438), and by this court in Galloway v. Erie Railroad Co. (107 App. Div. 210), that the exemption from liability (under a clause contained in a contract, of shipment, in consideration of transportation at a reduced rate) of the carrier for damages or injury to, or the loss of, the property shipped from whatsoever cause arising ” did not include a loss caused by the carrier’s negligence; that when general words in the contract of. a common carrier limiting liability may operate without including the negligence of the carrier or his servants, it will not be presumed that they were intended to include it; that every presumption is against such an intention, and that the contract will not be construed as exempting from liability for’ negligence resulting in the loss,, unless the intention is expressed in unequivocal terms. If the words “from whatsoever cause arisingáre- too general to include the negligence of the carrier, I fail to see how the -word's “in any. .event ” can accomplish that result, and relieve the defendant from • the result- of its negligence.' These conclusions require the affirmance of the judgment, with costs.

Hirschberg, P. J., concurred.

Judgment reversed and new trial - granted, costs to abide the event, ': . '■  