
    Rasheed G. Saleeby, Respondent, v. Central Railroad Company of New Jersey, Appellant.
    
      Liability of a railroad for merchandise carried, on a passenger’s ticket — what contract in respect thereto is within the baggage master’s authority— liability of the railroad company for its loss, not as an insurer but for negligence—measure of damages—recovery for goods purchased on memorandum—notice on the ticket and by sign in the station of limit of liability under the New Jersey statute, when insufficient.
    A passenger on the railroad of a New Jersey railroad corporation, after purchasing his passage ticket, checked his baggage, a merchandise case containing laces and silks valued at §656.86, §97.05 worth of which was his absolute property and the balance of which he had purchased on memorandum. At the time he checked the case he informed the baggage master that it contained valuable goods and samples which he intended to offer for sale. The transportation ticket upon which the passenger checked the traveling case stated, “Free transportation allowed for 150 lbs. baggage (wearing apparel) only and Company’s liability expressly limited to §1 per lb.”
    Conspicuously posted in the station where the transaction occurred was a notice that the railroad company limited its liability as carrier of goods, merchandise and baggage to §100 for every 100 pounds weight in accordance with the New Jersey statute providing that any railroad corporation of the State may so limit its responsibility by causing a general notice of such limitation to be conspicuously posted at the receiving office of such company and to be inserted in tickets delivered to passengers.
    
      The case having become lost in some unexplained manner, the passenger brought an action against the railroad company to recover damages.
    
      Meld, that the baggage master acted within the scope of his employment in making the agreement to carry the merchandise contained in the traveling case and that such agreement was binding upon the defendant;
    That having undertaken, without extra compensation, to transport the traveling case with knowledge that it contained merchandise and not baggage, the defendant was liable for the loss thereof;
    That it was not necessary to hold that the defendant was an insurer of the traveling case, because, even if it were a mere bailee thereof, it would be liable for negligence, and negligence was established prima faeie by the unexplained loss of the traveling case;
    That the measure of the defendant’s liability was the full value of the merchandise contained in the case;
    That the notice printed on the ticket was not effective to limit the defendant’s liability as such notice only related to baggage and not to merchandise;
    That the notice posted in the station which specified the limitation as to both baggage and merchandise was not effective to limit the defendant’s liability, for the reason that the New Jersey statute required that where goods, merchandise or baggage are received for transportation, there should also be a notice “inserted in the bills of lading or receipts given for such goods or merchandise, and in the tickets delivered to passengers,” and that no receipt or bill of lading was given to the passenger when the traveling case was delivered to the railroad company;
    That the passenger was entitled to recover the value of the goods contained in the traveling case which he had purchased on memorandum of sale, it appear ing that, by the terms of such memorandum, he was bound to pay for the goods unless he returned them.
    Patterson, J., dissented.
    Appeal by the defendant, the Central Railroad Company of New Jersey, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk'of the county of New York on the 26th day of February, 1904, upon the verdict of a jury rendered by direction of the court for $656.86, and also from an order entered in said clerk’s office on the 3d day of March, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover for damages sustained by the plaintiff through the failure of the defendant to deliver to him a traveling case containing merchandise which he had checked as baggage on August 5, 1902, to West End, N. J., from the defendant’s railroad station at the foot of Whitehall street, New York city.
    
      The plaintiff purchased a ticket and thereafter presented the traveling case to the baggage master and he testifies that he then told the baggage master that it contained valuable goods and samples which he intended to offer for sale on the following day. His testimony was corroborated by two witnesses but the baggage master denied receiving any such information. The case contained laces and silks of the conceded value of $656.86. Of these $97.05 worth were the absolute property of the plaintiff, and the balance he had purchased on memorandum. The ticket bought by plaintiff for his transportation and upon which he checked the case, stated: “ Free transportation allowed for 150 lbs. baggage (wearing apparel) only and Company’s liability expressly limited to $1 per lb.” It was further testified that conspicuously posted in the station was a notice that the defendant limited its liability as carrier of goods, merchandise and baggage to $100 for every 100 pounds weight in accordance with the New Jersey statute providing that any railroad corporation of the State may, by giving notice, so limit its responsibility, a general notice of such limitation to be conspicuously posted at the receiving office of such company and inserted in tickets delivered to passengers.
    The value being admitted, the court submitted to the jury the question whether or not the baggage master received the case with notice of the character and value of its contents, and upon their finding in favor of the plaintiff a judgment was so entered for the total amount claimed and from such judgment the defendant appeals.
    
      Robert Thorne, for the appellant.
    
      J. Allison Kelly, for the respondent.
   O’Brien, J.:

The questions presented we, first, whether the defendant is liable at all, and, secondly, if it is, the extent of such liability.

Resolving the first question favorably to the plaintiff it is unnecessary for us to hold that the defendant was an insurer, because, upon the theory that the defendant was a bailee, it would be liable for negligence, and negligence was established prima facie by the unexplained loss of the traveling case.

As to the extent of the liability, we think that the plaintiff can recover the full value of the merchandise which the defendant had received as such for transportation.

Upon the first question there are many cases in this State where a carrier has been held liable for merchandise lost with or without notice of its character; but in such cases it appeared that extra compensation was paid and thus the liability was based upon an independent contract for the transportation of the merchandise as such. (See Stoneman v. Erie R. Co., 52 N. Y. 429; Sloman v. Great Western R. Co., 67 id. 208; Talcott v. Wabash R. R. Co., 159 id. 461; Trimble v. N. Y. C. & H. R. R. R. Co., 162 id. 84.)

These cases are not of much assistance to the plaintiff because the right of recovery in each of them was predicated upon the fact that there was a separate and independent contract based upon an adequate consideration for the transportation of the goods or merchandise. Here there was no independent contract based on extra compensation; but, according to the facts as found by the jury the defendant, with knowledge that the case contained merchandise and not wearing apparel agreed to carry it and deliver it to the passenger at a designated place on its route. We have been referred to no authority in this State directly in point, and the question may, therefore, be considered as a new one and involves the determination of whether a railroad company which undertakes without extra compensation to transport a case containing merchandise or samples, is liable for the failure through negligence to perform its undertaking.

It is conceded that if the traveling case contained what is usually known as baggage, the defendant would be liable for its loss ; and we do not see why the defendant is not equally liable if, in consideration of the fare paid by the passenger, it undertakes to transport him and such property as he delivers to the baggage master for transportation. The consideration for such a contract is the money paid by the passenger. It was the undoubted right of the company to refuse the case when knowledge was brought home to it that it contained other than baggage ; or it could have refused to transport it without extra compensation. Having, however, without extra compensation, undertaken to transport the plaintiff and the traveling case, which it had notice contained not baggage but mer•chandise, we think that the company is liable for its loss. In other words, the carrier is liable for the goods, although not baggage, if, knowing their character, it accepts them as baggage.

In the Stoneman Case (supra), in which as we have pointed out there was an independent contract, it was said, in the course of the opinion: “ I think it safe to say that, if the carrier knew or had notice of the character of the goods taken as baggage and still undertook" to transport them, he is liable for their loss, although they are not traveler’s baggage.” It is suggested by the defendant that the baggage master had no authority to impose such an obligation on the company. The baggage master, however, represented the railway company, and within the scope of his employment could bind the company. The right to accept from a passenger merchandise and contract to carry it was within the apparent scope and we think that it was within the real scope of the authority conferred on the baggage master. A passenger comes in contact with no officer of the company, and with respect to personal baggage or articles other than baggage which he desires to carry with him in a valise, case or trunk, those with whom he must deal are the baggage master and his assistants.

Upon the extent of the liability, the appellant calls our attention to the statute of New Jersey which was conspicuously posted in the baggage room and the notice upon the ticket purchased by the passenger, and upon these bases the contention that the liability of the company, if any, was limited to one dollar per pound to the extent of 150 pounds.

Under the New Jersey statute, the right is conferred upon the company by giving notice to any person or persons offering goods, merchandise or baggage for transportation on the railroad, to limit its liability. The notice was given in this case under the statute so far as it relates to baggage (wearing apparel only), but with respect to merchandise there was no limitation in terms upon the ticket. The notice which was posted conspicuously in the office specified the limitation as to both baggage and merchandise, but it will be seen from the reading of the New Jersey statute that not only was this necessary, but in addition there was the requirement that where goods, merchandise or baggage are received for transportation, there should also be a notice " inserted in the bills of lading or receipts given for such goods or merchandise and in the tickets delivered to passengers.” (See Gen. Stat. of N. J. 2612, § 138.)

It is not claimed that there was any receipt or bill of lading given to the plaintiff when the traveling case with the merchandise was delivered for transportation and, as we have pointed out, there was nothing in the ticket which called the attention of the plaintiff to any limitation of liability for merchandise. Were it not for the limitation which the statute allows in the case of both baggage and merchandise, the carrier would be liable for the full value of the property lost; and the only way that the company could get rid of liability for the full value of the property delivered would be by taking advantage of the statute and giving the notice as thereby required, which, as we have seen in the case of this particular merchandise, was not done.

There are decisions which sustain the view that, if the property delivered is of such a peculiar and exceptional value that the duty is imposed upon the passenger of calling the attention of the representative of the company thereto, and he fails to do so, the company would not be liable for the full value. Where, however, as here, there was nothing extraordinary or exceptional about the character or value of the merchandise delivered, we do not think that the cases referred to are applicable. Upon this branch of the subject, therefore, if liable at all, as we think the defendant is, the learned trial judge properly held that it was liable for the full value of the merchandise which it undertook to transport.

The defendant calls attention to the fact that the value of the articles which were the exclusive personal property of the plaintiff did not exceed the sum of ninety-seven dollars and fifty cents, and that the balance for which the jury found a verdict consisted of the value of samples and goods which had been delivered to the plaintiff on memorandum. It is apparent, however, from the plaintiff’s testimony that these were sold to him on memorandum of sale, and unless returned by him he would have to pay for them. In effect, therefore, there was a sale to him, and though referred to as a sale on memorandum, the only limitation upon the plaintiff’s unqualified title such as would vest by an absolute sale, was that he could have returned the property and thus have avoided payment, or, if he did not pay therefor at the time fixed, the sellers might disaffirm his title and recover the property, or, affirming the sale,, sue for the value. The goods having been lost, the former remedy was taken from the sellers and the liability of the plaintiff to return, the property made him liable to the sellers for their value. The. title, however, passed, and for the reasons already given the plaintiff was entitled to recover the full value of the property.

We think, therefore, that the judgment and order appealed from should be affirmed, with costs.

Van Brunt, P. J., Hatch and Laughlin, JJ., concurred Patterson, J., dissented.

Judgment and order affirmed, with costs.  