
    Samuel Goldberg, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    First Department,
    November 6, 1914.
    Common carrier — liability for loss of goods in transit—misstatement as to kind of goods —recovery of excess charges upon discovery of mistake.
    A common carrier cannot escape liability for the value of goods lost in transit, merely because of a non-fraudulent misstatement as to the kind of goods shipped.
    Where a common carrier has been misinformed as to the kind of goods shipped, it may, upon discovering the mistake, collect the excess charges.
    Appeal by the defendant, The New York Central and Hudson Biver Bailroad Company, 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 21st day of February, 1914, upon the decision of the court after a trial before the court without a jury at the New York Trial Term.
    
      William Mann, for the appellant.
    
      Milton M. Goldsmith, for the respondent.
   Scott, J.:

The action is for the value of goods lost in transit. Steinbach Brothers are fur manufacturers. On September 17, 1912, at the city of New York they delivered to defendant for transportation to plaintiff at Cincinnati a case containing furs of the value of $693.75.

There was evidence, which in the nature of things could not be contradicted and which the trial judge believed, that when the case left Steinbach Brothers’ possession it was marked with the name and address of the consignee and with the word “ furs ” conspicuously displayed. The case was delivered by Steinbach Brothers to a local expressman, whose driver actually delivered the case to defendant and who made out the bill of lading, which defendant signed, and upon which the action depends. This bill of lading describes the goods as “One case D. G.,” which it is conceded means “dry goods.” Defendant’s clerk, who signed the bill of lading, relied entirely upon the representations made by the driver as to the contents of the case; never saw the case itself, and, so far as appears, no representative of defendant ever compared or had an opportunity to compare the bill of lading with the marks on the case.

The complaint alleges that defendant’s contract of carriage was: “In consideration of a reasonable compensation then agreed to be paid to it by the plaintiff, and which compensation was the usual freight rate for dry goods between New York City and Cincinnati, the defendant agreed ” safely to carry and deliver the goods. It is conceded that at the time of the shipment the official freight classification filed with the Interstate Commerce Commission provided for a single first class rate for dry goods and a double first class rate for furs, to wit, sixty-five cents, and one dollar and thirty cents per 100 pounds respectively. As a result of the misdescription in the bill of lading of the contents of the case, the plaintiff was charged and agreed to pay the smaller rate applicable to dry goods, instead of the higher rate applicable to furs. Although it is conceded that the plaintiff is chargeable with the act of the express driver in misdescribing the contents of the case, the court has found, and for the purpose of this appeal we must accept his finding, that such misdescription was the . driver’s mistake and not made with any intention to fraudulently misrepresent the nature of the merchandise shipped. The defendant relies upon a line of cases in the United States Supreme Court and elsewhere, wherein it has been held that a false statement as to value, by which a lower rate is paid or agreed to be paid than would be charged if the true value of the goods was stated, limits the liability of the common carrier to the value stated.

These cases do not, however, go to the extent of relieving the carrier from all liability in case of such a misrepresentation, and of such limitation of liability, Mr. Justice Lurton, speaking for the United States Supreme Court, quoting from Bernard v. Adams Express Co. (205 Mass. 254, 259), says in Adams Express Co. v. Croninger (226 U. S. 511, 512): “ But such a contract as we are considering in this case is not an exemption from liability for negligence in the management of property, within the meaning of the statute. It is a contract as to what the property is, in reference to its value. The purpose of it is not to change the nature, of the undertaking of the common carrier, or limit his obligation in the care and management of that which is entrusted to him. It is to describe and define the subject matter of the contract, so far as the parties care to define it, for the purpose of showing of what value that is which comes into the carrier’s possession, and for which he must account in the performance of his duty as a carrier. It is not in any proper sense a contract exempting him from liability for the loss, damage or injury to the property, as the shipper describes it in stating its value for the purpose of determining for what the carrier shall be accountable upon his undertaking, and what price the shipper shall pay for the service and for the risk of loss which the carrier assumes.’ ”

I do not think those cases are applicable. There was here no misstatement of value, but merely a non-fraudulent misstatement of the kind of goods shipped.

I find nothing in the statute or decisions, and there is no specific clause in the bill of lading (as there is as to value), exempting the carrier or limiting its liability in case of such a misdescription as the present. The company undoubtedly had the right to collect the excess freight when it discovered the mistake, and the shipper is criminally liable under section 10, paragraph 3, of the Interstate Commerce Act if he “ knowingly and willfully ” misrepresents the contents of the package. (24 U. S. Stat. at Large, 382, § 10, as amd. by 25 id. 851, § 2, and 36 id. 549, § 10.) But I can see no ground on the facts of this case upon which defendant can escape liability altogether.

The judgment appealed from should be affirmed, with costs.

Ingraham, P. J., Clarke, Dowling and Hotchkiss, JJ., concurred.

Judgment affirmed, with costs.  