
    ELISE MAGNIN, et al., Plaintiffs and Respondents, v. WILLIAM B. DINSMORE, as President of the Adams Express Company, Defendant and Appellant.
    COMMON CARRIERS.
    Their duties and liabilities.
    Concealment of the value of packages as affecting the CONTRACT WITH CARRIER.
    The case at bar has been tried four times in the court below, and has been reviewed three times by the court of appeals (3 Jones & Spencer, 188; 53 N. Y. 652; 56 Id. 168; 6 Jones & Spencer, 348; 60 N. Y).
    
    On the last trial, now in review, the judge submitted to the jury the question as to whether the defendant was guilty of gross negligence or misfeasance or abandonment, in the' course of its duties as carriers, and charged, that if the jury found it was so guilty, that the plaintiffs were entitled to recover the value, with interest, of the goods shipped.
    
      Held by the court, that the evidence did not warrant this submission as to gross negligence, &c.
    See the opinions on the review of this and the former questions before this court and the court of appeals.
    Before Speir and Sanford, JJ„
    
      Decided March 20, 1876.
    
      The action was brought by the plaintiffs who compose the firm, VVe J. Magnin, Gruedin & Go., against the Adams Express Company, to recover the value of a package entrusted to its care, for transportation to Memphis, Tennessee, and alleged not to have been delivered there to the consignees thereof.
    The jury, under the charge of the court, found a verdict for the plaintiffs for the full value of the package, with interest, amounting to two thousand eighj: hundred and thirteen dollars and ninety-six cents, and judgment was entered thereon.
    The defendants appeal from the judgment and the order denying a motion for a new trial. The facts appear in the opinion of the court
    
      Mr. Da Costa, for appellant.
    
      C Bainbridge Smith, for respondent.
   Speir, J.

This case has been tried four times. It has been carried to the court of appeals three times, and we. are now again called upon to review the questions arising on the fourth trial.

The history of the case, and the several stages of judicial investigations it has passed through, may be found recorded in 3 Jones & Spencer's R. 182; 53 N. Y. 652; 56 Id. 168 ; 6 Jones & Spencer, 248 ; and 62 N. Y.

It is not necessary, nor will it serve any good purpose, to review the foregoing decisions, as they may be easily referred to, and are not now important further, than to briefly state the result of the decision in the case last reported by the court of appeals. The very able and learned opinion by Mr. Justice Folger has so fully and precisely stated the points upon which a right decision of the case depends, that our duty will be sufficiently discharged by ascertaining whether this ' last trial has been conducted in accordance with that decision.

By the last two decisions of, the court of appeals it was decided that the contract between the plaintiffs and defendant did not per se excuse the defendant for liability for a loss arising from its negligence. This contract was that if the plaintiffs did not state to the defendant the value of the property entrusted to its care for transportation, they could not demand in case of loss a sum exceeding fifty dollars for the loss or de • tention thereof. The question whether the package had been delivered to the consignees at Memphis had been before submitted to the jury, and they found for the plaintiffs. The defendant had given no explanation of the nondelivery. But it was shown on the part of the plaintiffs that some- months after the shipment, ’ and within a year, the box containing the goods which had been shipped was picked up near Go wan us, on the East River shore, empty. And the court held, these facts thus shown would have warranted the submission to the jury of the question of negligence, if that was a material inquiry in determining the rights of the parties.

The appellate court, in its last decision, points out the distinction between the case then presented for adjudication and the case decided in 56 W. T., and says: “But the judgment of the court then given was only upon the questions then presented. Other questions now arise.” And the court, by its last decision upon the questions then presented, decided that the plaintiffs were not entitled to recover for the actual value of the contents of the package, by reason of their concealment and fraud in not disclosing to the carrier the contents thereof. The question of the concealment of the value of the goods contained in the box had been passed upon on the former trial as one of fact, and the jury found that there was not upon the part of the plaintiffs either active fraud or concealment, neither in the manner in which the box was delivered to the carrier nor in what was said or left unsaid at the time of the delivery, nor in the character of the package in the way in which it was enclosed and sealed.

The defendant urged at the former trial, and on the argument of the last appeal, that the question was not one of fact for a jury, but of law for a court, and that the plaintiffs should be nonsuited for concealment of the true value of the package ; that when the shipper agrees with the carrier for a limited liability, he thereby expresses to the latter his estimate of the risk to be run, and the care needed, and holds out the package to him as an ordinary article which he would have no objection to take as a matter of course. The carrier is thereby put off his guard. This puts upon the carrier the duty of inquiry. It is a concealment of an important fact entering into the bargain to be made ; that such a concealment amounts to a fraud in law upon the carrier, and where there is no dispute as to the material facts, as there is none in this case, it is a question of law for the court, and not of fact for-the jury.

The court has sustained this position of the defendant, and recorded the decision as follows : “ That the question of concealment of value upon the undisputed facts of the agreement, and of the silence of the plaintiffs, was one of law for the court, and not of fact for the jury, and that silence only as to value amounted to such an imposition upon. the defendant as would relieve it from a liability for the total value of the goods, unless something more in its conduct is shown than negligence to carry safely and deliver promptly.’

It is not claimed by the court that although in such a case the carrier is relieved from liability for a loss occurring from ordinary negligence, that he will thereby be relieved when his acts and those of his servants have amounted to misfeasance or abandonment of his character as carrier.

The evidence before the court below did not differ in any material degree from that before the court of review last decided. The learned judge charged the jury that if they found that the goods were not delivered in Memphis, and that the defendant was guilty of gross negligence or misfeasance or abandonment in the course of its duties as carriers in the transportation of the goods, then the plaintiffs were entitled to recover their value, with interest. The defendant’s counsel requested the court to charge that if the jury found that the package was not delivered in' Memphis, on the undisputed facts of the case, as matter of law, the plaintiffs are not entitled to recover the total value of the goods, but only the limited sum of fifty dollars, with interest. This request was declined, and an exception taken. This, we think, was error, and therefore the judgment and order appealed from should .be reversed, and a new trial ordered, costs of the appeal to abide the event.

Sanford, J.

I concur in the result arrived at by my learned associate, but solely upon the ground that the evidence in the case did not, in my opinion, warrant the submission to the jury of the question whether the defendant had been guilty of gross negligence or of misfeasance or of abandonment in the performance of his duties as a carrier in respect to the transportation of the merchandise, or of a conversion thereof. These several degrees of culpability are correctly defined by the learned judge in his charge to the jury, and I am of opinion that there is no evidence in the case that any or either of the acts or omissions comprised within such definitions respectively were •either committed or omitted by the defendant. If the evidence is insufficient to sustain a finding in the affirmative of either of the several questions thus submitted to the jury, there was error in the charge of the learned judge, and the verdict of the jury should accordingly be set aside.

It has been twice held by the general term of this court, that evidence substantially the same as that now before the court ought not to go to the jury, upon the question of simple negligence (3 Jones & Spencer, 182 ; 6 Id. 248). In the case last cited it is stated that “the judge who presided at the second trial felt himself bound by the decision of the general term as to the insufficiency of the evidence to establish negligence, and consequently, the proof being the same, he withdrew this branch of the case from the consideration of the jury,” and that, “the general term sustained the rulings of the trial judge.” The court of appeals thereupon held that this ruling was erroneous, and that “ there was evidence which would have warranted the submission to the jury of the question of negligence” (6 J. & S. 251; 56 N. Y. 173). But it does not necessarily follow that the same evidence which would warrant the submission to the jury of the question of simple negligence will also warrant the like submission of the question of gross negligence, much less that of misfeasance or abandonment, or conversion (Riley v. Horne, 5 Bingh. 217). The ruling of the general term on each of the occasions referred to necessarily involved the proposition that the evidence was insufficient to warrant such submission upon either of these questions, inasmuch as that evidence which is insufficient to sustain a finding of the lower degree of culpability is a portion insufficient to sustain a finding of the higher. That ruling still stands as the law of the case, except in so far as it has been questioned by the court of appeals, and that court has only decided that the ruling was erroneous with respect to the minimum of fault, without intimating any opinion as to the sufficiency or insufficiency of the evidence, as applicable to the question of any other grade of misconduct whatever. On the last appeal to the court of appeals it was held that in consequence of a concealment by the plaintiff of the true value of the goods the defendants were relieved of liability for a loss occurring from ordinary negligence, but the court expressly declined to hold that his exoneration extended to the case of a misfeasance or abandonment of his character as a carrier. That question, thus left open, was in my opinion correctly decided by the learned judge at the trial, when he charged, in effect, that if the loss occurred through gross negligence or misfeasance or by reason of abandonment, or of a conversion of the property, the defendant must be held liable. But the mere discovery of the box in which the goods were originally packed, at the time, and under the circumstances, and in the manner disclosed by the evidence, seems to me insufficient to inculpate the defendant to the extent implied by the definition of either one of the several offenses or grades of offense imputed to him by the verdict, as laid down by the learned judge in his charge ; 'and this notwithstanding the absence of any explanation of the omission to deliver the goods to their consignee. Under the ruling of the court of appeals, in its last decision, it seems to me that the onus probandi with respect to something more than simple negligence, is upon the plaintiff, and that there should therefore be made apparent something more than a mere conjectural probability of the commission of the wrong imputed: £! there must be some element of moral certainty and exclusion of reasonable doubt ” (Payne v. Forty-second Street R. R. Co., 8 J. & S. 13).

The judgment should be reversed, and a new trial ordered ; costs to abide the event.  