
    Lawrence L. Gillespie, by Guardian, Etc., Respondent, v. Thomas C. Platt, as President of the United States Express Company, Appellant.
    (Supreme Court, Appellate Term,
    December, 1896.)
    1. Carriers — Limitation of liability.
    Where a shipping receipt provided that the express company should not be held liable for any loss or damage to the property unless it be proved to have occurred from the fraud or gross negligence of the company or their servants, nor any demand be made upon the company for a further sum than 850 unless the value he stated in the receipt, held, that, where ■ the receipt is not attacked for fraud, concealment or improper practice, it must be held to express- the contract of the parties.
    2. Same — Fraud.
    The limitation of liability in such a receipt relieves the express company from liability for nondelivery, but not from an affirmative act of wrong- > doing, even if Unintentional.
    8. Same.
    Where the express company unintentionally made out its way bill for the driver so that it was within his power to, mislead the consignee into receipting for three packages when only two were delivered, and to mis- . lead the company into believing that all the packages had been delivered, the company’s act is wrongful and takes the case out of the rule of exemption under its special contract.
    Appeal from judgment of the First Judicial District Court, rendered in favor of the plaintiff.
    Francis G. Kimball, for appellant.
    Robert M. Gillespie, for respondent.
   Bisohoee, J.

The plaintiff, through an agent, consigned a package containing a piece of jewelry to the defendant for transportation to his home at Seabright, Hew Jersey, under a contract the terms of which were éxpressed in a bill of lading, or shipping receipt, delivered by the defendant’s agent at the time when the package came into his custody for, shipment.

' The only provision of this contract now material was as follows: It is further agreed that this company is not to be held liable or responsible for any loss of or damage to said property or any part thereof from any cause whatever, unless in every case -.the said loss or damage be proved to have occurred frpm the fraud or gross negligeñcé of said company or their servants, nor in any case shall , this company be held liable or responsible, nor shall any demand be made upon them, beyond the sum of fifty dollars,, at which sum said property is hereby valued, unless the jtist and true value' thereof is stated herein.”

• Yo value was stated at the, time, of shipment, and this shipping receipt,, which is not in any way .attacked for fraud, concealment or improper practice, must be held .to express the contract of the parties (Belger v. Dinsmore, 51 N. Y. 166), and to- have effected a limitation upon the defendant’s liability for loss' occasioned by reason of negligence to the sum of $50. Smhe Case, where the limitation clause was practically identical. • ,

The judgment rendered was for $100, the value of the package, as proven by the plaintiff, -and this recovery proceeded upon the ground that fraud in the treatment- of the- property when in the hands of the defendant’s agent appeared, and that -this fraud, being chargeable to the defendant, or his company, brought the case without the exemptions of the contract.

The shipment of this package was not disputed, nor that it came into the hands of the defendant’s agent at Seabright, together with other goods for delivery at the plaintiff’s home. ' These other goods: were delivered to a servant in the plaintiff’s household, -but this servant testified that the package in suit had not been delivered, and ,as to the situation of the package at this point there was a direct conflict" between this servant’s testimony and. that of the defendant’s servant, the driver of the delivery wágon, who testified " that hé had delivered to her this identical package, of which, m , view of its appearance of value, he had taken mental,note. There was, however, some corroboration of the plaintiff’s servant’s testimony— that given by the plaintiff’s mother.

The plaintiff’s servant had signed a receipt for this package, together with two others, but this receipt was so' framed by the-defendant’s agents that but two signatures- by the party receiving - the packages were called for, two items of receipt having been entered upon one line .and the signature being required at-the end of the line, according to the form of the paper. Thus, the-assertion of the plaintiff’s servant that she had received but two-packages and had given a receipt for' that, number only was* not,under these circumstances, in conflict with the receipt, the probabilities being very fairly with her story given in explanation.of the . transaction. . I

The limitation of liability, it is conceded, does not apply in the case of fraud, and if the evidence supports an inference that the carrier or its employees kept the goods instead of delivering them, the company is liable for the full value of the goods without any limitation.

In this case it appears that the ring in question was given by the company to its driver to deliver to the plaintiff, and the finding of the justice establishes that it was not delivered. The driver swears that it was and is contradicted by two persons. This is, therefore, not merely a question of nondelivery. The goods are traced to the company’s agent and he does not account for them except by saying' that he delivered them, which the court finds is not the fact.

The proof shows that the bill of delivery, as made out in the office of the company and given to the driver, could be used, by reason of its form, to perpetrate a fraud and to render its immediate detection by the consignee difficult, if not impossible, while affording apparent protection to the driver and company.

As we have said, there were three packages to be delivered to the consignee, but only two entries were made on the bill which the consignee was asked to receipt. One of the.entries was obscurely worded so as to read for two packages while it might be easily mistaken as intending but one. The fact is found that two packages, only were delivered at the consignee’s house to his servant,-and the' bill was presented to be receipted only in two places. The two signatures were readily obtained and the driver departed with a receipt for three packages thus obtained by a means which readily lent itself to the easy perpetration of a fraud and offered a temptation to commit it.

The limitation of liability in the contract receipt relieved the defendant from liability for nondelivery but not from an affirmative act of wrongdoing, even if unintentional. Mangin v. Dinsmore, 70 N. Y. 410. It may be assumed that the act of the company in making out the way bill for the driver in the manner described was unintentional; that is, that it was not so made out with the purpose of enabling him to commit a fraud; but the act put it in his power to mislead the consignee into receipting for three packages when only two were delivered and into believing that only two were to be delivered, and to mislead the company into, believing that all the packages had been delivered, thus preventing them from ascertaining the fact of nondelivery and making an immediate investigation so as to prevent loss to the consignee. The act of. the company, therefore, in the manner it adopted for.the delivery, was an affirmative act and was .wrongful and takes the case out of the rule of exemption under the special ■ contract. . ■ .

Judgment affirmed, with costs.

Daly, P. J., and McAdam, J., concur.

Judgment affirmed, with costs.  