
    Fannie Grossman, Resp’t, v. Cortland H. Dodd, Treas’r, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    ¡Carriers—Limitation of liability.
    A contract limiting the liability of a common carrier to a specified sum does not arise as matter of law from the acceptance from an express company of a receipt for baggage containing a clause to that effect, but the carrier to relieve itself from full liability is hound to establish a contract. The question whether a party accepted the receipt with notice of its contents or with notice that it contained the terms of a special contract so as to require him to acquaint himself with its contents, is one for the iurv to ■determine.
    
      Appeal from a judgment in favor of plaintiff against defendant entered on report of referee.
    
      Lockwood & Hall, for app’lt; Townsend, Dyett & Mnstein, for resp’t.
   O’Brien, J.

This action was brought to recover the value of wearing apparel in the plaintiff’s trunk, which was delivered to the defendant to be carried from Jersey City to East Eightieth street, New York, and in transit fell into the Hudson river, and was thereby saturated with salt water, discolored and damaged.

The defendant denied negligence and value of property,-and set up a special agreement that in case of loss or damage to said trunk or its contents by reason of negligence, or otherwise, it should not be liable for an amount exceeding $100, unless specially agreed for in writing and noted in said contract, and the extra risk paid therefor. The question most seriously litigated, and the substantial one presented upon this appeal, relates to the defense thus interposed as to whether or not the defendant had limited its liability by the special agreement to $100.

Upon the facts the referee decided against the defendant, and awarded judgment to the plaintiff for $1,707.50, damages and costs.

In support of the conclusions reached by the referee the testimony shows that the plaintiff arrived from Europe by the Red Star Line, landing at its pier in Jersey City. She there delivered her trunk to the agent of the defendant, who immediately signed and delivered to her a paper which appears in full in the referee’s report, and which in substance stated that the express company received the articles subject to charges based upon a gross valuation not exceeding $100 upon any trunk, and further recited as follows: “ It is mutually agreed, and is part of the consideration of this contract, that Dodd & Childs Express shall not be liable for merchandise, * * * for an amount exceeding $100, * * * unless specially agreed for in writing, and noted hereon, and the extra risk paid therefor.” The delivery of the receipt was before the trunk had been removed. Indeed it was part of the same transaction with the delivery of the baggage. The delivery took place about five o’clock in the afternoon of June 12th, in plain daylight on an open pier, the plaintiff being able to read and understand English. When received, plaintiff delivered the paper to her brother, and neither she nor her brother made any objection to the terms specified in the paper.

The question presented therefore is, was the plaintiff bound by the terms and conditions of this paper, whether read by her or not.

Upon the part of the defendant it was claimed that the acceptance of this paper constituted a contract between the parties and for the loss which subsequently occurred it was only "liable to the extent of $100 in accordance with the terms, thereof.

In view of the numerous decisions, we may regard the law as settled, that a common carrier has the right to limit his common law liability by express contract, shielding him from damage occasioned even by his own negligence and that of his servants. But, as stated in Madan v. Sherard, 73 N. Y., 329, where a traveller on delivery of baggage to a local express company receives a paper which from the circumstances of the transaction he has a right to regard simply as a receipt or voucher to enable him to-follow and identify his property, and no notice is given to him that it embodies the terms of a special contract or is intended to subserve any other purpose than as a voucher, his omission to read the paper is not per se negligence, and he is not as matter of law bound by its terms. The question whether in a particular case the party receiving such a receipt accepted it with notice of its contents or with notice that it contained the terms of a special contract, so as to require him to acquaint himself with its contents, is one of evidence to be determined by the jury. It will thus be seen that no such contract arises as a matter of law from the acceptance of the receipt, bu^the defendant, in order to relieve; itself from full liability, is bound to establish a contract. Sunderland v. Westcott, 40 How., 469; Blossom v. Dodd, 43 N. Y., 264; Rawson v. Penn. R. R. Co., 2 Abb., N. S., 220; Limburger v. Westcott, 49 Barb., 283.

In Woodruff v. Sherrard, 9 Hun, 323, which is a decision of this; general term, wherein the cases were collated and discussed, Daniels, J., in writing the opinion, says: “ To make a binding contract in such a case as this. requires at least the implied assent of the party receiving the instrument”

<, In that case it appeared that a daughter of the plaintiff, in company with another young girl, delivered a check for- a trunk to the clerk of a' transfer company at its office in New York, with instructions to transport the same to -her house in Brooklyn. She then turned away and was leaving the office, but at th¿ suggestion of her companion that she ought to have a receipt she returned and demanded a receipt of the clerk, who thereupon delivered to her a receipt by which it was, among other things, stipulated that the company should not be liable to an amount exceeding $100 unless a special contract was made. She did not read the receipt, or know its contents until after the loss of the trunk. Held, that she never assented to the terms of the contract limiting the liability of the company, and that she was entitled to recover the full value of the trunk.

This and the cases already recited are to be distinguished from those relied upon by the appellant, namely, the cases of Nicholas v. N. Y. Central, 89 N. Y., 370; Guillaume v. The General Trans. Company, 100 id., 498, and Germania Fire Ins. Company v. Memphis, etc., R. R. Co., 72 id., 93.

In reference to those cases the referee aptly says: “I am asked to apply the rule of presumption existing in the case of a shipper of merchandise delivering to a railway company, after discussion with the agents as to rates of freight, lines of transportation! etc., and receiving a bill of lading for His goods, the presumption being-that he accepts the terms of this contract as written, and fails to read it at his peril. I don’t think this is fair to passengers by sea or land.”

The learned referee, in our opinion, was right in his view, that whether a contract existed or not was a question of fact Upon ■all the evidence he decided that the burden placed upon the defendant of making out a plea of a special agreement was not sustained.

The only other question presented upon the appeal to which our attention has been called by appellant relates to exceptions taken to rulings of the referee excluding evidence tending to show what the general course of business was of the defendant

The question before the referee was, what was done and said between the plaintiff and the defendant’s servant -from which the special agreement alleged as to the $100 limit of liability could be proved or inferred. We fail to see how the testimony offered in reference to the ordinary process of receiving baggage from the ■steamer could bear upon the determination of this question; and it being clearly irrelevant, the referee was right in excluding it Our conclusion, therefore, is that the judgment appealed from should be affirmed, with costs.'

Yan Brunt, P. J., and Lawrence, J., concur.  