
    WILLIAM GHORMLEY, Respondent, v. WILLIAM B. DINSMORE, President, &c., Appellant.
    
      Common carrier—Hxpress companies, liability of—Trial.
    
    A common carrier may stipulate for exemption from liability for losses occurring through his own negligence or that of his servants ; but the contract exempting the carrier from loss or injury in the carriage of goods, should not be deemed to include negligence, by any general words, nor unless the contract in clear and explicit form, embraces negligence.
    The language and terms of the contract in this case—i. e., the receipt of the Adams Express Company,—have already had judicial consideration and construction, and it has been held that it does not cover nor include immunity from loss occasioned by the carrier’s negligence (Magnin v. Dins-more, 56TT.Y 168; lb. 621T.Y. 39; Mynard». Syracuse, &c. E. R. Co., 71 lb. 180).
    Where the shipper fails at the time of the shipment to state the just and true value of the merchandise shipped, the carrier will he relieved from liability, beyond the amount fixed by the receipt, unless something more is shown than mere negligence to carry safely and deliver promptly; e. g., misfeasance or willful acts.
    
      
      Decided January 5, 1885.
    In the case at bar, the value of the goods was stated in the receipt at fifty dollars, which was much less than the value as found by the verdict. The package, as appeared by the evidence, was not delivered to the consignee and the non-delivery was unexplained by the carrier. There was some evidence tending to show a misdelivery. Defendant requested the court to charge that in no event could the recovery exceed fifty dollars and interest, but no distinct point based on plaintiff’s failure to state true value was made, nor was there a distinct attempt to limit defendant’s liability to cases of misdelivery or other misfeasance. The questions of negligence and the value of the goods, were submitted to the jury; there was no exception to the submission of the question of negligence, but the defendant excepted to the submission of the value on the ground that the contract between the parties fixed the same. Held, that this exception was unavailing, in case of a loss through the negligence of the carrier, as was prima facie, established by the non-delivery in this case, and found by the jury. Further held, that if the defendant’s counsel intended to raise the question of the carrier’s liability for any degree of negligence under the receipt, or that the omission to state the true value, limited the recovery to fifty dollars, the points should have been dis- ■ tinctly presented at the trial.
    The contract or receipt in question, provided that the shipper should present a written claim for the loss, within thirty days from its date, and this not having been done, it was urged on the trial against any recovery. It appeared that the defendant took time in searching for and tracing the package and finally stated to plaintiff that it could not be found, when plaintiff presented his claim. Held, that these facts excused the plaintiff from presenting his claim at an earlier date.
    Before Sedgwick, Ch. J., Van Vorst and Freedman, JJ.
    Apeal from a judgment entered upon the verdict of a jury-
    This action was brought the to recover sum of $275, damages for non-delivery of a package delivered by the plaintiff to the Adams Express Co., as a common carrier.
    The answer denies, on information and belief, the delivery of the package to the Express Co. for carriage for a reasonable consideration, and its negligence in fading to deliver the same, as alleged in the complaint; but alleges that on the 12th day of November, 1883, “ a certain package was delivered to the Adams Express Oo. addressed, and to. be shipped and forwarded to Mrs. J. H. Brinton, Eo. 1423 Spruce street, in the city of Philadelphia ; that said package was so delivered, by a person giving to the Adams Express Company the name of Ghormley but that the value of said package was not known to the Adams Express Company. The articles contained in said package are admitted to be the same as mentioned in the complaint. The answer further alleges a special contract or bill of lading, received and accepted by the plaintiff, limiting the liability of the express company for any cause whatever, excepting the fraud or gross negligence of the company, to the sum of $50; and exempting it altogether from any loss or damage, unless the claim should be presented within thirty days from the date of such contract or domestic bill of lading; and further alleging, that claim of the plaintiff in this action was not presented within such time.
    The two defenses were based, respectively, on the following clauses of the receipt and contract: “ Eor, in any event, shall the holder hereof demand beyond the sum of fifty dollars, at which the article forwarded is hereby valued, unless otherwise herein expressed, or unless specially insured by them, and so specified in this receipt, which insurance shall constitute the limit of the liability of the Adams Express Company.”
    “In no event shall the Adams Express Company be liable for any loss or damage unless the claim therefor shall be presented to them, in writing, at this office, within thirty days after this date, in a statement to which this receipt shall be annexed.”
    After a trial of the issues before a jury, a verdict was rendered in favor of the plaintiff, and his damages assessed at the sum of $215.
    Further facts appear in the opinion.
    
      Charles M. Da Costa and William D. Cuthrie, for appellant.
    I. The receipt in evidence was a valid contract limiting the defendant’s liability. Eeceipts similar in every particular—indeed, identical in language—to .that delivered to the plaintiff in this case, have repeatedly been held valid by the highest court of this state, and to contain a binding contract of affreightment. At most, the plaintiff can only claim that the package in suit was lost and not delivered. There is no proof of conversion— no proof of any wrongful act (Magnin v. Dinsmore, 56 N. Y. 168 ; 62 Ib. 35). Plaintiff could not recover the actual value of the contents of the package—in other words, could not recover more than the $50, by reason of his failure to disclose the actual value of the package (Magnin v. Dinsmore, 62 N. Y. 35, 70 Ib. 410). In Belger v. Dinsmore (51 Ib. 166), the court, in speaking to a receipt similar in all respects to the one at bar, said : “A party accepting such an instrument, as has been already shown, declares his assent by such acceptance, to those terms and conditions, they thereby become obligatory on both parties, and prescribe their mutual rights and obligations.” And the recovery was limited to the sum of fifty dollars, the agreed valuation (See also Wetzell v. Dinsmore, 54 Ib. 496; Kirkland v. Dinsmore, 62 Ib. 171; Collender v. Dinsmore, 55 Ib. 200; United States Court in this Circuit, Berry v. Dinsmore, unreported [1876]; Dinsmore v. Neresheimer, 32 Hun, 204).
    The above authorities, and others too numerous to cite, have thus established the validity of these receipts and contracts. The question resolves itself to this: Is the shipper bound by the valuation of the package shipped, as fixed by himself in his contract with the carrier ? The plaintiff knew the terms of the contract; it was filled out by one of his clerks, and so tendered to the Express Company for signature. It does not purport to absolve the carrier from liability for his negligence: Had the plaintiff in the receipt stated what he now claims to be the real value, his right to recover that amount in this action would have been unquestioned. But, after a loss has occurred, he cannot be heard to assert that his representation in the receipt as to the value of the package, was false. Particularly is this so when it is recollected that the charges of the Adams Express Company for carriage vary with the value of the packages to be carried. An additional charge of ten cents for every $100 or fraction thereof is demanded when the package is over $50 in value. By withholding the real value, the plaintiff deliberately deprived the Express Company of this additional freight. No principle of law or public policy can be mentioned' which has ever sanctioned any rule preventing the shipper and carrier from agreeing on the value of the article carried, or enabling such shipper to repudiate the contract after a loss, and recover the real value if it exceed the agreed valuation. The defendant, therefore, insists that the court below erred in admitting evidence as to the value of the contents of the package forwarded, and likewise erred in refusing to charge the jury that the plaintiff’s recovery could in no event exceed the sum of fifty dollars.
    II. The failure to present a written claim within thirty days was fatal to the plaintiff’s recovery (Smith v. Dinsmore, 9 Daly, 188 ; Hirschberg v. Dinsmore, 67 How. Pr. 103; Express Company v. Caldwell, 21 Wall. 264; Weir v. Adams Express Co., 5 Phila. 355 ; Southern Express Co. v. Hunnicutt, 54 Miss. 566 ; Lewis v. Great Western Railway Co., 5 Hurlstone & N. 867). So, also, in this state, stipulations of the same nature in insurance policies and telegraph blanks have been held valid and binding (Matter of Att’y Gen’l v. Continental Life Ins. Co., 93 N. Y. 70 ; Blossom v. Lycoming Ins. Co., 64 N. Y. 162 ; Young v. W. U. Tel. Co., 34 Super. Ct. 390 ; 65 N. Y. 163 ; Heimami v. W. U. Tel. Co., 57 Wisc. 562).
    III. There was no waiver or extension by the Adams Express Company of the thirty days’ clause. The contract required the presentation of the claim in writing within thirty days from the 12th of November, 1883. Inquiry as to the package made at the office of the Adams Express Company was certainly not a compliance with this thirty days’ clause. It was of the essence that a claim in writing should be presented within the thirty days (Young v. Western Union Tel. Co., 34 Super. Ct. 390). But, as a matter of fact, no notice of any kind was given. The only evidence is that inquiry was made as to the package, and that the company’s agents promised to look for and trace the package. The contract does not call for notice of loss or damages, but for a claim for loss or damage. A claim is, in just judicial sense, a demand of some matter, as of right, made by one person of another, to do or forbear to do some act or thing, as a matter of duty (Costen v. Mayor, &c., 43 N.Y. 399). The only evidence in the case is of inquiries as to the non-delivery of the package. Such inquiries were undoubtedly made within thirty days after the date of the receipt. But it appears that the first oral demand or claim for the $275 was made in March, four months after the shipment. There was no proof that the presentation of the claim was deferred to enable the company to find the package, or that reliance was placed on anything said. Even could such an inference be drawn from the proof of the inquiries that were made, at the office of the Express Company, it does not appear that there was any authority whatsoever in the employees to waive or extend any condition. Such power could not be presumed (First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278 ; Young v. Western Union Tel. Co., 65 N. Y. 163). See Matter of Att’y-Gen’l v. Cont. Life Ins. Co. (93 N. Y. 74).
    IV. There was no proof of the non-delivery of the package by the carrier. Nor was there any proof of a conversion or misfeasance on the part of the carrier. But conceding a non-delivery, and conceding further that such non-delivery was unexplained, nevertheless these facts could not establish a wrongful act, such as conversion (Magnin’s Case, 70 N.Y. 417).
    The is not a scintilla of evidence to prove misdelivery. It appeared that in answer to written inquiry, the plaintiff received a communication to this effect: “Delivered at 755 Corinthian Ave. Nov. 13, ’83, Signed, Mrs. J. B. Brinton.” Whether or not this was the consignee of the package, was not shown. It certainly could not be inferred from difference in the middle letter. The rule is too well settled now to be questioned, that in legal proceedings the law does not recognize a middle letter, and knows but the initial of one surname (Clute v. Emmerich, 32 Hun, 10). But aside from any such technical reasoning, the plaintiff’s evidence shows beyond doubt that the package .delivered at loo Corinthian Avenue was not the package which the plaintiff had shipped.
    The plaintiff’s cause of action, as stated in the complaint, was plainly grounded on breach of the contract to carry. It was alleged an agreement to carry for a valuable consideration and the breach or non-fulfillment of it (Catlin v. Adirondack Co., 11 Abb. N. C. 311, 380). Although the plaintiff alleged a consideration in his complaint, he wholly failed to prove one on the trial (Bristol v. Rensselaer & Saratoga Railroad Co., 9 Barb. 158). But the plaintiff will not be permitted on this appeal to claim that his action is not on contract, for non-delivery, but in tort for conversion. The whole drift of the plaintiff’s case was toward proof of loss and non-delivery. No issue of conversion was tendered or tried. The court will not now allow the plaintiff to change front after the trial and thus mend his hold. Misdelivery was not claimed below. The court charged only on the question of non-delivery ; the motion to dismiss was on that assumption (See Salisbury v. Howe, 87 N. Y. 128).
    
      Peter Mitchell, for respondent.
   By the Court.

Van Vorst, J.

Receipts, like the one before us, given by a carrier, on the delivery to him of goods for carriage, and by which the liability of the carrier was limited to a specific sum, in case of the failure by him to deliver the goods to the consignee, have been frequently under consideration in the courts of this state. In several of these cases, the question has been more or less discussed, as to whether the limitation of liability, in the instruments under consideration, embraced the case of a failure to deliver, or a loss occasioned, by the negligence of the carrier.

Under the decisions in this state, a common carrier may stipulate for exemption from liability for losses occurring through his own negligence, or that of his servants (Steers v. Liverpool, New York & Phil. S. S. Co., 57 N.Y. 1; Poucher v. New York Central R. R. Co., 49 lb. 263 ; Magnin v. Dinsmore, 56 Ib. 168). The result of the decisions is, however, that the contract of the carrier, exempting him for loss or injury in the carriage of goods, should not be deemed to include negligence, by any general words, nor unless the contract in clear and explicit form, embraces negligence (Westcott v. Fargo, 61 N. Y. 542). The language and terms of the receipt, issued by the defendant, in this action, on the delivery of goods for carriage, have already had careful consideration, and have had judicial construction.

In Magnin v. Dinsmore (56 N. Y. 168), it was held, that the contract did not include immunity from loss occasioned by the carrier’s negligence. That construction has been at least twice adopted, by the court of appeals, in subsequent decisions. In the same case (62 NY. 39), Folgee, J., says:—“This contract did not, per se, excuse the defendant from liability for a loss arising from its own negligence. Thus we have heretofore held in this case.” And in Mynard v. Syracuse, &c. R. R. Co. (71 N. Y. 180, 185), Church, Oh. J., referred to Magnin’s case (56 N. Y. 168), says: “It was held that the stipulation did not cover a loss accruing through negligence, Johnson, J., in the opinion saying, 1 But the contract will not be deemed to except losses occasioned by the carrier’s negligence unless that be expressly stipulated.’ In each of these cases, the language of the contract was sufficiently broad to include losses occasioned by ordinary or gross negligence, but the doctrine is repeated, that, if the carrier asks for immunity for his wrongful acts, it must be expressed, and that general words will not be deemed to have been intended to reheve him from the consequence of such acts.”

If Belger v. Dinsmore (51 N. Y. 166), in the commission of appeals, cannot be reconciled with the above conclusion, it must be considered as overruled by the later cases in the court of appeals.

After the decision in Magnin v. Dinsmore (56 N. Y. 168), and upon a subsequent trial of that cause, a new element was introduced in the case. The point was taken by the defendant, that the plaintiff had failed, at the time' of the shipment, to state the just and true value of the merchandise. This was held in the end to have been “such an imposition upon the defendant, as would reheve it from habihty for the total value of the goods, unless something more is shown than negligence to carry safely and to deliver promptly ” (Magnin’s case, 62 N. Y. 35, 44). And this view was sustained in the same case (70 N. Y. 410), Allen, J., saying:—“The disclosure of the value of the goods was a condition precedent to the attaching of any habihty of the carrier, for merely ordinary neglect, unaccompanied with any misfeasance or willful act.”

The instrument dehvered by the defendant to the plaintiff in this case, is in substance the same, as that before the court of appeals in Magnin v. Dinsmore. By. the terms of the receipt, the goods, dehvered to be carried, were valued at fifty dollars. The property was not dehvered to the consignee. Upon the trial the plaintiff was allowed to prove the real value, which was considerably in excess of the sum stated in the receipt, and he obtained a verdict for the full amount.

The package was directed to Mrs. J. H. Brinton, 1423 Spruce Street, Philadelphia, Pa.” It was never dehvered to her. The defendant, -upon the plaintiff’s application, after the non-dehvery was brought to its attention, attempted to trace the missing package. The return first made to the plaintiff, was, that the package, or one answering its description, in every particular, had been dehvered at 155 Corinthian Avenue, to Mrs. J. B. Brinton.. Afterwards, however, the defendant’s agent, stated to the plaintiff, that the package delivered at Corinthian Avenue, was not the one shipped by plaintiff, but was a package containing books. The defendant’s agent informed the plaintiff, that they had sent a tracer in every direction, and could not find out when or where the package was delivered. Unless delivered at Corinthian Avenue, the package has not been accounted for. The defendant’s counsel, at the close of the plaintiff’s case, moved to dismiss the complaint upon several grounds, amongst which was, that the failure to perform the contract was not established.

There was sufficient evidence of the non-delivery, at least, to take the case to the jury. That seemed to be the principal question litigated upon the trial. But upon the argument of this appeal, the learned counsel for the defendant admitted that there was a non-delivery. That point, therefore, is out of the case.

At the close of the case, the defendant’s counsel asked the court to charge the jury, that in no event can the recovery of the plaintiff in this action exceed the sum of fifty dollars, and interest from the date of shipment. This motion was properly denied by the judge. The case was in no such condition, that the trial judge could say, that the defendant was free from negligence. That was a question of fact, if, as the defendant’s counsel contended at that time, no non-delivery had been shown.

The court then charged the jury, ‘ ‘ that the failure of the defendants to deliver the goods, unexplained, is evidence of negligence.” • To which the defendant’s counsel then and there excepted, on the ground that there was no evidence of a failure to deliver. ” There was certainly evidence that the package had not been delivered to the consignee, In fact, it is now a part of the case, that it was not delivered. That a non-delivery unexplained is evidence of negligence, has been too often held to need authority to support it. It was so held in Canfield v. Balt. & O. R. R. Co. (93 N. Y. 532).

No exception was taken to the submission to the jury of the question of negligence, as affecting the defendant’s liability under the receipt. If the defendant’s counsel intended to raise the question of the carrier’s liability for any degree of negligence, under the receipt, he should have distinctly raised it at the trial, and while the judge was charging the jury.

Nothing was said as to any positive misfeasance, or misdelivery of the package. If it was in the mind of the defendant’s counsel, that the defendant’s liability could only be established by proof of an actual conversion of the merchandise, through a wrong delivery, or other misfeasance, he should have distinctly raised that question at the time.

The trial judge further stated, “I leave to the jury,to determine what the value of the goods is.” The defendant's comisel excepted, on,the ground, “that the contract between the parties fixes the value of the goods.” But that objection is unavailing, if the conclusion reached above, that the carrier is hable for the full value, in case of a loss through his negligence, is correct. The authorities above cited show that the defendant is hable, notwithstanding the limitation in his receipt, for the full value, when the goods committed to him for carriage are lost through his negligence.

No distinct point appears to have been raised on the trial, arising from the fact that the real value of the goods had not been stated by the plaintiff, at the time of the delivery of the goods for carriage, so as to bring the case within Magnin v. Dinsmore (70 N. Y. 410). Had tho defendant claimed, and urged in an effective way, that the omission to state such value, should limit the recovery to fifty dollars, unless an actual conversion had been proven, then the question could have been submitted to the jury, as to whether or not there had been a misdelivery, or other misfeasance. But an examination of the case does not show that any such ground was distinctly taken below. This subject is alluded to for the reason that the defendant’s counsel, in his brief used on this argument, incidentally alludes to the fact that the defendant carrier was deprived of additional freight by the withholding of the real value. A point of that character should have been plainly presented at the trial, and before the case was submitted to the jury, and a ruling thereon had.

The failure of the plaintiff to present a written claim to the defendant, within thirty days of the date of the receipt, is, however, urged as a reason why he should not recover in this action. That point was urged on the trial. But it cannot prevail.

The provision in the contract upon that subject cannot apply to this case. As soon as he was apprised of the loss, the plaintiff called upon the defendant for an explanation. Time was taken by the defendant in searching for, and tracing the package. They supposed that it had been delivered, but in the end stated that it could not be found. When informed of that fact, the plaintiff presented his claim.

Time taken by the defendant in searching for the goods, under the circumstances of this case, in the expectation of finding them, excused the earlier presentation of the plaintiff’s demands (Smith v. Dinsmore, 9 Daly, 188). The judgment and order are affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.  