
    Abraham Marquis et al., Respondents, v. Theodore F. Wood, Treasurer of the United States Express Company, Appellant.
    (City Court of New York, General Term,
    November, 1899.)
    1. Bailment — Terms, of a receiving carrier's receipt, not exempting the connecting delivering carrier from full liability for its own negligence.
    Where a- connecting express carrier wrongly delivers a part of certain goods, shipped under a receipt of the receiving express carrier limiting the liability of the latter, for loss or damage, to fifty dollars, and containing a clause “ nor in any event shall said company be liable for more than the true value of the property ”, the owner of the goods lost is entitled, in an action brought to recover their value, to have the question of value submitted to the jury, and to recover of the connecting carrier more than fifty dollars, if the loss or damage has exceeded that sum and has been occasioned by that carrier’s negligence.
    
      2. Same — Evidence of the value of goods lost.
    Where a part of a single consignment of several bales of goods, of the same kind, has been lost by an erroneous delivery, the owner may prove the value of a bale delivered, as affording some basis for determining the value of the bales lost.
    Arread from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, and from an order denying a motion to set aside the verdict and for a new trial.
    
      Tracy, Boardman & Platt (Walter T. Wood, of counsel), for appellant.
    Friend, House & Grossman (Louis J. Vorhaus and Joseph Fisher, of counsel), for respondents.
   Onun-.A-isr, J.

On the 9th day of January, 1896, three bales of fur, the property of the plaintiffs, were delivered to the Pacific Express Company at Columbus, Mo., for shipment and delivery to the plaintiffs at Hew York city in the due course of business. The three bales came into the possession of the defendant, as the agent of the Pacific Express Company, to complete the transportation thereof, and the defendant company, by some mistake, delivered the bales to others than the plaintiffs. When the error was discovered, part of the goods was returned to the plaintiffs, and for the remainder this suit is brought.

There is no dispute as to the facts, and it will be conceded that no greater obligation could be imposed upon the company completing the transportation of the goods than was assumed by the company receipting therefor. The question for us to consider on appeal is what construction should be put upon the receipt given with regard to fixing or limiting the amount of recovery. The trial judge, in charging the jury, said that a stipulation in a contract of shipment that the value of the property did not exceed fifty dollars where the rates of transportation are based on such stipulation, did not apply in a case of negligence; and the counsel for the appellant cites the case of Belger v. Dinsmore, 51 N. Y. 166, as an authority for a contrary holding. But the cases are not similar. In the case cited, the company was not in any event to demand more than fifty dollars, and the court said: “A party accepting such an instrument as has been already shown, declares his assent by such acceptance to those terms and conditions.” But the case cited has been particularly distinguished from the one at bar in Magnin v. Dinsmore, 56 N. Y. 158, where the court said: “ In Belger v. Dinsmore, 51 N. Y. 166, the contract stipulated for immunity to the carrier unless the loss should be proved to have occurred from the fraud or gross negligence of the express company, and in any event, limited the recovery which might be had to fifty dollars, unless a greater value was specified. Effect was given to it according to its terms. The same decision was made in Steers v. Liverpool, New York & Paris Steamship Co. (Com. of App., January 7, 1874), upon a contract worded, substantially, in the same way. The provision for a limited liability was held to take effect when the loss was through negligence; inasmuch as all losses were excepted unless proved to have been occasioned by negligence.” In the case at bar, the contract provided that said express company shall not be liable for any loss or damage to said property, exceeding the sum of fifty dollars, and the courts in a number of instances have held that the carrier did not, by this attempt to limit his liability, relieve himself from a loss occasioned by his own negligence, nor would that appear to be the full limit intended to be fixed by the company in the present case; for the receipt also contained the words, “ nor in any event shall said company be liable for more than the true value of the property.”

Judged, therefore, by the light of the foregoing authority, it was not error for the court to submit to the jury the question of value, nor that of the plaintiffs’ right to recover more than fifty dollars, in the event that their loss or damage exceeded that sum. Evidence of value was permitted, under a general objection which did not state grounds, and the defendant excepted, but this cannot avail the defendant upon appeal; and again, an objection to the-question as incompetent, and an exception does not give to the-excepting party any broader grounds for argument upon appeal than were fixed by the objection itself; a question, as to what was the-value of the goods at the time of the loss, was clearly not incompetent, but went to the very point, concerning which the inquiry was-made, and the value sought as a matter of materiality upon the-amount which might be recovered. It may have been a difficult matter to prove value, but we are not prepared to say that the evidence adduced was not clearly within authority for its proper admission. It was shown, and indeed conceded, that a portion of the goods had been lost, and the court permitted evidence of the-value of .those goods delivered as fixing relatively the value of those not delivered. They were in one consignment, of one kind, as testified to, and with reason, we think, a party might say what, for instance, was the value of one or two bales as measured by the value of a bale delivered. If one bale were worth $200, then it is not unreasonable to say that two bales were worth $400; or, if that be unfair, then to fix the price or value according to the number of skins received, and apply this measure of value to the number lost. In any event, we do not think that the defendant was prejudiced hy the submission to the jury. The defendant gave no evidence of value whatever, and took no exception to the charge in any form, and must be held to have accepted the words of the trial judge to the jury: “ In the case of negligence on the part of the express company, that part does' not apply,” referring to the defendant’s contention that the company was exempted beyond fifty dollars.

Judgment and order appealed from must be affirmed, with costs.

Fitzsimons, Oh. J., and McCarthy, J., concur.

Judgment and order affirmed, with costs.  