
    John G. Meister, Respondent, v. William H. Woolverton, as President of the New York Transfer Company, Appellant.
    
      Carrier—liability for loss of baggage — special contract limiting liability — Public Service Commissions Law.
    
    Appeal from an order of the Appellate Term affirming a judgment of the City Court, entered upon the verdict of jury.
    Determination, order and judgment affirmed, with costs, on the authority of Morgan v. Woolverton (136 App. Div. 351). Present—Ingraham, P. J., McLaughlin, Laughlin, Miller and Dowling, JJ.
   Ingraham, P. J. (concurring):

The plaintiff’s assignor was a passenger on a train of the Pennsylvania Railroad Company. She arrived in New York on June 30, 1908. On July 2, 1908, she delivered a check given to her by the railroad company for a trunk which had been transported with her to the city of New York. It would appear that the trunk had been delivered by the railroad company to the defendant, but was subsequently lost and was never delivered. The claim against the defendant was assigned to the plaintiff who brought an action to recover the value of the trunk. The plaintiff recovered a judgment for §982.42 as the value of the trunk and from that judgment the defendant has appealed. This check was delivered to the defendant at the office of the defendant in the city of New York. Defendant’s representative was then informed that the check represented a trunk which had arrived from North Carolina at New York, and'he wanted it sent to Far Rockaway. No statement was made to the agent of the defendant as to the value of the contents of the trunk, nor was information on that subject asked by the defendant’s agent, and the defendant’s agent made the customary charge for the delivery of the trunk according to the instructions that he had received. The question presented in this case arises under the Public Service Commissions Law (Laws of 1907, chap. 429). Section 2 of that chapter proyides that the term “common .carrier” shall include express companies ” and all persons and associations of persons, whether incorporated or not, operating, such agencies for public use in the conveyance of persons or property within this State. Section 38 requires every common carrier to issue a receipt or bill of lading for all property delivered to it for transportation; and further provides that every common carrier and railroad corporation shall be liable for all loss, damage or injury to property carried as baggage up to the full value and regardless of the character thereof; but the value in excess of $150 shall be stated upon delivery to the carrier, and a written receipt stating the value shall be issued by the carrier who may make a reasonable charge for the assumption of such liability in excess of $150 and for the carriage of baggage exceeding 150 pounds in weight upon a single ticket. The first question presented is whether or not this trunk was properly carried as baggage. If it was, then by the express provisions of the statute the defendant was liable for the full value of the trunk unless relieved from liability by the subsequent provisions of the section. The application of this section was intended to be limited to the baggage of passengers as distinct from general merchandise delivered to a common carrier for transportation. It was the nature of the article that was to determine the liability of the carrier. A trunk shipped by an express company as merchandise and not as the personal baggage of a traveler would not be within the section; but, it seems to me, making the section applicable to an express company which does not carry passengers, evinces a clear intention that the carrying of a passenger at the same time that the baggage was transported was not necessary to impose upon the express company the liability imposed by the section. It was necessary that the article carried should be the personal baggage of a traveler, and the article to come within the section must be such personal baggage. When the check of a passenger upon the Pennsylvania Railroad was delivered to the defendant, an express company, with a statement that it represented the baggage of a passenger that had been transported by the railroad company, notice was given that this trunk was baggage of a passenger, and when the express company assumed to transport that baggage, represented by the check delivered to it, it undertook to carry the trunk as baggage and became liable for the full value. The representative of the passenger who actually delivered the trunk to the defendant did not state to the carrier the value of the trunk, and the defendant claims that under the provisions of this section, the value not having been stated, the recovery must be limited to the sum of $150; but I do not find anything in the section that justifies such a limitation. The section provides that the value shall be stated upon delivery of the baggage to the carrier, and authorizes the carrier to make an additional charge for the assumption of any liability over and above $150. Undoubtedly if the carrier had asked the person delivering the check the value of the trunk and such value had been stated to be $150 the plaintiff would be estopped from disputing that $150-was the value of the trunk and thus precluded from recovering a greater sum. But this provision in relation to a statement of the value of the baggage to be transported.was for the benefit of the company to entitle it to charge an additional sum for the assumption of the increased liabilfiy. If the defendant accepted the trunk for transportation without any inquiry as to value, or any demand for an additional charge on account of the excess, it cannot claim that either the plaintiff was estopped from claiming the full value of the trunk, or that a* penalty should be imposed upon the plaintiff-of a loss of the amount exceeding $150 for a failure to state the value. Accepting the trunk for transportation without inquiry as to value, fixing its own charge for transportation without such inquiry, it assumed the obligation imposed upon it by the statute which was a liability for the full value. If it had been intended to limit its liability to the value of $150, where the value was not stated by the person delivering the trunk for transportation, it seems to me that that intention would have been expressed. The carrier has the option to inquire as to the value and thus bring itself within the limitation provided for by the section in question.’ It is not, however, bound to make such inquiry, but could accept the trunk for transportation, subject to the full liability clause, and waive the provision which authorized an extra charge if it assumed a liability for a sum above $150, and its failure to make such additional charges was a waiver of. this limited liability and an acceptance of the unlimited liability prescribed by the section. The further provision of the section limiting a liability for baggage exceeding 150' pounds in weight upon a single ticket would clearly apply only to baggage carried with a passenger by a common carrier of passengers, but would have no application where the carrier undertook to carry property as baggage without also transporting the passenger. I think that the defendant was liable and that the determination should be affirmed, with costs.  