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Greenwald v. Weir

Supreme Court of New York, Appellate Division

March 5, 1909

GREENWALD ET AL.
v.
WEIR.

Appeal from Appellate Term.

Action by Isaac Greenwald and others against Levi C. Weir, as president of the Adams Express Company. The Appellate Term ( 59 Misc. 431, 111 N.Y.Supp. 235) reversed a judgment for plaintiffs for an amount less than that claimed, and ordered a new trial, and defendant appeals. Reversed, and judgment of trial court affirmed.

[115 N.Y.S. 312] Walker D. Hines (Carl A. De Gersdorff and Edward V. Conwell, on the brief), for appellant.

Samuel J. Rawak, for respondents.

Argued before INGRAHAM, McLAUGHLIN, HOUGHTON, CLARKE, and SCOTT, JJ.

SCOTT, J.

This is an action against an express company to recover the alleged actual value of merchandise shipped by plaintiffs upon a receipt in which was stated an agreed valuation of $50. The plaintiffs, at their place of business in the city of New York, delivered to [115 N.Y.S. 313] defendant a package of dry goods to be carried to Waukegan, Ill. The plaintiffs had in their possession, and had been in the habit of using for some months, a book, issued by defendant, containing printed forms of express receipts. They had been in the habit of using similar forms for six years. The receipt was filled out by plaintiffs' shipping clerk, and delivered to defendant's driver, who signed it and left it with plaintiffs, and took away the package mentioned therein. The plaintiffs made no statement as to the value of the goods when shipping them, and accepted the receipt without objection. The package of goods was not delivered to the consignees, and its loss was not accounted for. The receipt contained the following clause, clearly and plainly printed thereon:

" In consideration of the rate charged for carrying said property, which is regulated by the value thereof and is based upon a valuation of not exceeding $50 unless a greater value is declared, the shipper agrees that the value of said property is not more than $50, unless a greater value is stated herein, and that the company shall not be liable in any event for more than the value so stated, nor for more than $50 if no value is stated herein."

At the trial plaintiffs proved that the value of the goods was $235, and sought to recover judgment for that amount. The Municipal Court awarded judgment for $50, the agreed value as stated in the receipt. The Appellate Term, by a divided court, has reversed the judgment, holding that, notwithstanding the stipulation as to the value contained in the receipt, the plaintiffs are entitled to recover the actual value of the goods. The defendant appeals.

It is conceded that but for the federal statute hereinafter quoted, the judgment of the Municipal Court was in accordance with the settled law of this state. We have recently had occasion to again consider that question, and it is unnecessary to dwell upon it here. The rule is that it is competent for a carrier and a shipper to agree, as one of the terms of the contract of shipment, upon the value of the goods shipped, and that when such an agreement has been made the shipper is estopped from claiming, in case of loss, that the goods were of greater value than the sum agreed upon. Furthermore, if the written receipt, which constitutes the contract of shipment, contains a clause by which the shipper expressly agrees that the value of the property is not more than a stated sum unless a different value is stated in the receipt, and no greater value is so stated, the shipper is held to have stipulated and represented, as one of the terms of his contract with the carrier, that the goods are not of a greater value than the sum stated, and will be estopped from afterwards claiming, in case of loss, that the value was actually greater. The exception to the rule arising in the so-called " baggage cases" is not pertinent to the present discussion.

The plaintiffs claim, however, that as to contracts involving interstate carriage the foregoing rule has been abrogated by the amendment to section 20 of the interstate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 386 [U. S. Comp. St. 1901, p. 3169]), passed June 29, 1906 (Act June 29, 1906, c. 3591, § 7, 34 Stat. 593 [U. S. Comp. St. Supp. 1907, p. 906]), which reads as follows:

[115 N.Y.S. 314] " That any common carrier, railroad or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law. That the common carrier, railroad or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad or transportation company on whose line the loss, damage or injury shall have been sustained, the amount of such loss, damage, or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof."

It will be seen at a glance that this statute has changed the common-lawww rule, as it has heretofore been applied in this and many other states, respecting the nonliability of the first carrier for losses occurring on the line of connecting carriers. It has heretofore been held at common law, and frequently stipulated by express provisions of shipping contracts, that the liability of each carrier is confined to losses occurring on his own line. This rule, in cases of interstate carriage, has now been abrogated, and hereafter the initial carrier remains liable to the shipper for losses occurring on the lines of connecting carriers, as well as on his own, having a right of recovery over against the connecting carrier if the loss has occurred on the line of the latter. The defendant's contention is that this is the whole extent to which the statute has abrogated or changed the existing rule. The plaintiffs insist that the statute goes further. The words upon which plaintiffs rely are that any common carrier-

" shall be liable to the lawful holder thereof for any loss, damage or injury to such property (the merchandise shipped) caused by it, *** and no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed."

What the statute forbids is the making of a contract, receipt, rule, or regulation exempting a carrier from the liability imposed by the statute. There is but one liability which can properly be said to be imposed by the statute, and that is the liability of the initial carrier for a loss occurring on the line of a connecting carrier. That is a new liability created and imposed by the statute. The liability of a carrier for a loss upon its own line is not new, and is not created or imposed by the statute, but existed before the statute was passed. The statute is completely satisfied, therefore, by construing it as creating and imposing on the initial carrier a new liability, and forbidding him from exempting himself, by stipulation or agreement, from that new liability. What the statute forbids is the use of any device whereby the carrier undertakes to " exempt" himself from the newly imposed liability. The use of the word " exempt" is appropriate if it was the intention of the Congress to prevent ...


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