APPEAL by the defendant, The New York Central and Hudson River Railroad Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of March, 1911, sustaining the plaintiff's demurrer to a partial defense.
William Mann, for the appellant.
Clifton P. Williamson [Phenix Ingraham, attorney], for the respondent.
For the purpose of testing the sufficiency of the partial defense demurred to, it is to be assumed that the defendant undertook for the regular fare to safely transport the plaintiff and his trunk, containing wearing apparel and other personal effects necessary for his use and comfort on his journey, and that such baggage, of the value of $550, was lost through its negligence. The partial defense is that the defendant's tariff published, posted and filed with the Public Service Commission, provided for the free transportation of a passenger's baggage not exceeding $150 in value, and for a charge in case it exceeded that value, and that the plaintiff did not state the value of said trunk and contents, or pay the extra charge. A copy of the said published tariff was annexed to the answer. It was addressed 'To Agents,' and contained this provision: 'Please understand you are not to inquire the value of baggage from the owners and it is only in those cases where owners voluntarily state the value of their baggage at time of checking that charge is to be made if any one lot belonging to a single passenger exceeds $150.00.'
The defendant claims a limitation of liability to the sum of $150 perforce of a provision of section 38 of the Public Service Commissions Law (Laws of 1907, chap. 429; now Consol. Laws, chap. 48; Laws of 1910, chap. 480), which, as far as material here, provides: 'Every common carrier and railroad corporation shall be liable for loss, damage and injury to property carried as baggage up to the full value and regardless of the character thereof, but the value in excess of one hundred and fifty dollars 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 one hundred and fifty dollars and for the carriage of baggage exceeding one hundred and fifty pounds in weight upon a single ticket. 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.'
The appellant contends that the said provision is to be construed to mean that the carrier shall be liable for the value of the baggage in excess of $150 only in the event that the passenger declares such excess value. At common law the carrier's liability as insurer for articles carried as baggage was limited to those properly constituting baggage ( Dexter v. Syracuse, Binghamton & N.Y. R. R. Co., 42 N.Y. 326; Merrill v. Grinnell, 30 id. 594), but it was liable as bailee for negligence even though the relation of passenger and carrier did not exist. (Fairfax v. N.Y. C. & H. R. R. R. Co., 67 N.Y. 11.) It is plain that the primary purpose of the statute was to enlarge the common-law liability as insurer, and to make the carrier liable as such for the full value of the property carried as baggage irrespective of its character. It is equally plain from the last sentence of the provision above quoted that it was not intended to limit the carrier's liability at common law, for the passenger's right of action under existing law was expressly preserved. Upon the assumed facts in this case the defendant was liable at common law as insurer, because the property which it undertook to transport properly constituted baggage. It was also liable as bailee irrespective of the nature of the property, for the loss occurred through its negligence.
But it is contended that, while intending to enlarge the common-law liability of the carrier as such, the Legislature in fact limited its liability, both as carrier and as bailee, by providing that the value in excess of $150 should be stated, and that the carrier might make a reasonable charge for the assumption of liability in excess of such sum. It is to be noted, first, that the language is 'for the assumption of such liability,' i. e., the liability as carrier. The limitation then, if one was imposed by the act, applies only to 'such liability,' not to the defendant's liability as bailee. Moreover, the purpose of the phrase, relied upon by the appellant, was to give the carrier the right to make a reasonable charge for the liability thus imposed upon it in excess of $150. The word 'but' ordinarily indicates an intention to limit or restrict the effect of what precedes it, and it may be given that effect by qualifying the extension of the liability of a carrier as insurer to property carried as baggage, even though in fact it be merchandise. The qualifying clause was considered by Presiding Justice INGRAHAM in Meister v. Woolverton (140 A.D. 926), and we agree with what he there said to the effect that it was intended for the carrier's benefit and could be waived by it, and that if it had been intended to limit the liability to $150 unless the excess value is stated, that intention would not have been left to inference.
But even assuming that the requirement that the excess value should be stated to enable the carrier to charge for the assumption of such extended liability was intended to limit the carrier's common-law liability, it is plain that that requirement, being intended for its benefit, could be waived by it. In this case we have not only a failure to inquire but explicit instructions to agents not to inquire. Surely the carrier cannot complain for not being informed of what it did not wish to know. It is said that sections 33 and 34 of the said act prohibit the carrier and the passenger from entering into a contract for a different rate than the published tariff. That may be assumed, but there is no question in this case of any contract in violation of the statute or of any act on the part of the plaintiff 'by means of false billing, false classification, false weight or weighing, or false report of weight, or by any other
device or means' to obtain transportation at less than the published rates. According to the published tariff a charge for excess baggage was to be imposed only in case the owner voluntarily declared the amount of the excess. Even if the plaintiff was chargeable with notice of the defendant's tariff, which we are far from deciding, he was given the option of having his baggage carried without charge unless he wanted ...