APPEAL by the defendant, James F. Fargo, as treasurer, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of
Dutchess on the 22d day of September, 1910, upon the verdict of a jury, and also from an order entered in said clerk's office on the 17th day of May, 1910, denying the defendant's motions to set aside the verdict and for a new trial and to reduce the verdict.
Frank Hasbrouck, for the appellant.
Willet E. Hoysradt, for the respondent.
About three years prior to April, 1908, the defendant company issued to plaintiff's husband, who conducts a clothing store in the city of Poughkeepsie, a book of blank express receipts, on the inside of the first cover of which was a printed statement limiting the defendant's liability on shipments to be receipted for in such book to fifty dollars, unless the just and true value was stated in the receipt and an extra charge paid based on such higher value. Each page of the book was headed 'American Express Company. Received of ......... The Property hereinafter described, to be forwarded subject to the terms and conditions of the Company's regular form of receipt printed on inside front cover of this book.' This heading was followed by ruled spaces in which were to be given the date of shipment; description and contents; value; addressed to; destination, and the name of the employee receipting for the property. The book had been in use down to April 13, 1908, and for some time prior to that date had been without covers, the same having been worn out and destroyed. On April 13, 1908, the plaintiff gave several of her dresses, together with lace and other materials of the value of one hundred and ninety-six dollars and fifty cents, to one Alexander, a clerk in her husband's employ, with directions to ship them by express to her dressmakers in New York city for alterations. Alexander inclosed the package in a box which he addressed to 'L. & M. Rundspaden, 108 E. 71st St., New York City,' and under the proper headings in the express receipt book wrote the date and the other information required, and delivered the package and book to one Carroll, an employee at the defendant's office, who receipted in said book under the proper heading for the same and received from Alexander the charges. The value of the package was not asked or given.
The package was not delivered, and plaintiff commenced this action to recover its full value. The action has been three times tried. Upon the first trial the jury disagreed; upon the second trial the court directed a verdict in favor of the plaintiff for the full amount claimed, which was later vacated and set aside. On the last trial the court submitted to the jury the question of the value of the lost property only, directing them to return a verdict for the plaintiff for the amount they should find. From the order denying the motion to reduce the verdict to fifty dollars, or vacate and set it aside, as well as from the judgment, the defendant appeals.
Defendant's contention is that the plaintiff is bound by the limitation contained in the printed statement on the first page of the receipt book when it was issued to her husband, and is limited in her recovery to fifty dollars as therein provided. The plaintiff in this connection cites section 38 of the Public Service Commissions Law, [a1] providing 'No contract, stipulation or clause in any receipt or bill of lading shall exempt or be held to exempt any common carrier, railroad corporation or street railroad corporation from any liability for loss, damage or injury caused by it to freight or property from the time of its delivery for transportation until the same shall have been received at its destination and a reasonable time shall have elapsed after notice to consignee of such arrival to permit of the removal of such freight or property.' By section 2 of the same law the description of 'common carrier' includes express companies.
The learned court in denying defendant's motion for a new trial says, among other things, that the only question presented is whether or not the statute makes the defendant absolutely liable for the full value of the goods lost without regard to the limitation of its liability to fifty dollars. I think the court was in error in its conclusion that the only question presented is controlled by the provisions of the Public Service Commissions Law, and that the judgment and order must be affirmed without reference to the provisions of that statute. The evidence fails to support the defendant's contention that there
was any contract by which plaintiff's recovery in the event of the loss of her property was limited to fifty dollars. The common-law liability of the defendant was for the full value of the goods, and that is the measure of plaintiff's recovery unless there was a special contract in consequence of, and as the result of which such liability was limited. The plaintiff is not chargeable with knowledge of the limitation contained on the cover of a book issued years before her shipment and in the absence of proof of actual knowledge, and there is no pretense that she had such knowledge. Her agent to whom she intrusted the package for delivery to an express company had no knowledge of the printed statement. He did not give the plaintiff the receipt he received from the defendant or call her attention to it. The cover on which the limitation was printed was not on the book when the defendant receipted therein for the ...