Opinion
March 11, 1910.
William Mann, for the appellant.
Russell H. Robbins, for the respondent.
On the 4th day of September, 1906, the plaintiff delivered a carload of household goods and furniture to the appellant at Brookline, Mass., to be shipped to New York city. The consignee was notified of the arrival of the goods at their destination on the eleventh day of the same month, and six days thereafter they were taken from the car and stored by the defendant Union Transfer and Storage Company until the eleventh day of October, when they were delivered at the plaintiff's new residence, No. 15 West Eighth street, borough of Manhattan, New York, in a damaged condition. The action was brought against both companies to recover the damages thus sustained by plaintiff upon the theory that they were both negligent in transporting and handling the property. The damages to the goods were shown to be $893. The jury, under a charge to which exception in this record was not taken, was permitted to apportion the damages between the respective companies, holding each responsible for the damages caused by it, and they found a verdict in favor of the plaintiff against the appellant for $600, and against the Union Transfer and Storage Company for $293, the remainder of the damages.
No appeal was taken by the storage company, and the question as to whether the evidence afforded a proper basis for this apportionment of the damages between the two companies is not presented. The learned counsel for the appellant presents two points only for consideration on the appeal. He contends that the plaintiff should have shown the weight of the damaged goods and should have been limited to a recovery at the rate of five dollars per 100 pounds on such weight, and also that the verdict, in so far as the appellant was found guilty of negligence, was against the weight of the evidence.
The appellant pleaded and introduced in evidence the bill of lading which was delivered to the plaintiff's agents who shipped the goods for her and surrendered to the carrier on the delivery of the goods to the storage company at New York. The appellant relies upon a condition of the bill of lading limiting its liability. On the face of the bill of lading, in the blank space under the heading "Description of Articles," under which was written "H.H Goods," meaning household goods, was stamped in red ink the following: "The consignor of this property has the option of shipping same at a higher rate without limitation as to value in case of loss or damage from causes which would make the carrier liable, but agrees to the specified valuation named in case of loss or damage from causes which would make the carrier liable, because of the lower rate thereby accorded for transportation," and thereunder, on a dotted blank line with the word "Shipper" stamped beneath it, the plaintiff's agents, who packed and shipped the goods for her, signed their firm name as the shipper. Underneath the signature and in the same blank space was stamped in red, but in larger type, the following: "Valuation restricted to $5.00 per 100 lbs." The bill of lading further showed that the freight charges were $34.80 and that the weight of the goods was 12,000 pounds.
The learned counsel for the appellant contends that this special contract did not constitute a gross valuation of the goods at $600, but that by it the cargo of household goods and furniture was, in effect, divided into 120 parts and a valuation of five dollars placed upon each. Neither the contract itself nor the nature and condition of the goods affords a basis for that contention. There were more than 120 items of property and it is improbable that they could have been separated into 120 parts of equal weight. There was nothing to identify any particular hundredweight. It would, therefore, be impossible to know in advance, as might be known in the case of the shipment of animals or sealed packages or goods of a uniform quality or value, what articles of the household goods and furniture were comprised in the separate allotment into parts of the weight of 100 pounds each. The shipper, therefore, on that view of the contract would not be entitled in any contingency to recover damages to the full extent of five dollars per 100 pounds unless all of the goods were damaged or destroyed. The construction claimed in behalf of the appellant would require that the damaged or destroyed property be considered separately and that the recovery be limited to five dollars per hundredweight of that part of the shipment. It might be claimed in behalf of the plaintiff with equal force that she should be at liberty to pick out an article damaged to the extent of five dollars and have it weighed off with other articles not damaged and ascertain the total liability of the carrier. Moreover, there is no other valuation stated in the bill of lading, and only one weight, viz., the gross weight, is given. There is no evidence that the shipment was subdivided and then separately weighed. The reasonable construction of the contract is, therefore, that the shipper accepted for the plaintiff a low freight rate and in consideration therefor agreed upon this valuation as a means of arriving at a gross valuation. It is to be borne in mind that the bill of lading was prepared by the railroad company and that it tends to limit its common-law liability and, therefore, it is to be strictly construed against it. ( Mynard v. Syracuse, etc., R.R. Co., 71 N.Y. 180; Hoye v. Pennsylvania R.R. Co., 191 id. 101; Galloway v. Erie R.R. Co., 116 App. Div. 777; affd., 192 N.Y. 545; Jennings v. Grand Trunk R. Co., 127 id. 438.) It evidently was more convenient for the agents of the common carrier to use this stamp which would print on the bill of lading that the valuation was restricted to five dollars per 100 pounds than to figure out the total valuation at that rate, based on the weight, and write the same in.
We are of opinion that the stamp as used was a mere substitute for writing in the total valuation as thus computed and that the contract is to be construed as if the bill of lading had stamped on it instead of the words "Valuation restricted to $5.00 per 100 lbs." the words "Valuation restricted to $5.00," which in each instance would have required a computation, and since the total valuations would vary would also doubtless require that the valuation be written in, thus requiring more work and consuming more time on the part of the agents of the carrier. Another possible reason for the use of the stamp, estimating the value by the 100 pounds weight, is that the column on the bill of lading in which the weight is written is headed "Weight. Subject to correction," and since the weight had only apparently been estimated and might be increased or reduced, it may have been deemed more practicable to fix the valuation at so much per 100 pounds. That, however, is no indication of an intent to subdivide such a cargo into 100 pound lots, where it was not so divided when delivered for shipment. We think that it was the intention of the carrier to afford the shipper the benefit of a reduced rate on condition that a special valuation of the cargo be agreed upon by which the liability of the carrier would be limited. It has long been the established rule that it is competent for a common carrier to make such a contract with the shipper. ( Hart v. Pennsylvania R.R. Co., 112 U.S. 331; Zimmer v. N.Y.C. H.R.R.R. Co., 137 N.Y. 460; Tewes v. North German Lloyd S.S. Co., 186 id. 151; Rosenthal v. Weir, 170 id. 148; Greenwald v. Weir, 130 App. Div. 696.) The facts clearly distinguish the case at bar from those in which the contract of shipment has been construed as showing an agreement that the valuation of goods consigned should be deemed both for the purpose of fixing the carrying charges and limiting the liability to an amount specified in the bill of lading for each separate case or package, of which Brown v. Cunard S.S. Co. ( 147 Mass. 58) and Pearse v. Quebec S.S. Co. (24 Fed. Rep. 285) are examples, and that the like valuation of animals should be deemed for like purposes a given price per head, of which Hart v. Pennsylvania R.R. Co., Zimmer v. N.Y.C. H.R.R.R. Co. ( supra), Winslow Bros. Co. v. Atlantic Coast Line R.R. Co. ( 79 S.C. 344), Starnes v. Railroad ( 91 Tenn. 516) and Nelson v. Great Northern R. Co. ( 28 Mont. 297) are instances.
We are of opinion, therefore, that it was not incumbent on the plaintiff to show the weight of the goods damaged or destroyed, and that she was not limited in her right to recover to five dollars per hundredweight of that part of the goods weighed separately. It is unnecessary, therefore, to decide whether if the bill of lading required the construction for which the appellant contends it would be valid or whether it would be void as contrary to public policy, and, therefore, we express no opinion on that question.
We are also of opinion that the evidence was sufficient to sustain the verdict on the question of the negligence of the appellant. Evidence was adduced in behalf of the plaintiff tending to show that the goods were properly prepared for shipment and properly loaded into the car, and that appellant's agent inspected the manner in which they were loaded and accepted them for shipment, and that they were taken from the car at their destination in a seriously damaged condition, which presumptively would not have occurred if they had been transported and stored with due care. ( Hoffberg v. Bumford, 88 N.Y. Supp. 940.)
It follows, therefore, that the determination of the Appellate Term should be affirmed, with costs.
INGRAHAM, P.J., CLARKE, SCOTT and MILLER, JJ., concurred.
Determination affirmed, with costs.