Opinion
April Term, 1900.
Everett P. Wheeler, for the appellant.
Alexander S. Bacon, for the respondent.
It was determined upon the former appeal in this case ( 37 App. Div. 553) that at the close of the plaintiff's case sufficient had been shown to require the learned justice to submit to the jury the question whether the defendant had converted the box of photographs or whether its excuse for not delivering it to the plaintiff upon his demand was a sufficient one. It was also determined, what was very clear from the pleadings themselves, that the action was not brought against the defendant as a common carrier but purely for the conversion by it of the box and its contents.
On this trial the defendant gave testimony tending to show that the marks on the box were such that it had no reason to suppose that it contained anything belonging to the plaintiff's assignor, and, therefore, claimed that it was justified in not delivering it upon demand, and the defendant's counsel sought by various requests to charge to obtain from the court a ruling that such was the case. For instance, the court was asked to charge that if the refusal of the defendant to deliver the box to Mr. Massey was due to the fact that he had delivered it to the defendant without any sufficient mark or direction upon the same, and that the defendant used reasonable diligence to find it when its attention was called to the fact that it was missing, then the plaintiff could not recover. The court was also requested to charge that if the defendant was misled by the marks upon the box when it was received and did not know that it was the property of Mr. Massey, and was in consequence thereof misled into placing it in its storeroom and afterwards in its locker, instead of in the baggage room, and the failure to deliver it to the plaintiff or to the plaintiff's assignor was due to such circumstances, and not to any design on the part of the defendant to appropriate it to its own use, then the plaintiff could not recover. The court declined to make either charge as requested, but instructed the jury that all those matters were to be taken into consideration with all the other circumstances in the case. When it is considered that the court had directed the jury that it was for them to say whether the conduct of the defendant or its servants by which the box became mixed up with a lot of other boxes containing signals was, under all the circumstances disclosed, excusable or justifiable, so as not to make the defendant liable for its refusal to deliver it upon demand, and that if it was, then the defendant was entitled to a verdict, it will be seen that the jury were sufficiently instructed in that respect. As was said in the opinion of the court upon the former trial, "upon the admission of a demand and refusal with evidence tending to show that at the time of the demand the box was in the defendant's possession, and that the defendant had it in its power to give it up, the plaintiff was entitled to rest. * * * The defendant was then authorized to negative or rebut the presumption of conversion arising therefrom." The conversion did not necessarily consist in the refusal to deliver, although that was proof of it. It may have arisen from such a disposal of the box by the defendant's servants as to put it out of the power of the defendant to produce it when demanded, and if such did occur it was for the jury to say whether the plaintiff was entitled to recover. So although the facts in the requests above alluded to were proper for the consideration of the jury they were not conclusive upon the question of conversion, and the court took the right course in presenting them to the jury.
The court was also asked to charge that the defendant was not liable as a common carrier, and that if the jury found that the plaintiff's assignor at the time of loading the box of negatives as freight or baggage on the defendant's steamship did not give to the master, clerk, agent or owner of the vessel receiving the same a written notice of the true character and value thereof, and did not have the same entered on a bill of lading, then that the defendant was not liable as a carrier of the property. This request was properly refused. There was no claim on the part of the plaintiff that the defendant was liable as a carrier. As was said by the court on the former appeal, "the action is not against the defendant as a common carrier upon its contract, nor is it for negligence or breach of duty." It was a simple action for conversion, and the defendant had no right to inject into the case any suggestion that any other claim was made against it than such as might arise against a person who had converted property. The court was, therefore, justified in refusing to charge upon that point as requested. It may be said that that question having been suggested by the defendant's counsel the jury might possibly have taken into consideration the fact that the defendant was a common carrier. The answer is that if counsel take upon themselves to suggest a reason why judgment might be given against his client, which is not relied upon by the opposing party, he does so at his own risk and he cannot obtain from the court a ruling that a fact that his adversary does not claim is not to be taken into consideration.
The only remaining question is that of damages. It is suggested in the first place that by the terms of the contract contained in the passage ticket the plaintiff could, under no circumstances, recover a greater sum than ten pounds. But the plaintiff's assignor was not bound by anything contained in the ticket unless he saw it and had an opportunity to read it. If the ticket itself was never given to him, but was retained in the possession of the defendant's agent, it never became operative as a contract to limit the extent of the defendant's liability. Whether it was delivered to Mr. Massey was a seriously disputed question of fact. It was submitted to the jury, who found for the plaintiff in that respect, and, therefore, no question arises here as to effect of the limitation contained in that document. The plaintiff, therefore, was entitled to recover as damages of the conversion the actual value of the contents of the box. That those articles had no market value was quite clearly shown, and when that appeared the plaintiff was at liberty to give such other evidence as would assist the jury to assess the actual value. That was to be done by showing the nature of the property; the cost of obtaining the photographs; the purpose for which they were procured, and the difficulty of replacing them. The jury were also entitled to take into consideration the value of the property to the plaintiff. ( Stickney v. Allen, 10 Gray, 352; Starkey v. Kelly, 50 N.Y. 676.)
The fact that the negatives were not good ones and were not well taken was, of course, to be considered, but in addition to that the jury might also consider that when one has gone a long way to obtain photographs of the scenery of a foreign land which is difficult to reach, or where the photograph is of some incident which is not likely to be repeated, even a poor representation may be of considerable value if a picture can be printed from it, because, as far as it goes, it is a correct representation of what occurred. All these things were to be considered by the jury. We cannot say that the amount of the verdict which they rendered was improper. The judgment and the order appealed from should, therefore, be affirmed, with costs.
BARRETT, PATTERSON and MCLAUGHLIN, JJ., concurred; VAN BRUNT, P.J., concurred in result.
Judgment and order affirmed, with costs.