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Herzig v. New York Cold Storage Co.

115 A.D. 40 Court Second Department, Decision date 1906-09-28 English

Delivered by Woodward, J. •:

Contents

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p. 40
Simon Herzig, Sole Surviving Partner of the Firm of Herzig Brothers, Respondent, v. New York Cold Storage Company, a Corporation Organized under the Laws of the State of New Jersey, Appellant.
Second Department,
September 28, 1906.

Headnote

Bailment — skins damaged in' cold storage — duty of bailee — when contract does not exempt bailee from liability for negligence.
Where muskrat skins were delivered to a cold storage company in good condition, under an agreement, for the usual compensation, that they would be preserved in such condition, but when withdrawn are found' to be damaged, the bailee is liable, unless it can show that the’ damage arose from a cause for which it was not responsible.
Reasonable care by a bailee to preserve goods intrusted to it for hire is an essential element of a contract of bailment, and any exemption from such dirty must appear in the contract in express and unmistakable language.
Hence, a provision that “ perishable goods are received only at the owner’s risk” does not relieve the bailee from liability for negligence.
Appeal by the defendant, the New York Cold Storage Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the -office of tire clerk of the county of Queens on the 4th day of December, 1905, upon the verdict of a jury for
p. 41
$3,213.71, and also from an order entered in said clerk’s office on the 28th day of November, 1905, denying the defendant’s motion for a new trial made upon the minutes.
George G. De Lacy, for the appellant.
Abram I. Elkus [Joseph M. Proskauer with him on the brief], for the respondent.

The objections urged to. the judgment in this case seem to us fanciful rather than real, the case having been apparently tried with care and with a conscientious endeavor to get at the facts. The plaintiff, as surviving partner of the firm of Herzig Brothers, brings this action to recover the damages alleged to have been sustained by reason of the negligence of the defendant in caring for certain muskrat skins, which were intrusted to it for cold storage. The evidence is sufficient to justify a jury in finding .that,in the spring and early summer of 1903 the plaintiff’s firm delivered several bales of muskrat skins to the defendant in good condition, and that the latter undertook to preserve such skins in their then condition, for which it was to receive the fair and usual compensation ; that when these skins were withdrawn from the cold storage warehouse they were found to be in a badly damaged condition, necessitating'much extra labor to save them from entire destruction, and the verdict is for the damages shown to have been sustained. Under this state of facts the defendant was undoubtedly liable to the plaintiff (Wilson v. Linde Co., 47 App. Div. 327 ; Sutherland v. Albany Cold Storage & W. Co., 171 N. Y. 269 ), unless the defendant was prepared to show that the damages resulted from causes for .which it was not responsible, and the evidence in this case does not meet this requirement.

It is urged that the warehouse receipt, which provided that “ perishable goods are received only at the owner’s risk,” limits and measures the defendant’s liability; but w-e are clearly of opinion that the law is established in this State that such a provision does not exempt the defendant from liability for its own negligence. It is not necessary here to say just how far such a provision would operate to limit liability, but the cases are uniform in holding that,

p. 42
in the absence of express and unequivocal.language extending to negligence, such a clause does not exempt a bailee for hire from discharging the duty he owes to use reasonable care. That is the essential element of the contract, that the bailee will use reasonable care to preserve the goods intrusted to his care, and if he proposes to be exempt from the discharge of this part of the obligation, it must be done in language which cannot be mistaken, and which gives full notice of the exception to the natural import of the contract. It cannot be presumed that prudent business men would intrust valuable property to the keeping of men or corporations and agree to pay them for keeping the same, at the same time exempting them from the obligation of using reasonable care, and unless the language is express and certain; the courts will not piermit of such an abuse.

We have examined the exceptions urged, biit do not find that the defendant has been prejudiced by any of the rulings of the court.

The judgment and order appealed from should be affirmed, with costs.

Jenks, Gaynor and Miller, JJ., concurred.

Judgment and order affirmed, with costs.

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