p. 576Samuel Rappaport, Appellant, v. White’s Express Company, Respondent.Headnote
Damages — stipulation as to recovery on three causes of action united in one complaint — when plaintiff entitled to recover upon all — common carrier — contract of carriage -r- limitation of liability — loss of goods through negligence.Where plaintiff in one complaint seeká to recover from a carrier for the loss of goods shipped under three separate and distinct contracts of carriage, and on the trial of the actions the defendant stipulates that if the plaintiff recover in “Action Ho. 1” he shall have judgment in “Action Ho. 2,” and that if judgment be rendered for him in “Action Ho. 1 for $50 in those cases where the shipment is in excess of $50, that judgment shall also go in the second action for $50; in those cases for less than $50 judgment shall go for the plaintiff for the full amount,” the plaintiff having recovered fifty dollárs for the loss of the goods first shipped, is entitled to recover fifty dollars in each of the other causes of action united in the complaint.
The written receipt for each package shipped constituted a special contract- for the transportation of the particular property named, and a limitation as to liability contained therein applied to the specific property receipted for and to no other.
Where such contract of carriage provided that the carrier shall not be “liable for loss or damage to any goods, * * * caused by, the wrongful, willful, negligent or other acts ” of its agents or servants in an amount exceeding fifty dollars unless the true and just value is stated in writing, and an additional amount paid under special agreement made in writing, the plaintiff’s recovery is limited to fifty dollars even though the' goods were lost through the carrier’s negligence, if there was no special agreement for a greater liability.
Appeal by the .plaintiff, Samuel Rappaport, from a judgment of the. Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 30th day of January, 1911.
Samuel J. Rawak, for the appellant.
Abraham B. Keve, for the respondent.
The plaintiff appeals from a judgment in his favor for fifty dollars damages and costs in an action brought against the
p. 577defendant as a common carrier for the negligent loss of plaintiff’s property committed to its care for transportation. The complaint contains three causes of action; the first for the loss of property of the value of fifty-five dollars and sixty-eight cents consigned to Edward Yaas on February 3, 1909; the second for property of the value of sixty-eight • dollars and eighty-nine cents consigned to J. Mintz & Son on February 5 (the proof shows it was on January 29), 1909, and the third for property of the value of one hundred and thirty-seven dollars and eighty-six cents consigned to B. Cardenson & Co. on March 9, 1909. The defendant denied each of the causes of action, and for a separate defense to each alleged that the property was received under a special contract in writing limiting its liability to fifty dollars. It was admitted that the property was received for transportation and that it was not delivered to the consignees. The plaintiff proved the contents of each package and that the value.of each exceeded fifty dollars. •. At the close of plaintiff’s testimony the following stipulation was made: “Stipulated: between the attorneys for the respective parties: That, if judgment is rendered for the plaintiff in action No. 1, that judgment shall go for plaintiff in action No. 2; and that if judgment is rendered for the plaintiff in action No. 1 for $50 in those cases where the shipment is in excess of $50, that .judgment shall also go in the second action for $50; in those cases for less than $50 judgment shall go for the plaintiff for the full amount.” The defendant offered no proof other than the réceipts which limited its liability to fifty dollars in the case of each-shipment. While the terms “Action No. 1,” “Action No. 2 ” are used in the stipulation there was but one action in which three causes of action were alleged, and while defendant does not seem to have sufficient interest to present. its views upon the question involved, it is clear,. I think, that the stipulation referred to the three causes of action. A cause of action was made out on the first cause of action, and it follows that the plaintiff was entitled to fifty dollars on each of the three causes of action. Upon the proof, if the plaintiff was entitled to recover upon one of the. causes of action he was equally "entitled to recover upon the other two, the
p. 578proof being the same as to each. Each receipt constituted a special contract as to the transportation of the-particular property named, and was a limitation as to liability for the property receipted for and no other.
Plaintiff contends that he is entitled to recover for the .full value of the'-property, notwithstanding the special contracts, upon the ground that defendant’s failure to explain the non-delivery of the packages was negligence which avoided the special contracts. The receipts contain the following: “Nor shall they be liable for loss or damage to any goods, wares, merchandise or packages caused by the wrongful, willful, negligent or other acts of the agents or servants of White’s Express Company, in an amount exceeding Fifty ($50) Dollars unless the just and true value is ■ stated in writing and an additional amount paid under special agreement made in writing at the office of the company.”. It is not shown that there was any such statement' or agreement, and I think the defendant’s liability was limited under this provision, even as. a common carrier, as against the negligence of its employees.
The judgment of the Municipal Court must be reversed and a new trial ordered, costs to abide the event.
Jenks, P. J., Thomas, Carr and Woodward, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.