Fenderson v. Lehigh Valley Railroad — 163 A.D. 107

Majority

p. 107

George L. Fenderson, Respondent, v. Lehigh Valley Railroad Company, Appellant.

Third Department,

July 1, 1914.

Headnote

Carriers — Personal Property Law, section 209, relieving carrier from liability, by inserting in bill of lading the words “shipper’s load and count ” —insertion of letters “S. L. & C.” insufficient.

The mere insertion in a bill of lading of the letters “ S. L. & C.” is not a compliance with the provisions of section 209 of the Personal Property Law, providing that a carrier may, by inserting in the bill of lading the words “ shipper’s load and count,” or other words of like purport, reheve itself from liability for damages caused by improper loading or by the non-receipt, or by misdescription of the goods, especially where a course of dealing is not shown between the parties where such initials had ever been used to the knowledge of both of them.

Appeal by the defendant, Lehigh Valley Railroad Company, from a judgment of the County Court of Tioga county, entered in the office of the clerk of said county on the 11th day of November, 1913, affirming a judgment of a Justice’s Court.

Cobb, Cobb, McAllister & Feinberg [Howard Cobb of counsel], for the appellant.

S. M. Lounsberry [F. W. Clifford of counsel], for the the respondent.

The judgment below was an affirmance of a judgment recovered in Justice’s Court for the non-delivery of a carload of goods shipped by the defendant for the plaintiff. Upon the bill of lading were printed the letters “ S. L. & C.” The printing of these letters upon the bill of lading is claimed by defendant to exempt it from all liability for the non-receipt of these goods under section 209 of the Personal Property Law. That section provides: “The carrier may, also, by inserting in the bill the words, ‘shipper’s load and count,’ or other words of like purport, indicate that the goods were loaded by the shipper and the description of them made by him; and if such statement be true, the carrier shall not be liable for damages caused by the improper loading or by the non-receipt or by the misdescription of the goods described in the bill.” (Consol. Laws, chap. 41 [Laws of 1909, chap. 45], § 209, added by Laws of 1911, chap. 248.) The sole contention of appellant upon this appeal is that the insertion of the letters “S. L. & C.” is a compliance with the statute, exempting defendant from the liability to which it might otherwise be subject. It is unnecessary to pass upon the contention of the plaintiff that this statute is unconstitutional, or that it is against public policy. We a,re satisfied- that the defendant has not brought itself within its terms. The initials “S. L. & C.” are not within the statute the equivalent of the words “shipper’s load and count,” or words of like purport. If a course of dealing had been shown between the parties where such initials had been used to the knowledge of both parties as indicating such meaning, a different question might arise. Without proof of such dealing, however, in order to claim the exemption given by the statute, defendant must comply strictly with the conditions named. We are of the opinion, therefore, that the judgment of the County Court should be affirmed, with costs.

All concurred; Kellogg, J., not sitting.

Judgment affirmed, with costs.