Majority
p. 171Henry Fibel vs. Johnston Livingston, President of the National Express Company.
Headnote
A notice, at the head of a receipt given by an express company, for freight, stating that shippers must have the value of their packages inserted in such receipt, otherwise the company will not be responsible for an amount over $60, is insufficient to constitute a contract, where it is not proven to have been.brought to the knowledge of the shipper.It is well settled, in this State, that it is lawful for common carriers to limit, by contract with their shippers, the extent of their liability for loss or damage, on the articles conveyed.
The plaintiff, on delivering to the defendant, a common carrier, goods for transportation, received a bill of lading, or receipt, containing, in the body thereof, an express provision, that the plaintiff should not demand, in any event, beyond the sum of fifty dollars, at which the goods forwarded were thereby valued, unless otherwise therein expressed, or unless specially insured by the carrier, and so specified in the receipt. The plaintiff accepted such bill of lading, without making any objection to its terms, or giving' any statement of the value of the property shipped, or informing the carrier of his inability to read, or applying for any information as to the contents of mch bill; thus leaving the carrier to act upon the assumption that he accepted the contract without objection. Held that the liability of the defendant, to the plaintiff, under this contract, was limited to $50 and interest; and that the judge, on the trial, erred in- not so ruling, and in ordering a recovery for a greater amount.
■ Held, also, that under these circumstances, the fact that the plaintiff was unable to read and write could make no difference.
APPEAL by the defendant from a judgment entered at a Special Term on a trial before the court without a jury.
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The issues, as presented by the pleadings, were simply these: 1. The complaint alleges a cause of action against the defendant as common carrier, for the. loss of two trunks, delivered to the defendant by the plaintiff, at New York, in December, 1867, to be transported to Cambridge; the non-delivery of the trunks at Cambridge, although sufficient time for their transportation had elapsed; and that the contents of' said trunks were of the value of $238.47.
2, The answer substantially denies the fact that the trunks were delivered to and received by the defendant, in his capacity of common carrier, and avers that on the delivery of the said trunks to the defendant the plaintiff and defendant entered into a special contract, with reference to the transportation of the said trunks, by the defendant issuing to, and the plaintiff receiving and accepting, a certain domestic bill of lading, containing the terms on which the said trunks should be transported; and that such bill of lading constituted the only contract, with reference to the transportation of said trunks, entered into between the plaintiff and defendant. A copy of the said bill of lading was attached to the answer. At the head of said bill of lading the following is printed:
“Notice,—Shippers must have the value of their packages inserted in this receipt, otherwise the company will not be responsible for an amount over $50.”
In the body of the bill of lading it is provided, inter alia, as follows: “It is a part of the consideration of this contract, and it is agreed that * * * * nor in any event shall the holder hereof demand beyond the sum of $50, at which the article forwarded is hereby valued, unless otherwise herein expressed, or unless specially insured by them, and so specified in this receipt.”
On the issues so framed, the cause came on for trial at a circuit court held by Justice Ingraham. A jury
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was waived. The defendant having admitted that the value of the contents of the trunks, alleged to have been lost, had been correctly stated at $238.47, the plaintiff thereupon admitted that, at the time of the delivery of the said trunks by the plaintiff to the defendant’s company, there was issued by the said company to the said plaintiff, and accepted by him, a bill of lading, of which a copy was set forth in foil. It is similar in aE respects to that referred to in the answer, and annexed thereto, with the difference, merely, of the proper filling up of the blanks. The actual value of the trunks is not stated in the biE of lading. The plaintiff then testified on the direct examination (not through an interpreter, but in Engfish,) that he was a German; that.he saw the biE of lading when it was given; that he could not read or write English, and that he had not read the biE of lading. On cross-examination he testified, inter alia, as foEows:
“Q. That was given you at the time you made the shipment? (Showing witness receipt.) A. That was given to me; I took it and put it into my pocket-book; I kept it there until I had an answer from the country that they did not get the goods, so I took the receipt and sent it down to the Company.
Q. As a voucher for the trunks ?
A. Tes, sir.”
The plaintiff, then rested, and thereupon the defendant’s counsel requested the court to decide, that by the terms of the said biE of lading, the recovery of the plaintiff in this action, if any, should be $50, and interest from its date.
The court refused so to rule; to which refusal the defendant’ s counsel duly excepted. Thereupon the court ordered judgment for the plaintiff for the sum of $256.71, and costs.
The learned justice, in his finding of facts, found, inter alia:
“6. That the parties to this suit did not contract as
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alleged in the answer; nor did the plaintiff enter into the agreement specified therein; nor was the liability of the defendant limited by any alleged contract to the sum of $50, and interest thereon from the date of the receipt.” And as conclusions of law held: 1. That the defendant was liable for the trunks and contents so lost, in his capacity of common carrier.
2. That the plaintiff was entitled to recover the sum of $238.47, the value of said trunks and contents, and $19.18 interest thereon, from the time of the receipt of said trunks and contents by said company, with the costs of this suit. Wherefore judgment was accordingly directed in favor of the plaintiff and against the defendant, in the sum of $257.62, with costs.
The defendant duly filed and served his exceptions to the findings of fact and conclusions of law of the learned justice.
Judgment having been entered in favor of the plaintiff, for the sum therein directed, with costs, the defendant duly appealed from said judgment.
Chas. M. Da Costa and C. A. Seward, for the appellant.
I. The right of a common carrier to limit, by special contract, his common law liability, is no longer a subject of discussion.
II. The bill of lading, executed by the defendant, and received by the plaintiff, without objection, when he delivered the trunks into the custody of the defendant, was evidence of the contract entered into between them; and the defendant must be regarded as undertaking, and the plaintiff as agreeing, that the trunks were to be carried upon the conditions therein expressed. (Wolfe v. Myers, 3 Sandf. 7 . Newstadt v. Adams, 5 Duer, 43 . Moriarty v. Harnden Exp., 1 Daly, 227 . Hoffman v. Dinsmore, MS. opinion of New York Common Pleas, General Term, 1867; opinion by Daly, J. Dorr v. N. J.
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Steam Nav. Co., 1 Kern. 485. French v. B. N. Y. and E. R. R. Co., 4 Keyes, 108. Guillaume v. Hamb. and Am. P. Co., 42 N. Y. 212 . Steinweg v. Erie R. R. Co., 43 id. 123. Maghee v. C. and Amboy R. R. Co., 45 id. 514. Belger v. Dinsmore, Court of Ap., Sept. Term, 1872, unreported. N. Y. Manuf. Co. v. Ill. Cent. R. R. Co., 3 Wall. 107 . Kalman v. U. S. & Exp. Co., 3 Kans. 205 . Grace v. Adams Exp. Co., 100 Mass. 505 . Pendergast v. Adams Exp. Co., 101 id. 120. Lawrence v. Prov. and B. R. R. Co., 36 Conn. 63 .)
III. The court below erred in declining to rule that the plaintiff was only to recover the sum of $50 (the stipulated value in said bill of lading,) with interest; and in ruling that the plaintiff was entitled to recover the actual value of the lost trunks, contrary to the stipulation in said bill of lading contained. This very stipulation, (commonly known as the $50 clause,) and others, differing in amount only, have frequently been the subject of judicial sanction. (See Newstadt v. Adams Express Co., 5 Duer, 43 ; Moriarty v. Harnden Express Co., 1 Daly, 227 ; Dorr v. N. J. Steam Nav. Co., 1 Kern. 485; Hoffman v. Adams Exp. Co., supra; Kalman v. U. S. Exp. Co., 3 Kans. 205 ; Van Toll v. S. E. R. R. Co., 12 C. B., N. S., [104 Eng. Com. L.,] 75; Marsh v. Horn, 5 B. & C. 322; Baxendale v. Great E. R. Co., 4 Q. B. 244; Brehme v. Adams Exp. Co., 25 Md. 328 ; Boorman v. Am. Exp. Co., 21 Wis. 152 ; Belger v. Dinsmore, supra.)
IY. On the trial, the plaintiff, who was a German, testified that he could neither read nor write English. This fact, it is conjectured, was the ground on which the court below based its decision as to the non-existence, under the circumstances, of. any special contract of carriage between the parties. If this conjecture be correct, (and in view of the foregoing well settled principles of law, it is the only one which can arise,) then it is respectfully submitted that the decision of the court below cannot be sustained, even in such a view of the case,
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because, 1. The defendant was willing to receive and transport the trunks on the stipulated freight, as bailees for hire alone, and not as common carriers; and the plaintiff, by receiving and accepting the bill of lading issued by the defendant, without dissent from its terms, thereby signified his assent to the defendant’s assuming such limited liability. From the act of the plaintiff the defendant was therefore authorized to infer the plaintiff’s assent to the only contract the defendant was willing to make, and had a right to suppose, by such assent, so expressed, that he had made. 2. The plaintiff spoke English perfectly, and the fact that he could not read or write it, appeared for the first time on the trial. The defendant, had, therefore, the right to the presumptions: (a.) That the plaintiff could read English, because he spoke it fluently. In this English speaking, and generally educated country, inability to read such language cannot be presumed. The plaintiff, by not informing the defendant of this inability to read the shipping contract when handed him, confirmed such presumptions. (b.) That he knew the law; that acceptance by him of the bill of lading constituted the contract between him and the defendant for the transportation of the trunks. His ignorance of the law cannot avail him. (Ignorantia legis neminem excusat.) 3. The defendant having acted under the bill of lading as delivered to the plaintiff, and accepted by him, the plaintiff is equally bound by it, in the absence of fraud or imposition, (a.) Whether he read or did not read its terms and conditions. In Rice v. Dwight Manufacturing Co., ( 2 Cush. 87 ,) which was an action indebitatus assumpsit, to recover for work done, the defence was that the work was performed under a special contract; and a paper of printed regulations was shown to have been given to and accepted by the plaintiff, as containing the terms of the contract, but which was not signed by either party. The plaintiff denied knowledge of its contents; but the court held
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that where a party enters into a written contract, in the absence of fraud, he is conclusively presumed to understand its terms and legal effect, and to consent to them. J udgment was therefore given for the defendant. In Grace v. The Adams Express Company, ( 100 Mass. 505 ,) which was an action against the express company as common carriers, for the loss of certain goods delivered at Wilmington, to be carried to Taunton, Massachusetts, the bill of lading issued by the defendant and accepted by the plaintiff, contained a clause exempting the defendant from loss arising from accidental fire, the dangers of the sea, &c. The goods were lost at sea by the accidental burning of the steamer transporting said goods. Justice Colt, in delivering the opinion of the court, said: “ The receipt was delivered to the plaintiff as the contract of the defendants. It is in proper form. The terms and conditions are expressed in the body of it, in a way not calculated to escape attention; and the acceptance of it by the plaintiff, at the time of the delivery of his package, without notice of his dissent from its terms, authorized the defendants to infer assent by the plaintiff. It was his only voucher and evidence against the defendants. It is not claimed that he did not know when he took it, that it was a shipping contract, or bill of lading. It was his duty to read it; and the law presumes, in the absence of fraud or imposition, that he did read it, or was otherwise informed of its contents, or was willing to assent to its terms without reading it.” Again, in Hopkins v. Westcott's Express Co., (6 Blatch. 64,) Justice Shipman, in delivering the opinion of the Circuit Court of the United States for the Southern District of Hew York, said: “It can make no difference that the plaintiff did not choose to read it” (the bill of lading) “until after he had notice that his trunk was lost. He received it at' the time he parted with the trunk; it was legibly printed; and he must be charged with actual notice of its contents.” And to the same
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effect are Lewis v. Great Western Co., (5 H. & N. 867;) Van Toll v. South Eastern R. R. Co., (12 C. B., N. S., [104 Eng. Com. L.,] 75; Squire v. N. Y. Cent. R. R. Co., ( 98 Mass. 239 ; Perry v. Thompson, (Id. 249.) The same doctrine, too, has been applied, 1. To the conditions printed at the head of a telegraphic blank. Breese v. U. S. Tel. Co., ( 45 Barb.. 274 ,) affirmed by the Commission of Appeals, (6 Alb. L. Jour. 273,) which held, that if a party omits to read or to become informed of the terms and conditions’ contained in a telegraphic blank, it is his own fault. A contract voluntarily signed _ and executed by the party, in the absence of misrepresentation or fraud, with full knowledge or information as to its contents, cannot be voided on the ground of Ms negligence or omission to read or avail himself of such information. (2 Am. Law Rev. 615, where the authorities are collected.) 2. To the conditions printed on a railway ticket. (McAndrew v. Electric Tel. Co., 17 Com. B. 3. Perkins v. N. Y. Cent. R. R., 24 N. Y. 215 . Smith v. The same, Id. 223 . Bissell v. The same, 25 id. 445.) 3. To the conditions of a policy of insurance. Pindar v. Resolute Fire Ins. Co., ( 47 N. Y. 114 ,) in which the Court of Appeals held that the failure of the insured to read the policy, could not enlarge the liability wMch it imposed upon the defendant. (6.) Neither could the inability of the plaintiff to read the terms and conditions of the receipt enlarge the defendant’s liability. Suppose a person speaking English, but not able to read or write it, goes to an insurance company in the city of New York, and causes Ms store to be insured, paying the proper premium for the risk assumed by the company, and receives a policy. Attached to the policy are certain essential conditions, the violation of any one of which vitiates the policy. Shortly thereafter the assured violates one or more of said conditions, and the property is then destroyed by fire. Could the assured nevertheless recover by merely proving at the trial that
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he was unable to read or write English ? Such a proposition cannot be seriously advanced. But this question was authoritatively settled by the Court of Appeals, in Warhus, adm'r &c., v. The Bowery Savings Bank, ( 21 N. Y. 543 .) In that case the intestate, who was a German, “understanding but a few of the most familiar words of our language,” signed the rules and regulations of the bank, and received a pass-book, in which the deposit was entered, and which had pasted in the front part thereof the said rules and regulations. These rules were in the English language, and were also posted in such language on the walls of the banking room. The court held that the intestate was bound by such rules and regulations, and that his administrator could not recover the intestate’s deposits without first complying with such rules and regulations.
V. It is fairly inferable from the plaintiff’s evidence, that he knew full well the purport and effect of his accepting, without dissent, the bill of lading. He testified that he took the goods down to the defendant’s office, accepted the bill of lading for the same, put it in his pocket and kept it until, hearing that the trunks had not arrived at their place of destination, he sent it down to the defendant’s company as his voucher for the trunks.
VI. The judgment should be reversed, with costs; or so modified that judgment should be for the plaintiff for the sum of $50, with interest up to the 24th day of February, 1868, the date of the offer of judgment; and for the defendant for all costs subsequent to said date, including the costs of this appeal.
H. H. Morange, for the respondent.
The questions in this case were sufficiently raised by the application of the counsel of the defendants, at the close of the evidence for the plain
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tiffs, that the judge should decide that by the terms of the bill of lading the recovery of the plaintiff, if any, should be limited to $50 and interest. We may discard the notice, at the head of the bill of lading, as insufficient, within the decisions of the courts of this State, to constitute a contract, where, as in this case, the notice is not proven to have been brought to the knowledge of the shipper.
The body of the bill of lading delivered to the plaintiff, in person, on the delivery of the goods in question to the defendant for transportation, contains an express provision.that the plaintiff shall not demand, in any event, beyond the sum of $50, at which the article forwarded was thereby valued, unless otherwise therein expressed, or unless specially insured by the express company, and so specified in the receipt. The plaintiff accepted this bill of lading, containing the said limitation of the liability undertaken by the defendant. He made no objection to its terms, and gave no statement of the value of the articles of merchandise then delivered for transportation.
It is well settled, in this State, that it is lawful for common carriers to limit, by contract with their shippers, the extent of their liability for loss or damage, on the articles conveyed'. The leading case on this subject, in our own State, is that of Dorr v. New Jersey Steam Navigation Co., (1 Kern. 485,) which has since been repeatedly followed, and applied in principle, to cognate subjects in railroad and express transportation and to warehouse storage.
It can make no difference that the plaintiff was unable to read the contract. The defendant does not appear to have been aware of the plaintiff’s inability to read, nor did the plaintiff inform him, or apply for any information concerning its contents. He left the defendant to act upon the presumption that he accepted the contract without objection. The recent case of Belger v. Dins-
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more, President &c. of Adams Express Company, decided by the Commissioners of Appeals at the last September term, and handed np on the argument of this case, in MS., is conclusive here.
[First Department, General Term, at New York,
November 4, 1872.
Leonard and Learned, Justices.]
The learned judge erred in not holding, with the defendant, limiting its liability to the plaintiff to $50 and interest.
The judgment should be reversed, and a new trial ordered, with costs to abide the event, unless the plaintiff stipulates to reduce the damages to $50, with interest from the commencement of the action, within twenty days; and upon filing such stipulation, the judgment may be affirmed for the reduced amount, with costs of the appeal, to the defendant.
Learned, J. I think the decision in Belger v. Bins-more, referred to in the above opinion, is conclusive in this case, and concur on that ground.
Cases cited
- Wolfe v. J. Myers & Co. 3 Sandf. 7 p. 174
- Guillaume v. Hamburgh & American Packet Co. 42 N. Y. 212 p. 175
- York Co. v. Central Railroad 3 Wall. 107 p. 175
- Breese v. United States Telegraph Co. 45 Barb.. 274 p. 178
- Pindar v. Resolute Fire Insurance 47 N. Y. 114 p. 178