Marquis v. Wood

This is an appeal from a judgment entered upon the verdict of the jury, and from an order denying á motion to set aside the verdict for a new trial. On the 9th day of January, 1896, three bales of fur, the property of the plaintiffs, were delivered to the Pacific Express Company at Columbus, Mo., for shipment and delivery to thé plaintiffs at New York in the due course of business. The three bales came into the possession of the defendant as the agent of the Pacific Express Company, to complete the transportation thereof, and the defendant company, by some mistake, delivered the bales to others than the plaintiff. When the error was discovered, part of the goods were returned to the plaintiffs, and for the remainder this suit is brought. There is no dispute as to the facts, and it will be conceded that no greater obligation could be imposed upon the company completing the transportation of the goods than was assumed by the company receipting therefor. The question for us to consider on appeal is what construction should be put upon the receipt given, with regard to fixing or limiting the amount of recovery. The trial judge, in charging the jury, said that a stipulation in a contract of shipment that the value of the property did not exceed $50, where the rates of transportation are based on such stipulation, did not apply in a case of negligence, and the counsel for the appellant cites the case of Belger v. Dinsmore, 51 N. Y. 166 , as an authority for the contrary holding. But the cases are not similar. In the case cited the company was not in any event to demand more than $50, and the court said:

“A party accepting such an instrument as has been already shown, declares his assent by such acceptance to those terms and conditions.”

But the case cited has been particularly distinguished from the one at bar in Magnin v. Dinsmore, 56 N. Y. 168 , where the court said:

“In Belger v. Dinsmore, supra, the contract stipulated for immunity to the carrier, unless the loss should be proven to have occurred from the fraud or gross negligence of the express company, in any event limiting the recovery which might be had to $50, unless a greater value was specified. Effect was given to it according to its terms, and the same decision was made in Steers v. Liverpool, N. Y. & P. S. S. Co. upon a contract worded substantially, the same way, and the provision for a limited liability was held to take effect when

the loss was through negligence, inasmuch as all losses were excepted unless proved to have been occasioned by negligence.”

In the case at bar the contract provided that said express company shall not be liable for any loss or damage to said property exceeding the sum of $50, and the courts in a number of instances have held that the carrier did not, by this attempt to limit his liability, relieve himself from a loss occasioned by his own negligence; nor would that appear to be the full limit intended to be fixed by the company in the present case, for the receipt also contained the words, “nor in any event shall said company be liable for more than the true value of the property.” Judging, therefore, by the light of the foregoing authority, it was not error for the court to submit to the jury the question of value, nor of the plaintiff’s right to recover more than $50 in the event that his loss or damage exceeded that sum. Evidence of value was permitted under a general objection, which did not state grounds, and the defendant excepted, but this cannot avail the defendant upon appeal; and again, an objection to a question as incompetent and an exception does not give to the excepting party any broader grounds for argument upon appeal than was fixed by the objection itself. A question as to what was the value of the goods at the time of the loss was clearly not incompetent, but went to the very point concerning which the inquiry was made, and the value sought as a matter of materiality upon the amount which might be recovered. It may have been a difficult matter to prove value, but we are not prepared to say that the evidence adduced was not clearly within the authority for its proper admission.

It was shown, and, indeed, conceded, that a portion of the goods had been lost, and the court permitted evidence of the valúe of those delivered as fixing relatively the value of those not delivered. They were in one consignment, of one kind, as testified to, and with reason, we think, a party might say what, for instance, was the value of one or two bales as measured by the value of a bale delivered. If one bale were worth $200, then it is not unreasonable to say that two bales were worth $400; or, if that be unfair, then to fix the price or value according to the number of skins received, and apply this measure of value to the number lost. In any event, we do not think that the defendant was prejudiced by the submission to the jury. The defendant gave no evidence of value whatever, and took no exception to the charge in any form, and must be held to have accepted the words of the trial judge to the jury, “In the case of negligence on the part of the express company, that part does not apply,” referring to the defendant’s contention that the company was exempted beyond $50.

Judgment and order appealed from must be affirmed, with costs. All concur.