Hyperlawhypertext legal databasebeta Falkenau v. Fargo 35 N.Y. Super. Ct. 332

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Falkenau v. Fargo

35 N.Y. Super. Ct. 332 3 Jones & S. 332 Court N.Y. Super. Ct. Decision date 1873-02-01 English

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p. 332
MORRIS FALKENAU, et al., Plaintiffs, v. WILLIAM G. FARGO, President of The American Merchants Union Express Company, Defendant.

Headnote

The plaintiffs made out the receipt or contract in question from printed blanks in their possession, which had their nam.es and that of the defendants printed therein, and this receipt was presented by plaintiffs to defendants for the latter’s signature, with the package of goods for transportation, and was executed by defendants at the time they received the goods for transportation.
Held, That plaintiffs were not in a position to claim the benefit of the doctrine and rule so well established, “that a common carrier cannot secure a limitation or restriction of his common-law liability by a mere notice or condition endorsed upon, or incorporated in, the receipt of the goods to the shipper; that such a notice is at most only a proposal for a special contract which requires the assent of the shipper to its terms, to make it binding upon him.”
In this case the plaintiffs proposed to defendants a special contract of their own creation, and in the making thereof they were not influenced by the defendants. The defendants assented to it, and executed the same with plaintiffs, and became binding upon both parties, and the liability of the carrier is to be measured by the terms and conditions of this special contract.
Before Barbour, Ch. J., and Freedman and Sedgwick, JJ.
Decided February 1, 1873.
Verdict for plaintiff. Judgment suspended, and ex
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ceptions to be heard in the first instance at General Term.
The action was brought to recover the value of a package of jewelry belonging to the plaintiffs, and delivered by them to the American Merchants Union Express Company, to be transported and delivered by said company to A. B. Van Cott, plaintiffs’ agent at Milwaukee, Wis., but which, owing to the negligence of the company, never reached its place of destination.
The answer admitted the receipt of the package, but denied the allegations of the complaint as to contents and value, and the company’s negligence. It then set up as follows :
“ That at the time of the delivery of the said package “to the company there was delivered by the shippers “of said package to the said company for their signature, an agreement, partly written and partly printed, “which agreement was signed by the said company, “and re-delivered to the shippers of said package, and “ accepted by them ; that said agreement constitutes the “sole and only contract between the parties to this ac“tion, respecting the forwarding and transporting of “the said package, and by the terms thereof the said “company is not liable beyond the sum of fifty dollars “for the loss of the said package.
“Defendants further aver that, by the failure on the “ part of the shippers of the said package to inform the “defendants of the value of the same, defendants were “ deprived of their just reward for the transportation of “the same.
“Defendants further aver that they undertook to “transport the said package according to the directions “thereon, and used all reasonable care and diligence in “the prosecution of their said undertaking;' that the “defendants, being made to believe by the plaintiffs “that the said package contained ordinary merchandise
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“ only, placed the same in their car with their ordinary “merchandise for transportation as aforesaid; that the “said car, while on the Michigan Central Railroad, “near Ann Harbor, Michigan, was burned with all its 1 ‘ contents, including the package in question, on the “night of the 16th of October, 1870, without any fault “or negligence on the part of the defendants ; that, had “the defendants known, or had any reason to believe, “that the said package was a valuable one, they would ‘ ‘ not have placed the same in said car with their ordinary merchandise, but would have placed the same in “their safe with other valuable packages, and that in “that case the said package would no.t have been “ destroyed and lost to plaintiffs.”
Upon the trial plaintiffs proved the value of the package to be $1,658.15, and rested.
After defendants’ motion for a dismissal of the complaint had been denied, defendants’ counsel called upon plaintiffs to produce the contract referred to in the answer. It was produced and put in evidence by the defendants, and marked “ Exhibit A.” It read as follows :
American Merchants Uinoh Express Company.
New York, October 15 tJi, 1870.
Received of F alebrar, Pollae & Co., 1 package, said to contain --, valued at (not given) dollars, marked A. B. Van Cott, Milwaukee, Wis., which we undertake to forward to the nearest point of destination reached by this company, subject expressly to the following conditions, namely: This company is not to be held liable for any loss or damage except as forwarders only, nor. for any loss or damage by fire, by the dangers of navigation, by the act of God or of the enemies of the Government, the restraints of Government, mobs, riots, insurrections, pirates, or from or by reason of any of the hazards or dangers incident to a state of war. Nor shall this company he liable for any default or negligence of any person, corporation or association to whom the above described property shall or may he delivered by this company for the performance of any act or duty in respect thereto', at any place or point off the established routes or lines run by this company, and any such person, corporation or association is not to be regarded, deemed or taken to be the agent of this company for any such purpose, but on the contrary, such person, corporation or association shall
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be deemed and taken to be the agent of the person, corporation or association from whom this company received the property above described. It being understood that this company relies upon the various railroad and steamboat lines of the country for its means of forwarding property delivered to it to be forwarded, it is agreed that it shall not be liable for any damage to said property caused by the detention of any train of cars or of any steamboat upon which said property shall be placed for transportation; nor by the neglect or refusal of any railroad company or steamboat to receive and forward the said property.
Nor shall this company be liable for any loss or damage of any box, package or thing, for over $50, unless the just and true value thereof is herein stated, nor upon any property or thing, unless properly packed and secured for transportation; nor upon any fragile fabrics, unless so marked upon the package containing the same; nor upon any fabrics, consisting of, or contained in glass. This company will not be liable for any loss or damage unless the claim therefor shall be made in writing within thirty days from the accruing of the cause of action in a statement to which this receipt shall be annexed. The party accepting this receipt hereby agrees to the conditions herein contained.
For the company,
McKmetBY, Agent.
Plaintiffs admitted that the "body of the paper “ Exhibit A ” was written in by the plaintiffs at their office, and that the same so filled np was presented by them to the defendants for their signature when the package in question was delivered to the defendants ; that it was then signed by the defendants and re-delivered to the plaintiffs.
Plaintiffs also admitted that the package in question, with its contents, was burned while in transitu, without fault or negligence on the part of the defendants.
Defendants’ counsel moved that the complaint be dismissed on the ground that, as under the evidence, no negligence was proved on defendants’ part, the plaintiffs cannot recover. Motion denied, and defendants’ excepted. .
Defendants’ counsel moved the court to instruct the jury to find a verdict for the defendants’, upon all the evidence. Motion denied, and defendants’ counsel duly excepted.
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Defendants’ counsel moved the court to instruct the jury that in any event the plaintiffs are not entitled under the evidence to recover beyond the sum of $50, with interest from the time the cause of action, if any, accrued.. Motion denied, and defendants’ counsel duly excepted.
The court directed the jury to render a verdict for the plaintiffs, for the sum of $1,832.26, being the value of the package with interest. Defendants’ counsel duly excepted.
The court directed judgment to be suspended, and the exceptions to be heard in the first instance at General Term.
Roger A. Pryor, for plaintiffs.
Hooper C. Van Vorst, for defendants.

The plaintiffs in this action are not in a position to claim the benefit of the doctrine, that a common carrier cannot secure a limitation or restriction of his common-law liability, by a mere notice endorsed upon or incorporated in his receipt, and that such notice is, at most, only a proposal for a special contract, which requires the assent of the shipper to its terms. According to the evidence, the plaintiffs had in their possession a blank receipt for the transportation of merchandise, which contained the name of the American Merchants Union Express Company, as forwarders, the name of plaintiffs’ firm, in large Roman capitals, as shippers, and a series of conditions and clauses regulating the manner of transportation and the liability of the express company in certain cases and contingencies. This blank receipt was filler! up by the plaintiffs at their own office, and the receipt, as thus prepared, was thereafter, namely at the time of the delivery of the merchandise for transporta

p. 337
tion, presented toy plaintiffs to the express company for signature. It therefore constituted a proposal on the part of the plaintiffs for a special contract, which was wholly of their own creation, and in the making of which they had not been influenced toy any act on the part of the company.

How, as every person is presumed to intend that which is the ordinary and natural consequence of his own purposed act, it follows that, when the express company assented to such proposal toy signing the same, and redelivering it to the plaintiffs, the proposal ripened into a special contract, and as such it became binding upon tooth parties. In regard to the provisions of that contract, plaintiffs cannot toe permitted to plead ignorance. Upon this point the case at bar is analogous to Breese v. U. S. Telegraph Co., 45 Barb. 274 , affirmed in 48 N. Y. 132 , and Westcott v. Fargo, decided toy the General Term of the Supreme Court of the Fourth Department, at the June Term of 1872.

The liability of the company is to toe measured, therefore, toy the terms of the special contract, and toy that it is provided that the company is not to be held liable for any loss or damage toy fire. How, although that provision does not include loss or damage toy fire occasioned toy the carelessness or negligence of the company, or its agents or servants, in respect to which the common-law liability of the company remained unaltered (Simmons v. Law, 3 Keyes, 217; Magnin v. Dinsmore, President, etc., ante, page 182), yet, plaintiffs having admitted on the trial, not only that the merchandise was burned while in transitu, tout also that this occurred without fault or negligence on the part of the company, nothing remained upon which, under the terms of the contract, a liability on the part of the defendants for the loss which had thus occurred could toe predicated (Lamb et al. v. Camden & Amboy R. R. & T. Co., 46 N. Y. 271 ).

p. 338
The clause, that the company shall not be liable for any loss or damage of any box, package, or thing for over fifty dollars, unless the just and true value thereof is stated in the receipt, cannot, by any just construction of the whole instrument, be made to work, by the mere neglect of the shipper to declare the value, a limited liability on the part of the company, where no liability outside of it exists. Until a liability is actually incurred, the limitation clause remains a mere dormant stipulation.

When, therefore, it appeared, from the uncontroverted and admitted facts of the case, that the company was, in respect to the transportation of the merchandise in question, only an ordinary bailee or private carrier for hire, according to the terms of the special contract, that by the latter the company was wholly exempted from liability for loss or damage by fire, that the merchandise was .destroyed by fire while in transitu, and that such fire occurred without fault or neglect on the part of the company, or any of its agents or servants, the verdict, instead of being directed in favor of the plaintiffs, should have been directed for the defendants.

Defendants’ exceptions must be sustained, the verdict set aside, and a new trial ordered, with costs to appellant to abide the event.

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