Opinion
June, 1909.
Alex. S. Lyman, for appellant.
Russell H. Robbins, for respondent.
From the facts appearing, over scant objections and without contradictions, the contentions of the appellant's counsel are more quirksful than converting. The plaintiff, bringing her household goods well packed, boxed and crated, from her Massachusetts residence to her town house, shipped them at Brookline, "a pretty large carload; two tiers," as said the defendant's yardman in New York, in the New York Central's car, whence they were taken to the warehouse in this city of the other defendant, which does not appeal, and thence to her house where, on the unpacking, they were found badly broken and damaged. The jury's verdict was for $293 against the storage company, and $600 against the New York Central, whose bill of lading for "H.H. Goods, 12000 (lbs)," had marked upon it: "Value restricted to $5.00 per 100 lbs."
The shipment was made up, truly, of parcels large and small, of little size and weight, of large bulk and heavy; but, from the description, the shipment as a whole and not as of individual articles must be deemed as in the mutual contemplation of the parties making and acceding to the limitations of liability by the hundred weight. Now it is contended, with citation of cases in States over the Union, mostly horse cases, cases of mules, sheep, jacks and other live stock affreighted by the head, in Arkansas, Indiana, Illinois, Minnesota, Missouri, Montana, North Carolina, Tennessee and Texas, that the learned trial justice erred by declining substantially to make a new contract for the parties in refusing to charge that the recovery could be had only on the basis of the weight of the separate articles at the rate of five dollars per 100 pounds, which would have been in derogation of the contract pleaded by the defendant and containing the saving limitation by the hundred weight. It complains, also, that the learned trial justice in effect instructed the jury that a verdict might be found against the defendant for $600, because that in a colloquy the court remarked — to compose counsel's fears that the verdict might be for more — that it would not allow a judgment against the New York Central for more than $600. To that no exception was taken.
The judgment must be affirmed.
GILDERSLEEVE, J., concurs.
SEABURY, J., dissenting.
Judgment affirmed, with costs.