Opinion
March 3, 1916.
Frank Hasbrouck, for the appellant.
Morschauser Mack, for the respondent.
The plaintiff was bound by the special contract tendered to and received by her agent. ( Mills v. Weir, 82 App. Div. 396; Knapp v. Wells, Fargo Co., 134 id. 712; Noonan v. Wells-Fargo Co., 68 Misc. Rep. 322.) Her recovery for damages was limited under the circumstances of this case to the sum of fifty dollars. The judgment is modified by reducing the amount of the recovery to the sum of fifty dollars and costs, and as so modified the judgment and order are affirmed, without costs of this appeal.
CARR, STAPLETON, MILLS and RICH, JJ., concurred; PUTNAM, J., read for affirmance.
The facts show damage from the carrier's negligence which it does not attempt to excuse. Whether the barrel contained flour, potatoes or other usual barrel commodities, and whatever was its declared value, it was not to be left out unprotected. The contents were soaked and discolored. A common carrier in this State by general exception may relieve itself even from its own negligence. ( Boyle v. Bush Terminal R.R. Co., 210 N.Y. 389.) Where, however, the carrier's receipt in the course of its excepting clauses reserved therefrom instances of its negligence, it cannot say that the fifty-dollar limitation measures its liability, whether from negligence or otherwise.
In this receipt the carrier is not to be "liable in any event for more than Fifty dollars ($50), on any shipment of 100 pounds or less." But it does not stop there. It goes on: 4. " Unless caused by its own negligence" it is not to be liable for difference in weight, or for death, injury or escape of live freight. 6. "Packages containing fragile articles or articles consisting wholly or in part of glass must be packed so as to insure safe transportation by Express with ordinary care. If not so packed and plainly marked so as to indicate the nature of the contents the Company shall not be liable for damage to such shipment unless proved to be negligent."
The carrier's duty to take ordinary care is so fundamental that defendant would not venture to leave it wholly out in drawing up these protective exemptions. The clauses would naturally lead a shipper to think, and, in my view, a court to hold, that the qualifications "unless proved to be negligent," "unless caused by its own negligence," apply elsewhere in the contract. Can the express company say, I am in no event to pay more than fifty dollars, but in case of certain articles, or liabilities, I shall not be liable at all, unless I am shown to be negligent? Perhaps that might be contended before section 38 of the Public Service Commissions Law (Laws of 1907, chap. 429; now Consol. Laws, chap. 48 [Laws of 1910, chap. 480], as amd. by Laws of 1913, chap. 344). But if these clauses as to certain kinds of merchandise purport to exempt from all liability, then in this State they are void.
I think, therefore, the exemption to fifty dollars in this receipt did not cover damage caused by defendant's proven negligence.
Judgment modified in accordance with opinion per curiam, and as so modified judgment and order affirmed, without costs of this appeal.