Opinion
November 10, 1909.
W.J. Welsh and F.W. Welsh, for the appellant.
Alexander Green [ Clifton P. Williamson of counsel], for the respondent.
The defendant is an express company and a common carrier of goods for hire. Plaintiff, who was temporarily sojourning at the Fifth Avenue Hotel in the city of New York, went to the defendant's office in that city and left an order for the defendant to procure a dress suit case with its contents at the hotel on the following day and transport it to Hackensack in the State of New Jersey. She told the clerk of the defendant that the suit case would be in her room at the hotel; that the room would be open; that she would not be there; and gave the number of the room. She subsequently told the hotel clerk that the defendant would call for the suit case; that she would be out; and asked him to take the receipt for her, which he did. On her return to the hotel after the suit case had been taken by defendant she asked for and was given the receipt, which she retained but did not read. This receipt was in the usual form given on such occasions and contained various provisions, including a provision that the liability of the defendant was limited to fifty dollars unless a greater value of the property was therein stated. No value appears to have been asked of either plaintiff or the hotel clerk, and none was given. The suit case was lost while in charge of defendant.
The question submitted to the jury was whether the plaintiff was made aware of the contents of this receipt and they were left at liberty to ignore the limited liability clause and award the plaintiff a verdict for the value of the property if they found that such limited liability clause had escaped her attention. She recovered a verdict for the full value of the property and the court granted the defendant's motion to set aside the verdict unless she would stipulate that it be reduced to fifty dollars.
The hotel clerk was by the act of plaintiff constituted her agent for the purpose of delivering the property to defendant and was authorized to make the contract for limited liability evidenced by the receipt. ( Addoms v. Weir, 56 Misc. Rep. 487.) She in effect told him not to let her property go into the possession of defendant without a receipt and virtually placed it in his possession for delivery to defendant. According to her final instructions defendant could not get the property except through this clerk designated by herself and then only upon delivery to him of the receipt. He was the only person with whom the defendant could contract for a limited liability, and for the reasons stated in the case cited I think he had authority so to contract in behalf of plaintiff. This view of the situation justifies the order setting aside the verdict because, as held by the learned county judge, of an erroneous refusal to charge the jury as requested by defendant that the hotel employee was the agent of plaintiff and authorized by her to stipulate for a limited liability. This employee was not called as a witness and the jury, if charged as requested, might have found that he was aware of the limited liability, although the plaintiff was not personally aware thereof, and his knowledge would of course have been imputable to her.
I think, however, that under the circumstances here appearing there was no question for the jury and that plaintiff as matter of law was limited in her recovery to the sum of fifty dollars. It is now well settled that a receipt of the general nature of the one in question constitutes the contract between the parties, and that a shipper of goods receiving it without objection is bound by its provisions in the absence of artifice or concealment, and cannot overcome its legal effect by failing to read it or to acquaint himself with its provisions. (See Hoffman v. Metropolitan Express Co., 111 App. Div. 407, and cases there cited.)
The authorities relied on by plaintiff are cases which involve unusual circumstances or are what are known as "baggage express" cases where the receipts are intended only for the purpose of identifying or tracing the property and not as expressing the agreement of transportation between the parties. The inapplicability of that class of cases as authorities in a case like this involving the transportation of property by an ordinary express company is pointed out in Mills v. Weir ( 82 App. Div. 396).
The order should be affirmed, with costs.
Order unanimously affirmed, with costs.