Healy v. New York Central & Hudson River Railroad

I concur in an affirmance of this judgment, but I do not agree that the Warehouse Law as contained in the General Business Law has anything to do with the question, or .that it in any way limits or imposes a liability upon the defendant. It is perfectly apparent from the whole scheme of the statute relating to warehousemen that it seeks to regulate only those persons or corporations who store merchandise which is to be resold or goods which are to remain some considerable time in storage. This is evidenced by the fact that receipts are directed to be given by such warehousemen stating particulars regarding the property deposited. Such receipts are negotiable unless otherwise stipulated, and by the law merchant title to the property passes by a mere transfer of the receipt itself. Such business is a large and important one requiring careful regulation. It seems to me furtherest from the intention of the Legislature to apply such a law to a parcel room rim in connection with a railroad station or a check room *521run in connection with a hotel solely for the accommodation of the traveling public.

Confessedly the check which was issued to the plaintiff did not purport in the slightest way to conform to the provisions of section 91 of the General Business Law (Consol. Laws, chap. 20; Laws of 1909, chap. 25) specifying the form of a warehouse receipt, and it seems to me quite illogical to measure the defendant’s liability by the concluding paragraph of that section. In addition, if the check which was issued to the plaintiff is to be deemed a warehouseman’s receipt, I do not think the limiting of the valuation of the property deposited was a contract impairing the obligation to exercise due care. Whatever else may have been printed on the hack of the check there does not appear to be anything exonerating the defendant from liability if it should not exercise due care with respect to the goods. In fact, the defendant concedes that it did not exercise due care or such care as a reasonably careful man would exercise in regard to similar goods of his own, because it delivered the hag to-somebody else and mixed up the checks, and, therefore, confessedly was guilty of negligence and lack of care. The defendant confesses that because of its negligence it is liable to pay a certain sunq and asserts that that sum is the amount of ten dollars, which the plaintiff agreed to accept in case due care was not exercised.

The only question for us to pass upon is, therefore, whether there was any contract limiting the valuation of the goods to ten dollars. If there was, then the plaintiff must be contented with a judgment for that amount. If there was not, then he can recover the value of his goods which he deposited and which the defendant failed to deliver to him: -

The plaintiff had not arrived in Albany by the defendant’s road but he was an intending passenger. It was stipulated on the trial that he deposited his bag temporarily, expecting to take a train for Montreal at a later hour. Still I do not think the defendant in taking the plaintiff’s bag at its parcel room was engaged in the business of a common carrier or that its liability is to be measured as such. In that business it was a simple bailee. If it he assumed, however, that the storing of baggage of passengers in a parcel room was a part of defend*522ant’s business as a common carrier, there is nothing in this State to prevent a common carrier of goods or passengers from entering into a contract not to be liable in case of loss or injury-even from its own negligence. (Hodge v. Rutland R. R. Co., 112 App. Div. 142; 115 id. 881; affd., 194 N. Y. 570; Tewes v. North, German Lloyd S. S. Co., 186 id. 151.) The law does not favor such contracts, however, and the language must be clear and distinct in order to create exemption. (Gardiner v. N. Y. C. & H. R. R. R. Co., 201 N. Y. 387.) Such rule is peculiar to . the State of New York, and in most of the States of the Union common carriers are not permitted to make contracts with respect to goods or passengers relieving them from liability for their own negligence because such contracts are deemed contrary to public policy. (6 Cyc. 388, 578.) No such objection exists, however, to a contract fixing an agreed valuation of goods shipped, and it is quite universally held that such a contract entered into understandingly and in good faith is binding upon the shipper. (6 Cyc. 400; Gardiner v. N. Y. C. & H. R. R. R. Co., 201 N. Y. 391.) The only exception to the rule is that in some jurisdictions such a limitation of liability as is involved in an agreed valuation is deemed in effect an agreement not to be liable for the carrier’s own negligence, and where it is so regarded such agreement is not upheld. It was held as early as the case of Hollister v. Nowlen (19 Wend. 234) that a carrier could not restrict his common-law liability for negligence except by express contract, and that no form of general notice was sufficient to exempt it from liability. This • was adopted as the law in express company cases (Westcott v. Fargo, 61 N. Y. 542) and telegraph company cases (Pearsall v. Western Union Tel. Co., 124 N. Y. 256).

In Tewes v. North German Lloyd S. S. Co. (186 N. Y. 151) the decision in Westcott v. Fargo (supra) is distinctly stated to have been overruled, and the later express company decisions make the shipping contract given by express companies to the shipper binding upon the shipper whether he reads it or not because he is bound to make himself acquainted with its provisions: (Knapp v. Wells, Fargo & Co., 134 App. Div. 712.)

In Rawson v. Pennsylvania R. R. Co. (48 N. Y. 212) it *523was held that a notice printed on the face of a ticket with respect to the carrier’s liability for baggage was not binding unless the passenger’s attention was called to it or he knew of the stipulation from some other source. If his attention was called to it or he knew of it the law would presume in the absence of any objection upon his part that he assented to its terms. In Gardiner v. N. Y. C. & H. R. R. R. Co. (201 N. Y. 387) it was held that such a stipulation limiting liability for baggage, printed on a special form of ticket" issued at reduced rates, was binding, the decision going largely upon the fact that the public statutes of the State permitted a limitation as to liability for baggage and required the publishing of schedules of rates with limitations as to such liability. With respect to steamship tickets and the limitations printed thereon the courts, from Steers v. Liverpool, N. Y. & P. Steamship Co. (57 N. Y. 1) to Tewes v. North German Lloyd S. S. Co. (186 id. 151), have uniformly held that the stipulation upon a ticket hunting liability for baggage was binding whether the passenger read it or not. The reason for such holding is stated in the Steers case as fqllows: “ Looking to the course of business, the court may take notice that an engagement for a voyage across the ocean is a matter of more deliberation and attention than buying a railroad ticket or taking an express company’s receipt for baggage or for freight. There is, therefore, no room in such a case for the suggestion that the party is surprised into' a contract when he supposes himself only to be taking a token indicative of his right. The paper in evidence ought, therefore, to be regarded as having received the mutual assent of the parties, and as being, as its language purports, their contract touching the voyage in question.” Eeceipts given by transfer companies in exchange for baggage checks on railroad trains and at terminals are more analogous to the present situation than any other transaction with which the courts have had to deal. In Blossom v. Dodd (43 N. Y. 264) a passenger in a dimly-lighted car had delivered his checks to a transfer messenger and received in exchange a card upon which there was printed a limit of liability in case of loss of baggage. It was held that the card was a mere token in exchange for baggage checks and was not of such a nature as *524to put a person on his guard with respect to any memorandum printed thereon, and the persons receiving them were not presumed to know their contents or assent thereto.' That case is commented upon in Kirkland v. Dinsmore (62 N. Y. 179) and in Mills v. Weir (82 App. Div. 398) and in Morgan v. Woolverton (136 id. 351) and followed in Madan v. Sherard (73 N. Y. 329) and in Grossman v. Dodd (63 Hun, 324; aifd., 137 N. Y. 599) and in Springer v. Westcott (166 id. 117).

In Mills v. Weir (82 App. Div. 396, 398), which held that a shipper was bound to read the receipt given him by the express company and was bound thereby, Bartlett, J., points out the difference between such a receipt and one given by a baggage transfer company, and says: “The cases of Blossom v. Dodd (43 N. Y. 264), Madan v. Sherard (73 id. 329) and Springer v. Westcott (166 id. 117) decide nothing in conflict with the views which I have expressed in reference to the effect of the acceptance of the receipt in the case at bar. In the Blossom case the paper was given to the plaintiff in exchange for his baggage checks in a train late at night, was illegible in the existing light, was unsigned in fact, and had no appearance of being a contract. As was said of these facts in Kirkland v. Dinsmore (supra): ‘ The circumstances in that case repelled the idea of a contract. The plaintiff received the card or ticket under circumstances indicating to him that it was given merely for his convenience and protection to enable him to identify the baggage on delivery, and that he might know in whose possession it was.’ In the Madan case the circumstances under which the receipt was given were very similar. In the Springer case the receipt was handed to the passenger folded up, and the express messenger did not tell her nor did she know what it contained. All three cases related to papers given in exchange for baggage checks to travelers in railway trains, and they go no further than to decide that the contents of such papers cannot be deemed binding upon the traveler unless delivered to him under such circumstances as to constitute notice of their character. The distinction has often been pointed out between these baggage express cases and the shipment of articles by an ordinary express company, whose agreement of transportation is rarely *525oral, but almost invariably found in its receipt; and it is a distinction which renders the baggage express cases inapplicable as authorities to the facts of the case at bar.”

The same line of reasoning is followed in Morgan v. Woolverton (supra). In Grossman v. Dodd (supra) it was held that the burden rested upon the bailor attempting to limit his liability by contract to show that the bailee assented to the terms of the receipt.

It, therefore, was entirely competent for the defendant even to contract against its own negligence or to contract for a limited liability. But in order to relieve itself from liability beyond the stipulated sum of ten dollars the defendant must show that the bailor actually or impliedly agreed to the contract, which in the present case it failed to do.

The business of checking hand baggage at railway stations has become a large and important one. It seems to me that any one in the ordinary' course of business, checking his baggage at such a place would regard the check received as a mere token to enable him to identify his baggage when called for, and that in no sense would he have any reason to believe that it embodied a contract, exempting the bailee from liability or limiting the amount thereof. If the plaintiff knew that the defendant had limited its liability to ten dollars, either by his attention being called to it or otherwise, then, of course, the law would deem him to have assented to it so that a binding contract would be effected. If he did not know it, I think the law imposed no duty upon him, to read his check to find whether or not there was a contract printed thereon, or that he was guilty of neglect in not so reading it for he had no reason to apprehend that a contract was printed thereon.

On this ground I think the plaintiff was entitled to recover the full value of his bag and its contents irrespective of the Warehouse Law, and it is upon this ground alone that I assent to an affirmance of the judgment.

Judgment unanimously affirmed, with costs.