#### Harry Rapp, Plaintiff, *v.*The Washington Storage Warehouse and Van Company, Defendant.

(City Court of the City of New York, Trial Term,

December, 1911.)

Warehousing: Warehouse receipts — Construction: Care and protection of property—.Limitation of liability: Actions against warehouseman— Instructions. •

In an action against a storage company for .negligence in failing to return certain laces which the complaint alleged were packed in a- drawer of a.sideboard stored with defendant to the knowledge of defendant or its agents and locked on delivery of the goods to defendant’s servants, it appeared that three separate writings sent or given by defendant at one time or another to plaintiff were in his possession. The. first recited “The responsibility of the warehouse for any piece or package is limited to $50, unless the value thereof is made known at the time of the storing and receipted for in the warehouse receipt;”, the second, the warehouse receipt which was mailed to plaintiff after the reception of the goods to be stored, recited *“*The responsibility of the warehouse is limited to $50 for any article together with the contents,” and the third, the.order from plaintiff to defendant to return the stored goods to plaintiff’s home, recited “The responsibility of the warehouse is to continue in full force and effect and upon all conditions and limitations as provided in the terms of the warehouse receipt until the delivery of the goods by warehouse vans.” Held:

From the several writings the relative lights of the parties were to be determined and nothing therein was sufficient to relieve the defendant from the consequences of its own negligence*

The limitation of defendant’s responsibility to’ $50, as recited in the several writings, was binding upon the plaintiff.

A charge to the jury limiting the plaintiff’s recovery to $50, though the value of the goods taken was much greater, was proper, and a motion -to set aside the verdict on the ground that the court erred in so charging will be denied.

Motion-to set aside verdict and for a new trial.'

Charles L. Hoffman, for plaintiff.

Taft & Sherman, for defendant.

*17Green, J.

This is a motion made by plaintiff to set aside a verdict rendered in his favor for the sum of fifty dollars upon the ground of the error of the court in charging the jury as to the limit of plaintiff’s recovery in the action. The action was brought against the defendant upon the ground of negligence in the alleged failure of the0 defendant to return certain articles, consisting of laces, which plaintiff claims were packed in a drawer of a sideboard with the knowledge of the defendant or its agents. The court in its charge to the jury limited the plaintiff’s recovery to- the amount of fifty dollars, though the evidence showed the value of the goods alleged to have been taken was- some hundreds of dollars in amount. The basis for the limitation of liability is contained in three separate writings, which were concededly in the possession of the plaintiff, having been sent or given by the defendant at one time or another to the plaintiff during the period covered by the transaction. The first paper or writing may be designated as an order to defendant to call for the goods, and that portion -material to 'this discussion reads as follows: “ The responsibility of the warehouse -for any piece or package is limited to $50, unless the value thereof is made known at the time of storing and receipted for in the warehouse receipt.” The-second paper or writing was the warehouse receipt mailed to plaintiff -after 'the receipt of the goods by defendant, in language as follows: “The responsibility of the warehouse,is limited to $50 for any article, together with the contents.” The third writing was what might be termed an order from plaintiff to defendant to return the goods from storage to plaintiff’s home, and the phraseology of the sentence or clause therein contained pertinent to the question under consideration is: “ The responsibility of the warehouse is to continue in full force and effect and upon all conditions and limitations as provided in the terms of, the warehouse receipt until the -delivery of goods by warehouse vans.” These pro visions are the only ones relating to a limitation of defendant’s liability to the plaintiff, and by them must be determined the relative rights of the parties to this litigation. The" question presented is: Does the language of the papers *18or writings hereinbefore mentioned, which form the contract between the parties,. limit plaintiff’s recovery to $50 where the right .of action arose on account of defendant’s negligence ? It is no longer open to discussion in this State that a common carrier has the right and may legally limit his liability for his own negligence. Tewes v. North German Lloyd SS. Co., 186 N. Y. 151. See also Bench and Bar, April, 1907, p. 11. It is now equally well settled, however, that to limit the liability of a defendant on account of his own negligence the language must he explicit, and that the inference is against that result. See Jennings v. Grand Trunk R. Co., 127 N. Y. 438, 450 ; Kenney v. N. Y. C. R. R. Co., 125 id. 422, 425; Mynard v. Syracuse, B. & N. Y. R. Co., 71 id. 180, 183-185; Nicholas v. N. Y. C. *&*H. R. R. R. Co., 89 id. 370, 372. The latest expression of opinion upon this question is to the effect that “ general words -in a contract of carriage are not sufficient to release a carrier from the consequences of its negligence. If such a result is intended, it must be expressly provided for in the contract;” Brewster v. N. Y. C. *&*H. R. R. R. C., 145 App. Div. 51, and cases cited. See also, 100 N. Y Supp. 603. Such, I am of the opinion,- is the law of this State to-day upon -the questions herein involved. If such is the construction'placed by law upon the contracts of common carriers, I see no reason, in view of the authorities, to withhold such interpretation upon the contracts of others who are desirous of limiting their liability. The defendant is a warehouseman and maintains a large establishment for the storage of goods, and the court may take judicial notice of the fact of the relative • importance of such a business to householders who may be desirous of storing their goods and chattels, in a large city such as this of ours. Examining the language of the contracts herein-before referred to, in the light of the authorities, *swpiu,*it becomes evident that nothing therein' contained is sufficient to relieve" the defendant from the consequence of- its own negligence, so that I am of the opinion the defendant would be responsible' for its negligence to the plaintiff. There remains, then, but one question for further consideration, and that is: Does the phraseology of the contract justify *19the construction of a limitation upon the amount to which defendant may be held liable in damages for its negligence ? I confess that I am .not in sympathy with the conclusion at which I am forced to arrive by an examination of the authorities upon the question of limitation of liability for negligence (cases, supra); rather do I believe that the criticism of Hr. Justice Haight, in his dissenting opinion in the case of Tewes v. North German Lloyd S. S. Co., 186 N. Y. 161, applied to common carriers, and which may be with equal logic applied to bailees for hire other than common carriers, states the real objection to the law as now settled, which permits a limitation of liability for negligence. Hr. Justice Haight says: “ If common carriers of persons and property are to be relieved from liability for their acts of negligence, then they .are no longer under legal obligation to exercise any care or caution with reference to property delivered into their custody for transportation. They may leave it in dangerous or unguarded places, subject to the action of thieves or to injury by reason of storms. They may dump it wherever the whim of a careless or reckless employee may suggest or find most convenient for his purpose. * * * It is not reasonable to suppose that the party intended to .contract that a bailee for hire might with impunity be careless and remiss in the discharge of the trust reposed in him. If such a result is intended it must be so stated expressly and unequivocally in the contract. General words are not sufficient.” The order for the defendant to call for the goods contained the statement: “ The responsibility of the warehouse for any piece or package is limited to fifty dollars, unless the value thereof is made known at the time of storing and receipted for in the warehouse receipt.” *No*value in excess of fifty dollars was shown on the warehouse receipt which was afterward sent to the plaintiff, and the order to return the goods continued the warehouse receipt in full force until the delivery of the goods by defendant’s vans. The acts and conversations leading up to the storage of the goods must be considered deliberate acts, not analogous to “ baggage cases,” where the receipt is held to be a token rather than a receipt, ■ and I am of the opinion that plaintiff *20is bound by the limitation of -the responsibility of the defendant mentioned in the order, to wit, fifty dollars. The subject of this action consisted of laces which plaintiff claims she deposited in one of the drawers of the sideboard and which she locked when she' delivered the goods to the defendant’s servants.' Plaintiff’s counsel claims that -'the order to call for the goods limits the responsibility to0 fifty dollars to any *“ piece ”*or *“*package,” and that the laces consisted of many pieces, none of which is alleged to have cost more than fifty dollars, so that plaintiff would be entitled to recover. The difficulty with 'that proposition lies in the fact that the warehouse receipt must also be taken into consideration in this case as forming part of the contract, and tha't provides for a limitation of liability to fifty dollars “ for any article, together with the contents,” and, furthermore, I believe plaintiff’s contention to be a strained construction of the word “ piece ” as used by defendant, and rather should be construed to mean an individual' article with separate individual identity at time of storage, and not a concealed portion contained in a whole. After reviewing the evidence in this case, which is clear in the. mind of the -court, and after examining the briefs of counsel, I am of the opinion that the limitation of plaintiff’s recovery against the defendant to the sum of fifty dollars was justified, and that no erroy was committed by the court in so doing. I repeat that I am not in sympathy with this conclusion, but I am concluded by what I believe to be controlling principles and authorities, and for 'that reason the motion to set aside the verdict and for a new trial is denied.

Motion denied.