(78 Hun, 365.)

#### SPRINGER v. WESTCOTT.

(Supreme Court, General Term, First Department.

May 18, 1894.)

Carriers—Loss op Goods—Limitation op Liability.

In an action against an express company for goods lost while in <Jefendant’s hands for transportation, a provision of the receipt given *by*defendant for the goods, limiting the amount of recovery therefor in case of loss, is binding on plaintiff where the receipt is introduced by plaintiff for the purpose of establishing her case.

Appeal from circuit court, New York county.

Action by Hannah Springer against Robert E. Westcott, as president of the Westcott Express Company, to recover a trunk and contents alleged to have been lost by defendant. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Reversed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ. .

A. G. Fox, for appellant.

B. F. Einstein, for respondent.

VAN BRUNT, P. J.

This action was brought to recover the value of the plaintiff’s trunk and the contents upon allegations in the complaint that the defendant was an unincorporated association consisting of seven or more persons or associates, and that the defendant, Westcott, was the president thereof; that the business of said association was that of a common carrier of baggage for hire, and that it conducted the business commonly known as an “express company” in and about the city of New York; and that on the 14th day of September, 1889, the plaintiff caused to be delivered to said association, and said association received, her' trunk and its contents, at the Grand Central Depot in the city of New York, and then agreed to convey the same, for a reasonable compensation, to a place named in the city of New York, and there deliver the same to the plaintiff; that the contents of said trunk consisted of baggage belonging to the plaintiff, and were of the value of $2,000 and upward; and that the said association omitted to convey said contents, and has never delivered the same to the plaintiff. The defendant, by the answer, denied the allegation of receipt and failure to deliver, and alleged that the plaintiff promised and agreed with defendant that she should deliver to it her trunk containing her wearing apparel, such trunk and wearing apparel not to exceed in value *150.$100; and that, if said plaintiff would so deliver to defendant, the defendant would carry and deliver the same to the place named in the complaint; and that such agreement was upon the terms and conditions of a written contract annexed to the answer. The defendant further alleged that the plaintiff failed to deliver said trunk to the defendant at said station or at any other place. The plaintiff, to sustain the issues on her part, introduced evidence tending to show the value of the contents of the trunk, and the delivery to the agent of the defendant, upon a train of the New York Central Bail-road, of a check which she had received from the railroad company at Troy; that at the time of the delivery of such check she received a receipt therefor, which receipt contains a limitation of liability to an amount not exceeding $100; and that, several days after, the trunk was delivered without any of its contents.. The issues of fact being submitted to the jury, they rendered a verdict in favor of the plaintiff; and from the judgment entered upon such verdict, and from an order denying a motion for a new trial, this appeal is taken.

Various grounds are urged as error upon the part of the court in the trial of the cause. It is claimed upon the part of the appellant that there was no evidence to show that the defendant received the trunk on Saturday night, and, furthermore, that there was no evidence to show that the trunk was put upon the train at Troy, and therefore that the court erred in charging the jury that, if the defendant received the trunk Saturday night, then it was liable from Saturday night. From an examination of the evidence it will be seen that this objection is not well taken, and that the court was entirely correct in its assumption that the defendant did receive the trunk on Saturday night. John H. Green, the agent of the defendant who collected the checks upon the train, admitted the signature to the receipt, and stated that he got the check. He further stated that he passed it in to the Grand Central Depot upon the same night, and that he did not give up the check without finding the baggage. This evidence is further confirmed by the testimony of the driver, Cavanagh, who says that he got the trunk on Tuesday morning, and, when he got it, he found that it had already been labeled by the express company; clearly showing that the trunk had been in the hands of the defendant long before Tuesday morning, and that the evidence of Green that it had been received on Saturday night was correct, and that that was probably the time at which the trunk reached" the defendant.

It is further claimed that the court erred in refusing to charge that the burden of proof was upon the plaintiff to show the circumstances attending the transportation of the trunk from the Troy House to the station of the railroad company at Troy. It is perfectly clear that this exception is not well taken. The husband of the plaintiff checked the trunk at Troy. It was then in good order. "When it was delivered at the plaintiff’s house it was covered with dirt, muddy, the lock broken, the straps were hanging out, some of the compartments of the trunk had been taken out, and the trunk was almost empty. That this was not the condition of the trunk *151when it was received by the defendant is evidenced by the testimony of Oavanagh, the expressman, who says, in answer to the question:

> “Q. Was the trunk all covered with mud when you found it in the Grand Central Depot? A. It might be possibly soiled, more or less, from actual use, or the like of that. Q. Was there any mud or dirt on it? A. I don’t remember. Q. Were the straps broken? A. To the best of my knowledge (it is so long ago), I don’t think there were any straps on it. Q. Was the lock broken? A. No, sir.”

It is true that this witness swore that he delivered the trunk in the same condition that it was when he received it. But it is manifest from the testimony of the plaintiff and her witnesses that such was not the case. It appears from the evidence of the defendant’s witness that there was nothing suspicious about the appearance of the trunk at the time it was received by the defendant, whereas it was in a dilapidated condition when it was delivered to the plaintiff.

The only other question which is not disposed of by the foregoing suggestions is as to the refusal to charge the request that in “no event can the plaintiff recover more than one hundred dollars.” As a part of the plaintiff’s case, in order to establish the receipt by the defendant of the trunk in question, and to establish the contract of carriage, the plaintiff introduced a receipt which was signed by the agent of the defendant at the time of the delivery of the check, which contained a limitation of liability by reason of negligence, or otherwise, to an amount not exceeding §100. It is urged upon the part of the respondent that no error -was committed in the refusal to charge this request; that this request was not relied upon by the defendant upon the trial of the case; and that the defendant waived its rights, if it had any, under it. We fail to find any such waiver in the record. The receipt was introduced in evidence by the plaintiff; and the request to charge seems to have been duly made and drily excepted to. It is true that the court made charges to the jury which were inconsistent with this and other requests, and that no exceptions were taken to these portions of the charge. But there were express exceptions taken to the refusal to charge the request in question, which was contradictory to the propositions submitted to the jury. We understand that under such circumstances the defendant has a right to insist upon his point because of the refusal to charge, although he may not have excepted to the charge as made in so many words.

It is further urged that the request was too broad; that it was that “in no event can the plaintiff recover more than one hundred dollars;” and that this, if charged, would have prevented the jury from finding for the plaintiff if the loss was occasioned by the misfeasance of the defendant or its agents, which finding would be justified by the evidence, and, conceding the existence of the contract, the defendant was not exempted from liability for such loss by the terms of the contract. This, we think, is placing an erroneous construction upon the request in question. There was no attempt to recover against this defendant upon the ground of mis*152feasance, but simply because of a breach of its contract as carrierp the contents *of*the trunk of the plaintiff being lost while in its custody, through its negligence. It was in view of this position of the plaintiff that this request was made; and -its fair construction seems to be—and, in view of the nature of the charge of the court, was evidently understood to be—that no larger recovery could be had because of this contract.' This case is presented in a different aspect from those cases in which it has been held that, without showing knowledge of the restriction, the contract would not be binding, because the plaintiff has introduced the contract herself,, has endeavored to establish her case partially upon that contract, and cannot repudiate part of the contract, and claim the benefit of other parts of it. Therefore, when the plaintiff introduced this contract for the purpose of establishing her case, she' became liable-to all the terms of the contract, and the defendant was entitled to-the benefit thereof. The suit appears to have been brought upon this contract, and not in tort for a wrong committed. In this state-of the record, much as we regret so to do, because we think justice has been done by the verdict, we are compelled to reverse the judgment, and the order denying motion for a new trial. The judgment and order should be reversed, and a new trial ordered, with costs to the appellant, to abide the event. All concur.