#### Carrie T. Colvin, Respondent, *v.*James C. Fargo, as President of the American Express Co., Appellant.

(Supreme Court, Appellate Term,

June, 1905.)

Carriers — Carriage of goods — Limitation of liability — Assent of shipper — When not presumed — Shipper’s negligence in not reading receipt.

Plaintiff delivered to defendant, an express company, check» for three trunks to be transported from the place where they then were and delivered to her at another place, and received a printed receipt, in 'the usual form, containing a provision limiting defendant’s liability to fifty dollars; and, at the same time, was asked by defendant’s agent if she wished to declare extra value for so short a distance, to which she made no reply, not, it seems, understanding the question, but looked at the receipt and folded it up without reading it. Held:

*643That plaintiff’s omission, to read the paper was not *per se*negligence; and the question, whether the minds of the parties met and a contract limiting liability was actually made, was to be determined by the jury; and they having found for the plaintiff, their verdict should not be disturbed.

Part of the goods lost and covered by the verdict belonged to plaintiff’s daughter and were in plaintiff’s possession as her bailee. Plaintiff paid the express charges and delivered the trunk containing them to the defendant as her bailee, on consignment to herself. Held:

That plaintiff was entitled to recover therefor.

Scott, J., dissented.

Appeal by the defendant from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, eighth district, borough of Manhattan.

Carter, Ledyard & Milburn (Charles M. Sheafe, Jr., of counsel), for appellant-.

William C. Reddy, for respondent.

Dowling, J.

On November 14, 1904, the plaintiff called at the office of the defendant express company, at No. 81 Dey street, in the city of New York, and gave its agent three baggage cheeks representing three trunks then lying at the depot of the Jersey Central railroad, foot of Liberty street (over which route she had just come to this city), for the purpose of having the same delivered to an address then given by her. She received a receipt therefor in the usual printed form issued by defendant, and at the time she was asked by its iagent if she wished to declare extra value for so short a distance, to which she made no reply. By said receipt, defendant’s liability was limited to fifty dollars, unless an extra charge was paid for the service, based on a higher value. After apparently looking at the receipt and paying the ordinary charge of forty cents for each trunk she kept the receipt and left the defendant’s office. Two of the trunks were delivered; the third was lost. Proof was given that there was property belonging to plaintiff in the trunk lost, of the value of forty-nine dollars and fifty cents; and be*644longing to her daughter, of the value of three hundred and eleven dollars and fifty cents. Judgment was rendered for plaintiff for the sum of three hundred and fifty dollars and costs, from which defendant appeals. The contention of defendant is, firstly, that the receipt in question constituted a contract between plaintiff and defendant whereby the lat'ter’s liability was limited to fifty dollars; and, secondly, that plaintiff cannot recover more than forty-nine dollars and fifty cents, the value of the goods belonging to her contained in the lost trunk. As to the first contention, the testimony discloses that there was a clear-cut issue of fact upon the trial. The plaintiff testified that when she handed her three baggage checks to the express agent in the Dey Street office, he :said to her: *“I*don’t suppose you want any extra value on these as they are only going to Twenty-third street,” to which she made no reply; that she did not understand his question; that she did not look at the receipt at the time; that she was in a great hurry to leave the office as her daughter was waiting outside for her and it was a cold day; that she folded up the receipt, put it in her pocket-book and left the office at once; that she did not read the receipt until after the trunk was lost. The express agent testified that he said to plaintiff, “I suppose you don’t wish to declare any excess value,” and looked at her waiting for an answer, but she made no reply; that when he gave her the receipt she took it, looked at it for thirty or forty seconds and slowly folded it up after having apparently read it, although he did not know whether she actually read it or not. The question of whether or not the contract limiting liability was actually made, and whether it was an agreement upon which the minds of the parties met, was submitted1 to the jury by the learned court below in a full, fair and correct charge. The jury found for the plaintiff. The distinction between so-called “ baggage cases ” and *“*freight cases ” is well established. Bernstein v. Weir, 40 Misc. Rep. 635. This case comes clearly within the former category and the controlling rule was laid down in Grossman v. Dodd, 63 Hun, 324; affd., 137 N. Y. 599: “ In view of the numerous dezisions, we may regard the law as settled that1 a common car*645rier has the right to limit his common law liability by express contract, shielding him from damage occasioned even by his own negligence and that of his servants. But, as stated in Madan v. Sherard (73 N. Y. 329), where a traveler, on delivery of baggage to a local express company, receives a paper which, from the circumstances of the transaction, he has a right-to regard simply as a receipt or voucher to enable him to follow and identify his property, and no notice is given to him that it embodies the terms of a special contract, or is intended to subserve any other purpose than as a voucher, his omission to read the paper is not *per se*negligence, and he is not, as matter of law, bound by its terms. The question whether, in a particular case, the party receiving such a receipt accepted it with notice of its contents, or with notice that it contained the terms of a special contract, so as to require him to acquaint himself with its contents, is one of evidence to be determined by the jury. It will thus be seen that no such contract arises, as a matter of law, from the acceptance of the receipt, but the defendant, in order to relieve itself from full liability, is bound to establish a contract.” To the same effect are the cases of Strong v. Long Island R. R. Co., 91 App. Div. 442; Springer v. Wescott, 166 N. Y. 117; Zimmer v. N. Y. C. & H. R. R. R. Co., 137 id. 460. In these cases a printed paper was given, variously denominated, (Receipt,” “Domestic Bill of Lading,” or some similar term, and containing a clause, limiting liability in practically identical terms with the receipt in question. The jury upon the facts found for plaintiff and there is no reason for disturbing the finding here. As to the second contention, plaintiff was lawfully in possession of the goods subsequently lost; as to part of them as owner; as to the remainder as bailee for her daughter. She paid the express charges and delivered the trunk with all its contents to the defendant as her bailee, on consignment to herself. In Green v. Clarke, 12 N. Y. 343, Chief Justice Gardiner said: “ It is a general rule that a bailee having a special property and the general owner may either of them sustain an action for the conversion of or an injury to property in which they are interested. The right to sue is in*646dispensable to enable each to protect his particular interest, but as the law will not suffer a defendant to be twice harassed for the same cause, only one suit can be brought and it will be a bar to every other.” So also in Swift v. Pacific Mail Steamship Co., 106 N. Y. 206, it was held, that while the general rule was that an action against a common carrier for breach of his duty to carry or of a contract must be brought in the name of the owner of the goods although the contract may have been made or the goods shipped by another, still that where the consignor, although not the general owner, had a lien upon or a special interest in the goods and made the contract and paid the consideration for their carriage, he might bring the action for the breach of the contract in his own name. Here the plaintiff, bailee as to such goods belonging to her daughter as were in the former’s trunk when lost, had made the contract for carriage and paid the consideration therefor, and is entitled to recover. 5 Cyc. 210.

Judgment affirmed, with costs.

Truax, J.

(concurring). I think that the words used by the defendant’s agent, “ I don’t suppose you want any extra value on these as they are only going to Twenty-third street,” were sufficient to put the plaintiff off her guard, and that they did not give plaintiff notice that the voucher embodied a special contract, or that it was intended to serve any other purpose than as a voucher. And that, therefore, her omission to read the voucher was not *per se*negligent, and she was not as a matter of law bound by its terms.

The questions of fact were left for the determination of the jury, and I am in favor of affirming the verdict.

Scott, J.

(dissenting). In my opinion the judgment cannot be sustained. The clause in the receipt limiting the defendant’s liability unless value was stated, was printed on the face of the document and italicized by the use of black-faced type. The plaintiff was expressly asked whether slie wished to declare extra value and made no reply. The room in which the transaction occurred was sufficiently light *647to enable her to read the receipt^ and she did in fact hold it in her hand and look at it before leaving the office. It seems to me that the defendant did everything it could reasonably be expected to do, to call plaintiff’s attention to the ■clause in the contract limiting its liability. All that can be said is that plaintiff did not know that the contract contained the clause, because, although offered every opportunity to do so, she neglected to read it, or even to examine it closely enough to notice the words printed in italics. The mere fact that, owing to her own neglect, she did not in fact know that the contract limited defendant’s liability, is not •sufficient to charge the defendant with any value exceeding the specified amount. Kirkland v. Dinsmore, 62 N. Y. 171-178; Bernstein v. Weir, 40 Misc. Rep. 635-639. The circumstances attending the giving of the receipt do not bring •this case within the line of cases known as “ baggage cases,” in which, as was said in Bernstein v. Weir, *supra,*the traveler receives something in, the nature of a check or voucher for his baggage, usually under circumstances where he is -offered no choice but to take whatever is given him, and no opportunity to observe that it is in the form of a contract. On the contrary, in this • case the transaction was made deliberately in defendant’s office, and full and ample opportunity wyas given to plaintiff to examine the receipt given to her. Unless we are prepared to hold that a person may avoid the terms of a. contract by willfully or negligently refusing to •avail himself of a fair opportunity to learn its contents, I cannot see how this judgment can be sustained.

The judgment should be modified by reducing it to fifty ■dollars, with the appropriate costs in the court below, and as modified be affirmed, without costs in this court.

Judgment affirmed* with costs.