Lelia A. Morgan, Respondent, v. William H. Woolverton, as President of the New York Transfer Company, Appellant

Lelia A. Morgan, Respondent, v. William H. Woolverton, as President of the New York Transfer Company, Appellant. Second Department, January 14, 1910. Carrier — liability for loss of baggage — special contract limiting liability — lack of knowledge of limitation by person offering baggage — application of section 38 of chapter 439 of the Daws of 1907. A mere delivery by a carrier of a receipt for baggage containing a special contract limiting liability and the acceptance thereof by the owner of the baggage does not of itself make the limiting clause part of the contract. It is a question of fact in each case whether the acceptance was with notice of the contents of the receipt, or notice that it embodied a special contract so that the acceptor should have made himself acquainted therewith. The burden of establishing such special contract is on the carrier. Where a passenger on a railroad train received from, the agent of an independent transfer company a receipt for baggage to be delivered at her residence, and the agent departed without stating that it contained a clause limiting the carrier’s liability to §100, or that the carriage was on special terms, and without any request that she note the contents or inquiry as to whether' she assented thereto* the carrier on failing to deliver the baggage is liable for its full value. Under the circumstances the owner of the baggage was not negligent per sé in failing to read the receipt. Section 38 of chapter 439 of the Laws of 1907, limiting the'liability of common carriers for loss of baggage to $150 unless the owner states, a value in excess thereof so that the carrier can make an extra charge, applies only to carriers who transport baggage without charge in connection with carrying the owner. It does not apply to a carrier engaged solely in transporting baggage. Appeal by the defendant, William H. Woolverton, as president, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of June, 1909, pursuant to an order entered in said clerk’s office on the 19th day of May, 1909, which set aside the verdict of a jury rendered by direction of the court subject to the opinion of the court; also from an order entered in said clerk’s office on the 27th day of May, 1909, denying the defendant’s motion for a new' trial made upon the minutes, and also from the said-order setting aside the verdict and directing judgment in favor of the plaintiff. John L. Hill, for the appellant. • Herman Aaron [John Hill Morgan with him on the brief], for the respondent. [MAJORITY — Jenks, J.:] Jenks, J.: The plaintiff, when a passenger, on a railroad train, delivered a ■ check for her trunk to an agent of the defendant on that train, who undertook to take over the trunk from the railroad company and to deliver it at an address given by the plaintiff. The defendant failed to do so,, and the plaintiff has recovered a judgment of $1,200 for the contents of the trunk. At the close of the case the defendant moved for a direction of a verdict for the plaintiff, both for $100, and, whén defeated, for $150, on the ground that either one or the other, amount represented the full liability of the defendant irrespective of the value of the trunk and its contents. The plaintiff moved for a verdict also. The court directed a verdict for the plaintiff in the full amount of her claim, subject to its opinion, and thereafter set aside such verdict and gave judgment for the plaintiff. The contention that the limit of liability is $100 rests upon the proposition that there was a special contract for such limitation in that the receipt given to the passenger by the defendant and accepted by her when she gave up her check contained such contract, In this State it is settled that the mere delivery and acceptance of such a receipt wherein is embodied a special contract does not constitute such a contract. But a question of fact in each case is whether such acceptance was with notice of the contents of the receipt or that it embodied the special contract, so that the acceptor should have made himself acquainted with the contents of the receipt or with its terms of special contract. (Madan v. Sherard, 73 N. Y. 329 ; Grossman v. Dodd, 63 Hun, 324 ; affd., 137 N. Y. 599 ; Springer v. Westcott, 166 id. 117.) The burden of establishing the special contract is upon the carrier. (Grossman v. Dodd, supra.) At the close of the case the defendant disavowed any question of the credibility of the plaintiff, and although the learned counsel for the plaintiff pointed out that the question of her knowledge, was for the jury, the defendant did not recede, but moved for a direction of a verdict for the plaintiff to be limited as aforesaid. The evidence before the court was that the plaintiff testified that she had received in exchange for her cheek the receipt which embodied a special contract of limitation of liability from the defendant without explanation of its contents, without conversation which indicated that the carriage was on spécial terms, without request that she note the contents, without inquiry whether she assented to the terms thereofthat as soon as'the agent delivered the receipt he passed on about his business; that she did not read the receipt, but merely glanced at it to see that it. contained a number, and then put it away in her pocketbook, and that she did not know of the contents thereof, but thought it was but a voucher for her trunk. This evidence was undisputed, and, as I have said, the defendant did not raise any question of the plaintiff’s credibility. The learned counsel for the appellant would discriminate this case, in that the evidence is that she could have read the receipt, whereas a feature in Blossom v. Dodd (43 N. Y. 264) and Madan v. Sherard (supra) was practical inability to read it. But the omission to read the receipt under such circumstances as marked the delivery thereof was not negligence perse (Grossman’s Case, supra ; Madan's Case, supra), it merely bore upon the “ ultimate fact to be proven, that the party, when he accepted the receipt, knew of its limitations, or that it contained special terms for the carriage of the property.” (Madam’s Case, supra, 335.) The learned, counsel for the appellant argues that the reasoning in Magnin v. Dinsmore (56 N. Y. 168) is that the plaintiff was bound to read. But in that case the question presented arose upon the shipment of articles by an express; company. And in Mills v. Weir (82 App. Div. 396), which dealt with á contract similar to that in the case at bar,^ we said, per Willard Bartlett, J.: “ 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 oral, but almost invariably found in its receipt; and it is a distinction which- renders the baggage express easesj inapplicable as’authorities to the facts of the case .at bar.” I think.that the conclusion that the.special contract did not -control was justified by the evidence. (Authorities supra) The contention that the liability of the defendant was limited to $150 rests upon certain provisions of section 38 of chapter 429 -of the Laws of-1901, which read as follows: “ Every common carrier and railroad corporation- shall be liable for loss, damage, and' injury to property'carried as baggage up' to the full value and regardless of the character thereof, but the value in excess of one hundred and fifty dollars shall be stated upon delivery to the carrier, and a written receipt stating the value shall be issued by the carrier, who may make a reasonable charge for the assumption of such-liability in excess of one hundred and fifty dollars and- for- the carriage of baggage exceeding one hundred and' fifty pounds in weight upon a single ticket.' Nothing in this .section shall deprive, any holder of such receipt or bill -of lading of any remedy Or' right of action which he has under existing law.” Although this property may' be described aptly as baggage in that it- was not merchandise but mere belongings for the personal, necessity, use or convenience of "the owner, it was not carried as baggage by the- defendant within the contemplation of this provision. The distinction is well expressed in the language of the learned counsel for the respondent: “The sentence refers not to the inherent character of the property itself but to the character in which it is being transported by the carrier. It refers to classification and not to kind.” The undertaking of the defendant • was to carry only these belongings of the plaintiff by virtue of payment for that carriage alone. The plaintiff was a passenger so far as concerns the railroad corporation which carried her and these belongings by virtue of its contract, which contemplated its carriage of both person and her personal property known as baggage or luggage, but so far as the defendant is concerned she was but the owner of this property which the defendant undertook to demand for her from the.railroad company and to carry and to deliver it at her direction. It did .not undertake to ca.rry her property, or any of it, upon a single ticket or by virtue of any ticket or perforce of the fact that she had been a passenger on any railroad. I think that this provision deals only with the liability of a carrier' for belongings of a person, which are commonly known as baggage or luggage, to whom it has furnished a ticket as an undertaking that it will carry both that person as its passenger and also a certain amount of the passenger’s baggage. That this provision has its limitations is indicated by the final sentence thereof. The judgment is affirmed, with costs.. Present — Hirschberg, P. J., Woodward, Jenks, Thomas and Rich, JJ. Judgment and orders unanimously affirmed, with costs.