Rosenthal v. . Weir , 170 N.Y. 148 ( 1902 )

I concur in the result on the ground that the trial court might on the evidence have found that the plaintiffs were not notified at the time of shipment of the conditions and limitations prescribed in the receipt nor asked the value of the goods. (Springer v. Westcott, 166 N.Y. 117.) I dissent, however, from the view that the provision of the receipt limiting the liability of the carrier to the sum of fifty dollars unless the value of the goods is declared does not apply to a claim of the character of that now before us. This condition is not similar to those often found in contracts for shipment by which it is sought to relieve the carrier from the consequences of its own negligence and fault, provisions which the court so strictly construe against the carrier and the effects of which they are so astute to avoid, that it may be doubted whether it would not be better even for the carrier were they held void as against public policy, which is the law in many jurisdictions. The limitation under consideration is fair and reasonable. Not only is the compensation for carriage based on the value of the goods, but the care and attention given by the carrier and his servants is necessarily influenced and affected by the knowledge that the goods are of great or of little value. Concealment of value, though without any improper motive on the part of the shipper, is, therefore, considered an imposition on the carrier and relieves the latter from liability in excess of the stipulated amount "unless something more in its conduct is shown than negligence to carry safely and to deliver promptly." (Magnin v. Dinsmore, 62 N.Y. 35.) Contracts of this character should be upheld and construed as fairly as other contracts. (Hart v. Penna. R.R. Co., 112 U.S. 331.)

The action is for negligence. Defendant's line did not extend to Dallas, but ended at Kansas City, and the delivery complained of was made by the connecting company. Therefore, there was in fact no conversion by the defendant, but its fault lay in its failure to properly notify the connecting carrier. The action was, therefore, necessarily brought in its present form and not for conversion. The right of stoppage in transitu, as the term indicates, springs out of the contract of transportation. It exists only where the possession is in a person employed to forward or transport the property to its destination and it ends with delivery at the termination of the transit. (Harris v.Pratt, 17 N.Y. 249.) The right of the shipper to stop the delivery is absolute "and the carrier is bound to obey, leaving the justification of the stoppage with the seller as concerns the sale parties, since the due exercise of this right is at the seller's and not the carrier's peril." (Schouler on Personal Property, § 565.) The right of stoppage in transitu is, therefore, a necessary incident of the contract of carriage, and though it may be that after notice of its exercise the strict liability of the carrier ceases and it thereafter becomes responsible only as a warehouseman, which is the case where the consignee fails to accept the goods, still the relation of warehouseman is contractual, and in either case the carrier assumes that relation solely by the virtue of its original contract of carriage. In other words, when a carrier contracts to carry it also contracts to stop the goods or to hold them as a warehouseman in certain contingencies, and there is no reason why the limitation of its liability for the value of the goods should not equally apply to all the responsibilities it assumes under the contract, whether of one kind or another.

The only point decided in Pontifex v. Midland Ry. Co. (L.R. [3 Q.B. Div.] 23) was that an action against a carrier for his failure to stop the goods in accordance with directions from the shipper was in tort, not on contract. I do not see how that doctrine is material to the question under discussion. It is sufficient, however, to say that an action against a carrier even for breach of its contract of carriage may be brought indifferently on the contract or in tort. (Catlin v.Adirondack Co., 11 Abbott's New Cases, 377.)

The judgment should be affirmed, with costs.

O'BRIEN, MARTIN, VANN and WERNER, JJ., concur with GRAY, J.; CULLEN, J., concurs in result with memorandum, with whom PARKER, Ch. J., concurs.

Judgment affirmed.