Greenfield v. Wells Fargo & Co. , 134 N.Y.S. 913 ( 1912 )

PENDLETON, J.

The action is against an express company for loss_ of an article in transit. The shipping receipt contained the following provision:

“The charge for carrying said property being based upon a valuation not exceeding fifty dollars, unless a greater value is declared, it is hereby agreed that the company shall not be liable in any event for more than fifty dollars unless a greater value is stated herein, and in case of partial loss or damage, shall not he liable for more than such proportion of same as fifty dollars, or the value declared herein, hears to the actual value, if greater.”

There were three articles covered by the receipt, two were delivered safely, and the third was not delivered, and for failure to deliver this the action was brought.

[1] Plaintiff proved at the trial the value of the articles lost and that such value exceeded $50, but did not prove the value of the rest of the shipment. The defendant claims that the judgment for $50, the maximum amount, was error, and the plaintiff was only entitled to such proportion of $50 as the value of the articles lost bore to the whole shipment. That this is so can scarcely be questioned. The plaintiff has therefore concededly recovered judgment for a larger amount than he is entitled to, and substantial justice would seem to require a new trial. The error was due to the failure to prove the facts necessary to fix the amount plaintiff was entitled to recover under the terms of the contract in the event of partial loss; that is, the relative value of the part lost to the value of the whole shipment.

[2] The burden of proof was upon the plaintiff to make out his case. That burden never shifts. He produced a written receipt or contract, which contained the terms of defendant’s liability. Having thus proved the special contract, the burden still remained upon the plaintiff to show how much he was entitled to recover under its terms; and this is so, whether the contract is considered as fixing a measure of damages or limiting defendant’s liability. His failure to do this cannot justify a judgment for an amount which on the evidence he was not entitled to.

ít is needless to consider what would have been the rule, if plaintiff had made out a prima facie case without producing the written contract or receipt, and the defendant had introduced the special agreement, as matter of defense. Such was not this case. Plaintiff introduced as the foundation of his cause of action the written contract, and was bound to bring himself within its provisions if he was to recover at all. Having proved the special contract, he was bound to establish all facts necessary to fix defendant’s liability.

Judgment feversed, and new trial ordered, with costs to appellant to abide the event.

GIEGÉRÍCH, J., concurs.