Lighterman v. Barrett

Bijur, J.

The plaintiff delivered for transportation within this state a trunk which was called for at her home in this city and directed to Boscoe, N. Y., where plaintiff was about to go. Through a delay of over two months in delivery, plaintiff pleaded, and I think sufficiently proved, the amount of damage to the trunk and its contents for which the judgment was awarded, thus eliminating in substance the errors for which a previous judgment in her favor was reversed. 157 N. Y. Supp. 882. No value of the trunk was declared by the shipper.

The only question on this appeal is as to the effect of the receipt given by defendant’s driver, upon which was printed in large type “ Company will pay not over $50 in case of loss or 50 cents per pound on shipments in excess of one hundred pounds unless greater value is declared and higher rates paid. ’ ’ A detailed clause elaborating this provision is printed in smaller type on the lower half of the receipt. Plaintiff did not read the receipt. Since the decision in Blossom v. Dodd, 43 N. Y. 264, examined in Belger v. Dinsmore, 51 id. 166, and followed by a long line of cases to the same effect, it is well settled in this state that a carrier may properly contract to restrict his liability by appropriate provision covering the due valuation of goods accepted for transportation, and that the presentation by the carrier and acceptance by the shipper of a receipt containing in appropriate type and language the expression of such limitation establishes a contract between the parties regardless of whether the shipper chooses to read it or not. Braus v. Manhattan Delivery Co., 78 Misc. Rep. 371; Schwarts v. Fargo, 145 App. Div. 574.

A careful distinction has been drawn, however, between such cases and those in which a receipt is given to a person actually traveling under circumstances which do not warrant the presumption that he will read the same, but imply rather that he accepts it as a mere voucher or token for the article delivered to the carrier. Mills v. Weir, 82 App. Div. 396; Madan v. Sherard, 73 N. Y. 329; Grossman v. Dood, 63 Hun, 324; affd. on opinion below, 137 N. Y. 599. See also Zimmer v. N. Y. C. & E. R. R. R. Co., 137 N. Y. 460; Healy v. N. Y. C. & E. R. R. R. Co., 153 App. Div. 516, affd., 210 N. Y. 646.

It seems to me to be plain that in the case at bar the plaintiff was not a traveler in the sense or under the circumstances intended by the last cited cases, and that she must be held to have assented to the contract tendered by the defendant.

She urges, among other contentions, that the receipt is not in evidence for general purposes. This claim arises out of a colloquy between the court and both counsel in which defendant’s counsel remarked: “1 don’t want to be understood as conceding anything unless the receipt is put in evidence. * * * Plaintiff’s counsel: I will put this receipt in only for the purpose of showing delivery of the trunk to defendant and for no other purpose. The Court: Mark it in evidence. Defendant’s counsel: If it is received in evidence, Your Honor will not restrict its probative force. ’ ’ While no doubt evidence may be limited to a particular purpose in an appropriate case (Deutschmann v. Third Ave R. R. Co., 87 App. Div. 508) a party cannot insist on putting in evidence a written instrument and relying upon a part thereof only, while excluding from evidence other essential parts upon which the other party desires to rest. The receipt having been put in evidence by plaintiff to prove delivery of the trunk was in the case for all legitimate purposes. Springer v. Westcott, 78 Hun, 365; affd., 166 N. Y. 117; Jonasson v. Weir, 130 App. Div. 528; Cohen v. Morris, European & American Ex. Co., 151 id. 672.

It follows, therefore, that the judgment must be modified by reducing the same to fifty dollars with appropriate costs and, as so modified, affirmed, without costs of this appeal.

Philbin, J., concurs.