any article, together with the contents thereof, and while the van containing the goods was in defendant's storehouse overnight jewelry was stolen from a safe by defendant's employés, although the contract did not show that the consideration for the valuation at a fixed sum was a lower rate of freight, the shipper could not recover more than the stipulated value of the stolen goods. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 699, 7001⁄2-704, 707-719; Dec. Dig. 156(2).] Smith and McLaughlin, JJ., dissenting. Appeal from Appellate Term, First Department. Action by Ottillie Heuman against the M. H. Powers Company. From a judgment of the Appellate Term, affirming judgment of the City Court for plaintiff, defendant appeals. Judgment reversed, and new trial granted, unless plaintiff stipulate to reduce recovery to $50, with interest and costs, in which event judgment, as so modified, affirmed. Plaintiff in this case sued to recover from the defendant the sum of $1,115, the value of certain jewelry stolen from a safe owned by the plaintiff, which safe was delivered to the defendant for cartage, and subsequently rifled by the defendant's employés. It appears that the plaintiff was about to remove her household goods to a new residence, and employed the defendant company to transport these goods to the new place of residence for the lump sum of $49. The defendant is engaged in the moving and storage business, and at the time the contract was made secured the signature of the plaintiff's husband, who was admittedly authorized to act for her in this respect, to a memorandum contract, which stated: "Price per contract $35, cartage on piano $14-$49." This contract, or order for the work to be done, also contained, immediately above the signature mentioned, the following provisions: "All fragile articles, unless packed and unpacked by this company, are at owner's risk, and no employé has authority to waive this condition. The responsibility of the company is limited to $50 for any article, together with the contents thereof." One of the articles to be moved, and which was apparently in full view of the defendant's representative at the time the contract was made or the order given, was a small safe. In this safe plaintiff kept jewelry, and her claim in this action is based upon the conceded fact that the safe was broken open and the contents stolen by defendant's employés while the safe was in plaintiff's garage, where it was kept in the van over Sunday by plaintiff's consent, having been received too late on Saturday night for delivery that night. At the close of plaintiff's case the defendant also rested, and asked that a verdict be directed for the plaintiff in the sum of $50, on the ground that under the contract mentioned the defendant's liability was limited to the sum of $50, and that there was no evidence that the goods lost were lost by reason of gross negligence, or any negligence, on the part of the defendant. This motion was denied, and the trial judge left to the jury simply the question of the amount of the plaintiff's recovery, and they returned a verdict for the sum of $1,000. Argued before CLARKE, P. J., and McLAUGHLIN, SCOTT, SMITH, and PAGE, JJ. Powers & Kaplan, of New York City, for appellant. SCOTT, J. [1] The defendant is a general truckman transporting goods for hire under special contracts. He was therefore a common carrier. Jackson Ave. Iron Works v. Hurlbert, 158 N. Y. 381, 52 N. E. 665, 70 Am. St. Rep. 432. He was employed by plaintiff to move her household effects from 435 Convent avenue, in the city of New York, borough of Manhattan, to No. 2478 Second avenue, in the same city and borough. Plaintiff's husband, who concededly acted as her agent in the matter signed a paper, partly printed and partly written, containing shipping directions and the stipulated hire. This paper also contained in perfectly plain letters the following statement: "The responsibility of the company is limited to $50 for any article, together with the contents thereof." Among the articles intrusted to the defendant was a safe, within which was a box containing jewelry belonging to plaintiff and her husband, and valued by them at upwards of $1,000. The goods were delivered to defendant late in the afternoon of Saturday, May 26, 1913. There was some conversation between plaintiff's husband and agent and a representative of defendant as to whether or not it would be too late to deliver the goods on that evening, and it was agreed that, if necessary, the van might be placed in defendant's storehouse until Monday. This was done, and on Monday, May 26th, the goods were delivered. In the meantime, however, and while the van was in defendant's possession, the safe was broken open by some of its employés and the jewelry stolen. Plaintiff This action is to recover the value of the stolen articles. had a verdict for $1,000, upon which judgment was entered, and affirmed by the Appellate Term. The sole question in the case is as to the efficacy of the clause above quoted limiting defendant's liability. [2, 3] It is now well settled in this state that it is competent and valid for a common carrier to limit his liability by agreeing with the shipper upon a maximum valuation of the articles to be carried (Boyle v. Bush Terminal R. R. Co., 210 N. Y. 389, 104 N. E. 933; Tewes v. North German Lloyd S. S. Co., 186 N. Y. 151, 78 N. E. 864, 8 L. R. A. [N. S.] 199, 9 Ann. Cas. 909; Gardiner v. N. Y. Cent. & Hudson R. R. R. Co., 201 N. Y. 387, 94 N. E. 876, 34 L. R. A. [N. S.] 826, Ann. Cas. 1912B, 281), and a clause in a contract of carriage limiting the liability of a carrier to a given sum is held to be equivalent to a valuation of the goods. Magnin v. Dinsmore, 62 N. Y. 35, 20 Am. Rep. 442; Id., 70 N. Y. 410, 26 Am. Rep. 608. It is true that, in order to exempt the carrier from liability for negligence, the provision making such exemption must be clearly and expressly stated. Magnin v. Dinsmore, 56 N. Y. 168; Mynard v. Syracuse, B. & N. Y. R. R. Co., 71 N. Y. 180, 27 Am. Rep. 28. In the present case the action is not based on defendant's negligence, but upon its general common-law liability as a common carrier for loss or damage of goods. The only allegation of negligence contained in the complaint reads as follows: "Seventh. Upon information and belief that the men employed by the said defendant, or some of them, to pack and move the property, furniture, and effects of this plaintiff were dishonest, and were not selected by the defendant as employés with a proper regard and care as to their honesty, but were carelessly and casually selected and employed by the defendant, without regard to their previous character and reputation, which could have been ascertained upon proper inquiry made by the defendant, which wholly failed to make such inquiry, and that the said employés, or some of them, were men of loose character and dishonest, and not proper men to be trusted with the labors that the defendant intrusted the same with." No attempt was made to establish this allegation by proof. The case on the facts closely resembles D'Utassy v. Barrett, 171 App. Div. 772, 157 N. Y. Supp. 916, recently decided by this court, wherein there was a similar limitation of the carrier's liability, and the loss occurred through a theft on the part of the carrier's employés. The opinion of the court by Mr. Justice Smith quite clearly and very correctly states the reasons why the shipper, in such a case, may not recover more than the stipulated value of the stolen goods. It is true that in the D'Utassy Case, and in a number of others, the receipt or shipping contract has contained words indicating that the consideration for the valuation at a fixed sum was that a lower rate of freight was thereby secured than would have been charged if the true value of the goods had been stated. But that circumstance does not in my opinion affect the question of the validity of a written, deliberate agreement as to the extent of the carrier's liability, and so far as I am aware no case has ever held that circumstance to be controlling. On the contrary, it was held to be irrelevant in Rubens v. Ludgate Steamship Co., 20 N. Y. Supp. 481, 487,1 affirmed 143 N. Y. 629, 37 N. E. 825, decided by the General Term in this Department. In that case the court said: "There still remains a subsidiary question as to the effect of the failure to prove the allegation of the answer that the consideration for these exemptions and exceptions accorded to the defendant was the low rate of freight the defendant agreed to accept as a condition to its release from any liability for loss resulting from causes exempted. We do not think that such failure on defendant's part was material to the disposition of the case, for the reason that it is entirely competent for the parties to enter into a contract; and where it appears that, in consideration of a stipulated sum, the carrier agrees to perform certain services upon condition of certain exemptions, sufficient consideration is to be found in the carrier's obligation thus assumed to support the exemptions provided for in the contract." Indeed, there is high authority for saying that, even if the contract of carriage had contained no specific limitation of defendant's liability, still the plaintiff might be refused relief because of her act in misleading defendant as to the extent of responsibility it assumed by concealing the fact that the safe contained jewelry of considerable value. Nathan v. Woolverton, 149 App. Div. 791, 134 N. Y. Supp. 469. It is not necessary to go so far as that in the present case, nor are we to be understood as placing our decision upon that ground. It is cited merely to illustrate the point that it is not the rate of freight alone, but also the degree of care necessary to be given to the goods intrusted to the carrier, that is taken into consideration in fixing a valuation upon the goods. It is quite probable, for instance, in the case at bar, if the carrier had been advised that the safe contained valuable and easily portable jewelry, that he would have taken some extraordinary means to guard against its loss. Our conclusion is that the determination of the Appellate Term 1 Reported in full in the New York Supplement; reported as a memorandum decision without opinion in 65 Hun, 625. 162 N.Y.S.-38 and the judgment of the City Court must be reversed, and a new trial granted, with costs to appellant in all courts to abide the event, unless the plaintiff shall stipulate to reduce the recovery to $50, with interest and costs in the City Court, in which event the judgment, as so modified, will be affirmed, without costs to either party in this court or the Appellate Term. Settle order on notice. CLARKE, P. J., and PAGE, J., concur. SMITH, J. (dissenting). It is first contended that there is no proof here that these goods were lost by the negligence of the defendant. The admission is that while in the defendant's garage, where the van was stored, the safe was rifled and the goods were stolen by the defendant's employés. In the D'Utassy Case, 171 App. Div. 775, 157 N. Y. Supp. 916, 918, which was under an express company contract, which will hereafter be referred to, the opinion says: "But the instant case presents a totally different question, since the conversion of the goods was by an employé for his own benefit. His acts in furtherance of this purpose were not company acts, but the acts of a stranger. But for not preventing the theft the company, through its agents, including the thief, was negligent. It was a part of the contract of carriage to prevent thefts by any one, including their own employés." But the same rule of reason and public policy which would require a company stipulating for its own exemption of limitation of liability for negligence to specifically so state would apply with still more force to a company stipulating against its liability for its own wrong or the conversion of its servants; and under the rule laid down in the D'Utassy Case, supra, this case may therefore be considered as though the limitation of liability here were a limitation from liability for the negligence of the carrier. That defendant is a common carrier of goods is not questioned. The legal question presented by this appeal is sharply outlined in the dissenting opinions in this court and in the Court of Appeals in the case of Gardiner v. New York Central & H. R. R. R. Co., reported in this court in 139 App. Div. 17, 123 N. Y. Supp. 865, and in the Court of Appeals in 201 N. Y. 387, 94 N. E. 876, 34 L. R. A. (N. S.) 826, Ann. Cas. 1912B, 281. In that case the plaintiff had purchased a commuter's 50-trip ticket, nontransferable, at a greatly reduced rate, according to a tariff filed with the Public Service Commission. Upon the ticket was printed a provision limiting the railroad's liability for baggage to $50. It was held that the passenger could not recover in excess of that sum. Judge Laughlin, in his dissenting opinion in this court, says: "It is well settled that a shipper or passenger and a common carrier may make a binding contract with respect to the value of the property, whether shipped as freight or baggage, which will limit the amount of the recovery, and this may be done either by an express provision fixing the actual value, or by a valuation specified by the carrier in the bill of lading or ticket, as the valuation agreed upon in the event that a higher valuation is not declared and a higher rate paid [citing authorities]. In the case at bar, however, the agreement printed by the carrier on the ticket is not a valuation agreement, but is a clear attempt on its part to limit its liability, and in such case the rule is that, although the condition be binding upon the shipper or passenger, it will be construed as a limitation on the carrier's liability as insurer, and not upon its liability as a bailee for hire, and therefore will not be construed as relieving the carrier from liability for its own negligence, which is alleged here and admitted, unless it is expressly so provided, or such intention is so clearly expressed that it cannot be misunderstood by a shipper or passenger of ordinary intelligence." In the Court of Appeals, Judge Vann in his dissenting opinion, in which two other judges agree, says: * "In Wheeler v. Oceanic Steam Navigation Co., 125 N. Y. 155, 161 [26 N. E. 248, 249 (21 Am. St. Rep. 729), Judge Finch, after reviewing certain cases, wrote for all the judges as follows: "These cases show that the liability for negligence as bailee survives, even when by special contract the carrier has thrown off his liability as such; and the courts of this state have exhibited a very decided purpose to retain and enforce that liability wherever it is possible. Even that may be thrown off by force of a special agreement, but we have refused to permit any general words to accomplish such result, and have insisted that, where the carrier seeks to contract against the consequences of his own negligence, he must say so openly and plainly, so as not to be in the slightest degree misunderstood. Nicholas v. N. Y. C. & H. R. R. R. Co., 89 N. Y. 372.' The defendant claims to have thrown off its liability as bailee by virtue of the 'condition' above quoted, which it regards as a special agreement of valuation. I cannot assent to this position under the rule of strict construction against the carrier, which, unless many precedents are to be disregarded, must be applied in this case. There is nothing in the stipulation that suggests valuation to my mind. Neither the word 'value,' nor 'valuation,' nor any equivalent word or expression, appears in the 'condition,' which is simply an arbitrary and flat limitation of liability to the sum of $50, not as a valuation, but as a limitation, pure and simple. The opportunity, afforded in many of the reported cases, to declare a higher value and pay at a higher rate, was not given to the plaintiff. Such a provision shows an intention to value at the sum named, by offering as an alternative the chance to value at a higher rate, if the shipper so elects. There was no express valuation, and a valuation by implication is not stated in unequivocal terms,' or 'so that it cannot be misunderstood' as the cases require." The facts in that case, however, are materially different from the facts in this case, and present a clear distinction. Justice Clarke, in writing the prevailing opinion for this court, says: ** * * "The tickets here under consideration are as special and as different from ordinary railroad tickets as the steamship tickets alluded to. They are intended for commuters coming in and out from suburban places, and for such travelers the limitation upon the personal baggage to be carried and the value thereof is reasonable. Whether so or not is not to be determined by this court in the first instance. The rates have been filed with the Public Service Commission as required by law. Laws of 1907, c. 429. Section 28 thereof requires the filing of schedules showing the rates, fares, and charges for transportation of passengers and property within the state between each point upon its route and all other points thereon. The schedules printed as aforesaid shall plainly state the places between which property and passengers will be carried, and shall also contain the classification of passengers, freight or property in force, all privileges or facilities granted or allowed, and any rules or regulations which may in any wise change, affect or determine any part, or the aggregate of, or the value of the service rendered to the passenger, shipper or consignee.' And section 33 provides that 'nothing in this act shall prevent the issuance of mileage, excursion, or commutation passenger tickets, or joint interchangeable mileage tickets, with special privileges as to the amount of free baggage that may be carried under mileage tickets of one thousand miles or more. But before any common carrier, subject to the provision of this act, shall issue any such mileage, excur * * * |