D'Utassy v. Barrett

• Decision Date: 28 December 1916
• Parties: D'UTASSY v. BARRETT.
• Court: New York Court of Appeals Court of Appeals

219 N.Y. 420

114 N.E. 786

D'UTASSY

v.BARRETT.

Court of Appeals of New York.

Dec. 28, 1916.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Leo L. D'Utassy against William M. Barrett, as president of Adams Express Company. Order of the Appellate Division, First Department (171 App. Div. 772,157 N. Y. Supp. 916), affirming an order of the Special Term, which overruled plaintiff's demurrer to the partial affirmative defenses set forth in the amended answer to the amended complaint, and plaintiff appeals. Affirmed.

Arthur W. Clement and Wilson E. Tipple, both of new York City, for appellant.

William D. Guthrie, of New York City, for respondent.

POUND, J.

The complaint alleges that the defendant received certain packages from plaintiff's assignors for interstate shipment, and agreed to carry the same to the consignees thereof, but that said ‘Adams Express Company, its agents, servants, and employés,’ stole said packages and their contents, and have unlawfully disposed of said property, and have converted the same to their own use, to plaintiff's damage upwards of $2,000. The answer sets up as a partial defense that it was agreed between the shipper and defendant that the value of each shipment was not more than $50, and that the defendant should not be liable for more than $50 thereon; that the shipper concealed the true value of the property; that charges were fixed and filed with the Interstate Commerce Commission as required by the Interstate Commerce Act of Congress of February 4, 1887, and the acts amendatory thereof, including the Carmack Amendment; that a higher charge would have been made if the true value had been given; that greater care would also have been taken to prevent the loss or theft of the property ‘as well through the acts or omissions of the agents or employés of said express company as through the acts or omissions of other persons.’ To this affirmative partial defense the plaintiff demurs on the ground of the legal insufficiency thereof. The effect of the pleadings is that the defendant admits that ‘its agents, servants, and employés' stole, unlawfully disposed of, and converted the packages to their own use, and alleges that the value was stipulated as well in case the property was so stolen or converted by the employés of the defendant as in case the loss or theft was due to the acts of third parties, and therefore claims that if the evidence discloses that the property was so stolen and converted by an agent, servant, or employé of the defendant, the liability of the defendant should be limited to $50 on each shipment. Proof of actual conversion by the defendant itself would, under this partial defense, establish full liability, for it is not pleaded that the value is agreed upon as against such an act. As the defendant may act only through agents whose acts in the scope of their employment are attributed to it, the question narrowly presented is whether the agreed valuation applies to an action for the conversion of the goods by an employé for his own benefit and amounts to a partial defense.

Agreements of limited Liability are upheld where the loss is due to ordinary negligence or to the wrongful act of another (Boyle v. Bush Terminal R. R. Co., 210 N. Y. 389, 392,104 N. E. 933;Boston & Maine R. R. v. Hooker, 233 U. S. 97, 34 Sup. Ct. 526,58 L. Ed. 1141); but the law remains that the carrier may not claim a limitation of liability to a certain amount for its affirmative wrongdoing (Magnin v. Dinsmore, 62 N. Y. 35, 20 Am. Rep. 442) when the plaintiff makes proof thereof (Wamsley v. Atlas S. S. Co., 168 N. Y. 533, 61 N. E. 896). A distinction between a limitation of liability for conversion and for negligence is clearly shown in the cases.

The distinction must be borne in mind between a limitation of liability and an agreed valuation in case of liability. When it is urged that the limitation of value should not be applied to any case of theft by the carrier's employés, for the reason that the company is liable for such acts as if the company had been the thief (Adams Express Co. v. B. & W. Co., 35 App. D. C. 208, 31 L. R. A. [N. S.] 309), the argument loses sight of the distinction suggested. When the agent acts within the scope of his employment in taking possession of the shipment ‘in legal effect it was the same as if the defendant, personified, had taken it’ (Vann, J., in Hasbrouck v. N. Y. C. & H. R. R. R. Co., 202 N. Y. 363, 373,95 N. E. 808, 812, 35 L. R. A. [N. S.] 537, Ann. Cas. 1912D, 150), but the liability may exist and the valuation of the shipment in case of liability may be agreed upon when the rates for transportation are based on the valuation of the goods intrusted to the carrier.

The reason for the rule sustaining the declared and agreed valuation is to prevent fraudulent practices by shippers in obtaining a lower rate by undervaluation. Kansas City Southern Ry. Co. v. Carl, 227 U. S. 639,...