The action is for a breach by the defendant of the contract of carriage.
It will be observed that the memorandum signed by the plaintiff's husband contains no stipulation as to the value of the property intrusted to the defendant, but simply a clause limiting the responsibility of the defendant for any article or the contents thereof to $50. Therefore, those cases which involve a stipulation between the shipper and the carrier as to the value of the goods carried to measure the extent of the carrier's liability in case of loss, do not apply. (D'Utassy v.Barrett, 219 N.Y. 420.)
Whatever else may be said of the manner in which the defendant performed its contract, it certainly violated the common-law obligation of a carrier to safely carry and deliver the plaintiff's goods. The question is whether the clause quoted from the memorandum signed by the plaintiff's husband is sufficient to limit the responsibility of the defendant for the loss of the jewelry to $50. The simple and complete answer to that question is that the clause referred to, when read in the light of the decisions construing such clauses, does not even purport to limit the defendant's responsibility for the violation of duty shown in this case.
The rule is that where a common carrier desires by special contract to exonerate itself from the effect of its own acts or omissions, or those of its employees, the special contract must openly and plainly express that intention so that it cannot be in the slightest degree misunderstood. (Mynard v. Syracuse, B. N YR.R. Co., 71 N.Y. 180; Spinetti v. Atlas S.S. Co.,80 N.Y. 71; Gardiner v. N.Y.C. H.R.R.R. Co., 201 N.Y. 387.)
The clause in the memorandum is: "The responsibility of the company is limited to $50 for any article, together with the contents thereof." Plainly, this clause refers to the defendant's responsibility as a carrier and *Page 209 does not include the misfeasance or nonfeasance of the carrier itself or of its employees. The plaintiff had no reason to understand she was releasing them from responsibility for their own depredations. While couched in the words selected by the defendant, the clause does not under the circumstances of this case limit the defendant's responsibility at all.
The defendant also contends that it was relieved from its liability as a common carrier by the failure of the plaintiff to disclose the fact that there was a safe in the cabinet containing valuable articles. The answer to that argument is that the failure to make such disclosure did not relieve the defendant from liability for its own acts or those of its servants, which amounted to a misfeasance. (Magnin v. Dinsmore, 62 N.Y. 35;S.C., 70 N.Y. 410.)
I recommend that the order of the Appellate Division be reversed and that the judgment of the Appellate Term be reinstated, with costs in this court and in the Appellate Division.
HISCOCK, Ch. J., COLLIN, HOGAN and CRANE, JJ., concur; CHASE, J., not voting; McLAUGHLIN, J., not sitting.
Order reversed, etc.