About three years prior to April, 1908, the defendant company issued to plaintiff’s husband, who conducts a clothing store in the city- of Poughkeepsie, a hook of blank express receipts, on the inside of the first cover of which was a printed statement limiting the defendant’s liability on shipments to he receipted for in such hook to fifty dollars, unless the just and true value was stated in the receipt and an extra charge paid based on such higher value. Each page of the hook was headed “American Express Company. Received of. 'The Property hereinafter described, to he forwarded subject to the terms and .conditions of the Company’s regular form of receipt printed on inside front cover of this hook.” This heading was followed by ruled spaces in which were to be given the date of shipment; description and contents; value; addressed to; destination, and the name of the employee receipting for the property. The hook had been in use down to April 13, 190.8, and for. some time prior to that date had been without covers, the same having been worn out and destroyed. On April 13, Í908, the plaintiff gave several of her dresses, together with lace and other materials of the value of one hundred and ninety-six dollars and fifty cents, to one Alexander, a clerk in her husband’s employ, with directions to ship them by express to her dressmakers in Flew York city for alterations. Alexander inclosed the package in a box which he addressed to “ L. & M. Rundspaden, 108 E. 71st St., New York City,” and under the proper headings in the express receipt hook wrote the date and the other information required, and delivered the package and hook to one Carroll, an employee at the defendant’s office, who receipted in said book under the proper heading for the same and received from Alexander the charges. The value of the package was not asked or given.
Defendant’s contention is that the plaintiff is bound by the limitation contained in the printed statement on the first page of the receipt book when it was issued to her husband, and is limited in her recovery to fifty dollars as therein provided. The plaintiff in this connection cites section 38 of the Public Service Commissions Law, * providing <cNo contract, stipulation or clause-in any receipt or bill of lading shall exempt or be held to exempt any common carrier, railroad corporation or' street railroad corporation from any liability for loss, damage or injury caused by it to freight or property from the time of its delivery for transportation until the same shall have been received at its destination and a reasonable time shall have elapsed after notice to consignee of such arrival to permit of the removal of such freight or property.” . By section 2 of the same law the description of “ common carrier ” includes express companies.
The .learned court in denying, defendant’s motion, for a new trial says, among other things, that the only question presented is whether or not the statute’ makes the defendant absolutely liable for the full value of the. goods lost without regard to the limitation of its liability to fifty dollars. I think the court was in error in its conclusion that the only question presented is controlled by the provisions of the Public Service Commissions Law, and that .the judgment and order must be affirmed without reference to the provisions of that statute. The evidence fails to support the defendant’s contention that there
The judgment and order must be affirmed, with costs.