Clarke, J.:
The complaint alleges that the defendant is. a common carrier; that on or about the 2d day of Hovember, 1908, the defendant, for a valuable consideration, agreed to carry the plaintiff. and her baggage, to wit, a large sole-leather bag or suitcase, with the contents thereof, consisting of clothing and personal effects of the plaintiff, from Bedford, in the State of Hew York, on the Harlem branch of said defendant’s railroad, to the city of Hew York, and that the said plaintiff thereupon delivered to said defendant said baggage, and [18]*18thereupon proceeded on one of defendant’s trains to the city of' New York ; that'upon arrival in said city plaintiff demanded the delivery to .her of said baggage, but that defendant has refused and neglected to deliver the same, and upon information and belief that defendant has negligently and carelessly lost the .same; that the said baggage was of the value of. $1,359, and that by reason of the carelessness and negligence of the defendant the said baggage was and is wholly lost to the plaintiff, wherefore- she demands judgment in said sum. , ' •
For a second and partial defense, the defendant alleges that the said suitcase was delivered to and received by the defendant for transportation under a written contract contained in á certain ticket known as a tifty-trip family ticket, which- said ticket was tendered ■ by the plaintiff to and accepted by the defendant for her transportation on the occasion complained of, which said ticket was good for fifty trips if used within one year from the date thereof between Bedford and New York; that said ticket was good for.the passage of the person in whose name it was issued, a member of his■ or her immediate family, a domestic servant employed therein, of a visitor to the family; that in and by the use of -said ticket as a token of her right to said transportation, the plaintiff held herself o.ut to the defendant as within one of the above-named classes and-entitled to transportation as provided in said ticket, and as such obtained and accepted said' transportation upon and subject to the conditions of said ticket, and subject to'the conditions of the tariff "under which said ticket was issued, as herein mentioned; that the said ticket contained the following conditions: “ In consideration of the reduced' fare at which this ticket is sold, the purchaser agrees that its use shall be subject to the following conditions: * * * 3. That this company’s liability for baggage .belonging to each passenger shall not exceed fifty dollars ($50). * * * ” That the plaintiff had-knowledge of and assented to" the conditions and limitations contained in said ticket.; that the said fifty-trip family ticket was issued in conformance with the provisions of the defendant’s tariff-known as 1-0-local and joint .passenger tariff of commutation fares between New York, N. Y., and stations on defendant’s Hudson, Harlem and Pútnam divisions,- effective September 1, 1908, and theretofore filed with, the Public Service Commissions of the first [19]*19and second districts, respectively, of the State of New York, which said tariff contained in addition to a schedule showing' the .reduced rates at which the said tickets are sold, among others, the following provisions: “ The following fares and regulations will apply in the • sale and acceptance of Commutation Tickets between New York and stations named herein, superseding all previous fares and regulations covering sale and acceptance of commutation tickets between same stations. * * * 3. Family Tickets.— A 50-Trip Family Ticket is good for one year including date of sale. * * * It will be valid for the passage of person in whose name it is issued . (whose signature is .required to -be affixed to the contract), a member of his or her immediate family, a domestic servant employed therein, or a visitor to the family. * *. * 10. Baggage, (a) Wearing apparel only will be checked as baggage on tickets at fares named. herein, and for such baggage belonging to one - passenger this company will'not accept 'a greater liability than $50.00.- The weight of baggage which will be.carried free-is explained in the following paragraph: 11. 'Excess Baggage,---Baggage in excess of" Free Allowance will be charged for in accordance with, excess baggage rates shown in baggage tariff No. 1-B. (P. S. C. 1 N. Y. No. 24, P. S. C. 2 N. Y. No. 209) or subsequent issues thereof.” Tins partial defense was demurred to tipon. the ground that, it is insufficient in law upon the face thereof. The court overruled the demurrer, and plaintiff appeals.
The complaint alleged that the' loss of the baggage was caused by - the negligence of the defendant; the partial defense contains no denial; therefore it stands admitted. The question is thus squarely presented, can a common carrier by á limitation expressed upon its ticket limit liability for loss due to its own'negligenee ? The.common carrier’s liability is twofold : First, that of an insurer as against all loss except that caused by the. act of God or the public-enemy ; second, that of an ordinary bailee for hire.
In the earlier cases it was held that an exemption from liability must be construed as an. exemption from the broad -and general, common carriers’ liability, and-did not include an exemption from' liability for losses caused by the negligence- of the carrier as bailee. It was subsequently established in this. State that a carrier might exempt himself from liability for negligence other than willful or [20]*20gross, but- that to do so the exemption must be expressed in clear and precise terms.
Then came the doctrine of the limitation of liability, rather than exemption therefrom. There are many cases in the books upon this topic. In Greenwald v. Weir (130 App. Div. 696) the cases' are collected and the rule stated as follows •: “ Both the Federal courts and the courts of this State have uniformly distinguished between shipping contracts, wherein the carrier has undertaken to exempt himself from liability' at all, and tho.se in which- he has agreed with -the shipper as to the amount which should be taken'as the value of the goods. Contracts of the first, kind have been generally condemned, and contracts of the- second kind sustained. * * * This distinction rests upon a sure and substantial basis. The contract of carriage by' a common carrier imposes upon the latter a double obligation, that of carriage proper and that of insurance. • It is reasonable and customary to fix a rate to be paid with reference to both liabilities, and in order to fix such rate it is necessary that the carrier should be apprised of the value of the article to be carried ; ” and it was there held, as well as in Jonasson v. Weir (130 App. Div. 528), where the negligence of the carrier was conceded, that where the value had been set forth, or where there was a clause that it should be fifty dollars unless a greater value was stated, by the. terms of the contract the defendant’s liability was limited to said amount.
The respondent claims-upon this special fifty-trip family ticket with its special privileges and its reduced rate, and upon its .tariff as posted —both under the provisions of law — that the liability of fifty dollars was a limitation and not an exemption, and if the plaintiff had not chosen to be bound by such limitation she could liavetaken a full ticket upon which the liability would have been limited to $150, and upon declaration of value and extra payment unlimited further accommodation.
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Clarke, J.:
The complaint alleges that the defendant is. a common carrier; that on or about the 2d day of Hovember, 1908, the defendant, for a valuable consideration, agreed to carry the plaintiff. and her baggage, to wit, a large sole-leather bag or suitcase, with the contents thereof, consisting of clothing and personal effects of the plaintiff, from Bedford, in the State of Hew York, on the Harlem branch of said defendant’s railroad, to the city of Hew York, and that the said plaintiff thereupon delivered to said defendant said baggage, and [18]*18thereupon proceeded on one of defendant’s trains to the city of' New York ; that'upon arrival in said city plaintiff demanded the delivery to .her of said baggage, but that defendant has refused and neglected to deliver the same, and upon information and belief that defendant has negligently and carelessly lost the .same; that the said baggage was of the value of. $1,359, and that by reason of the carelessness and negligence of the defendant the said baggage was and is wholly lost to the plaintiff, wherefore- she demands judgment in said sum. , ' •
For a second and partial defense, the defendant alleges that the said suitcase was delivered to and received by the defendant for transportation under a written contract contained in á certain ticket known as a tifty-trip family ticket, which- said ticket was tendered ■ by the plaintiff to and accepted by the defendant for her transportation on the occasion complained of, which said ticket was good for fifty trips if used within one year from the date thereof between Bedford and New York; that said ticket was good for.the passage of the person in whose name it was issued, a member of his■ or her immediate family, a domestic servant employed therein, of a visitor to the family; that in and by the use of -said ticket as a token of her right to said transportation, the plaintiff held herself o.ut to the defendant as within one of the above-named classes and-entitled to transportation as provided in said ticket, and as such obtained and accepted said' transportation upon and subject to the conditions of said ticket, and subject to'the conditions of the tariff "under which said ticket was issued, as herein mentioned; that the said ticket contained the following conditions: “ In consideration of the reduced' fare at which this ticket is sold, the purchaser agrees that its use shall be subject to the following conditions: * * * 3. That this company’s liability for baggage .belonging to each passenger shall not exceed fifty dollars ($50). * * * ” That the plaintiff had-knowledge of and assented to" the conditions and limitations contained in said ticket.; that the said fifty-trip family ticket was issued in conformance with the provisions of the defendant’s tariff-known as 1-0-local and joint .passenger tariff of commutation fares between New York, N. Y., and stations on defendant’s Hudson, Harlem and Pútnam divisions,- effective September 1, 1908, and theretofore filed with, the Public Service Commissions of the first [19]*19and second districts, respectively, of the State of New York, which said tariff contained in addition to a schedule showing' the .reduced rates at which the said tickets are sold, among others, the following provisions: “ The following fares and regulations will apply in the • sale and acceptance of Commutation Tickets between New York and stations named herein, superseding all previous fares and regulations covering sale and acceptance of commutation tickets between same stations. * * * 3. Family Tickets.— A 50-Trip Family Ticket is good for one year including date of sale. * * * It will be valid for the passage of person in whose name it is issued . (whose signature is .required to -be affixed to the contract), a member of his or her immediate family, a domestic servant employed therein, or a visitor to the family. * *. * 10. Baggage, (a) Wearing apparel only will be checked as baggage on tickets at fares named. herein, and for such baggage belonging to one - passenger this company will'not accept 'a greater liability than $50.00.- The weight of baggage which will be.carried free-is explained in the following paragraph: 11. 'Excess Baggage,---Baggage in excess of" Free Allowance will be charged for in accordance with, excess baggage rates shown in baggage tariff No. 1-B. (P. S. C. 1 N. Y. No. 24, P. S. C. 2 N. Y. No. 209) or subsequent issues thereof.” Tins partial defense was demurred to tipon. the ground that, it is insufficient in law upon the face thereof. The court overruled the demurrer, and plaintiff appeals.
The complaint alleged that the' loss of the baggage was caused by - the negligence of the defendant; the partial defense contains no denial; therefore it stands admitted. The question is thus squarely presented, can a common carrier by á limitation expressed upon its ticket limit liability for loss due to its own'negligenee ? The.common carrier’s liability is twofold : First, that of an insurer as against all loss except that caused by the. act of God or the public-enemy ; second, that of an ordinary bailee for hire.
In the earlier cases it was held that an exemption from liability must be construed as an. exemption from the broad -and general, common carriers’ liability, and-did not include an exemption from' liability for losses caused by the negligence- of the carrier as bailee. It was subsequently established in this. State that a carrier might exempt himself from liability for negligence other than willful or [20]*20gross, but- that to do so the exemption must be expressed in clear and precise terms.
Then came the doctrine of the limitation of liability, rather than exemption therefrom. There are many cases in the books upon this topic. In Greenwald v. Weir (130 App. Div. 696) the cases' are collected and the rule stated as follows •: “ Both the Federal courts and the courts of this State have uniformly distinguished between shipping contracts, wherein the carrier has undertaken to exempt himself from liability' at all, and tho.se in which- he has agreed with -the shipper as to the amount which should be taken'as the value of the goods. Contracts of the first, kind have been generally condemned, and contracts of the- second kind sustained. * * * This distinction rests upon a sure and substantial basis. The contract of carriage by' a common carrier imposes upon the latter a double obligation, that of carriage proper and that of insurance. • It is reasonable and customary to fix a rate to be paid with reference to both liabilities, and in order to fix such rate it is necessary that the carrier should be apprised of the value of the article to be carried ; ” and it was there held, as well as in Jonasson v. Weir (130 App. Div. 528), where the negligence of the carrier was conceded, that where the value had been set forth, or where there was a clause that it should be fifty dollars unless a greater value was stated, by the. terms of the contract the defendant’s liability was limited to said amount.
The respondent claims-upon this special fifty-trip family ticket with its special privileges and its reduced rate, and upon its .tariff as posted —both under the provisions of law — that the liability of fifty dollars was a limitation and not an exemption, and if the plaintiff had not chosen to be bound by such limitation she could liavetaken a full ticket upon which the liability would have been limited to $150, and upon declaration of value and extra payment unlimited further accommodation. But the appellant claims that the cases relied upon are cases- where there -has been a mutual valuation, where the passenger- had the opportunity upon declaring a higher value and payment of an extra rate to increase the liability; that there was no such opportunity given here; that the company arbitrarily fixed the amount. It seems to me that the answer is ..plain, there was nothing which forced plaintiff to. travel upon this [21]*21restricted ticket, which expressly contained the limitations in consideration of the reduced fare. If sire wanted further protection she should have procured another kind of ticket.
In Steers v. Liverpool, N. Y. & P. Steamship Co. (57 N. Y. 1) the court said :• “In the case of Belger v. Dinsmore (51 N. Y. 166) it was decided that in the absence of fraud, concealment or improper practice, the legal presumption is that-' stipulations limiting the common-law liability of common carriers, contained in a receipt given by them for freight, were known and assented to by the party receiving it.. In that case the decision in Blossom v. Dodd (43 N. Y. 264) was examined and shown to be entirely consistent with the conclusion arrived at. I do not perceive any distinction growing out of the fact that in the case before us the subject was the transportation of a passenger and her baggage, which can render the decision inapplicable. * * * Assuming then that we have in the paper in question the contract of the parties, the first inquiry which arises under it relates to the following clause: ‘ Twenty cubic feet of luggage is allowed to each passenger, free of charge, in consideration of which it is agreed that the company are not to be held liable or resp onsible for any loss or damage thereto, in any sum, except where the same shall have been proven to have occurred from gross negligence of said company or their servants.’ * * '* It affirmatively appeared that the plaintiff’s luggage was, on her going aboard the ship, delivered into 'the. custody. of the defendant’s agents, who assumed the charge of it, and that she could have no further care over it. At the end of the voyage the defendant did not produce it, nor in any way account for its non-production, and all inquiry on the part. of the plaintiff was ineffectual. Under these circumstances of actual and exclusive custody on board its own ship at sea, I‘think the proof was sufficient to -make out a case on which a jury might find gross negligence. The clause of the contract before cited was immediately followed by the following provisions: ' Nor in any event shall the passenger demand beyond the sum of fifty dollars, at which said baggage is hereby valued, unless a bill of lading or receipt" be signed therefor, specifying the articles and their respective values.’ ' Under this provision the case of Belger v. Dinsmore (above cited) is . a direct adjudication that the recovery could not, in' the absence of a bill of lading or such [22]*22a receipt, as the contract called' for, go.beyond the sum of fifty dollars.” -. ' ' '
In Tewes v. North German Lloyd S. S. Co. (186 N. Y. 151) . the court said of Westcott v. Fargo (61 id. 542) that it was distinctly • overruled in Magnin v. Dinsmore (62 id. 35) and. had never been followed in any of the.decision's of the court rendered since then. And of the Magnin case, said “ Where it was held that a stipula- ■ tion. limiting the amount for which the carrier-shall be liable was binding upon the- shipper who had notice of the limitation, and whose merchandise had. been lost by the ordinary negligence of. the carrier. * * * In reversing' a judgment for the- full value of the goods lost, this court said : ‘ As has been stated, in.the absence of agreement fior/a limited liability,.it is the duty of the carrier to make all needful inquiry as to. value. But when the shipper agrees with the carrier for a limited liability, he thereby expresses to the latter his estimate of the risk to be run and of the care needed, and ■holds out the .package to him ás an ordinary article which- lie would have no objection to take as of course. The carrier: is. thereby put off his '.guard. The shipper might refuse to -agree to a limited liability and demand generally carriage upon the common-law liability of the carrier; and then they deaf at arm’s .length, and that would arouse the attention of the carrier ; or at least, would put upon him the duty of . inquiry. But accepting carriage upon the terms of a limited liability, the shipper indicates his .judgment of the degree of the risk and of needed' care; and his'silence as to real value is the same as an assertion of méan value, thus keeping the carrier from his "adequate reward, and, what is worse, misleading him as to the degree of care and security which he should provide:’. .* * .* When the Magnin case came to-.this, court a third time(70 N. Y. 410) the rule laid'down on the second.appeal-was distinctly reiterated, and it has been followed by this.court in several subsequent cases.” (Citing Zimmer v. N. Y. C. & H. R. R. R. Co., 137 N. Y. 460 ; Wheeler v. Oceanic Steam Nav. Co., 72 Hun, 5 ;. affd., 149 N. Y. 576.) . “ It has been suggested that there is, or should be, á distinction between a case where the stipulation is designed merely to limit the carrier’s liability, as in' the case of a passenger whose baggage is carried -free of charge, and tlie case of a stipulation framed - for the double, purpose of enabling a. carrier ,of goods for liire to obtain [23]*23proper compensation, as well as to limit his liability if no declaration of value is made by the shipper. .At first glance this suggestion has a plausible appearance, but it does not seem to stand the test of .analysis. It is not apparent why a carrier should be subjected to a greater liability in respect of a service which he performs free of charge, of simply as an incident to the carriage of persons, than is imposed upon him in the transportation of merchandise pursuant to a contract in which that is the precise duty which he undertakes for a specified hire.” And in that case the traveler whose trunk was concededly lost by the negligence of the defendant was limited in' his recovery to the amount of fifty dollars as expressed upon' his passage ticket.
In the Tewes case tlie court also referred to the number of well-settled cases which hold that there is a-just and logical distinction between an ordinary railroad ticket, which may often be regarded as a mere token, and a passage ticket for an ocean voyage, the sale and purchase of which is usually conducted with such caution and deliberation as to invest the transaction with the elements of a contract, the terms of which the purchaser has ample opportunity to ascertain and understand.
The tickets here under consideration are as special and as different from ordinary railroad tickets as the steamship tickets alluded to. In procuring this book of tickets the purchaser is required to give his name, which is written in the book. They are not transferable, but limited to the transportation of the persons indicated, and forfeited if used by any one else, and are altogether of such- a peculiar and special nature as to bring home their limitations and requirements to the person who takes them out. 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, chap. 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 ifs route and all other points thereon. “ The schedules printed as aforesaid shall plainly state the places between which property [24]*24and passengers will be carried, an.d 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 m any wise change, affect, or determine any .part, or the aggregate of, such aforesaid rates, fares and charges, Or the valúe of the service rendered to the passenger, shipper or.consignee.” Arid section 33 providés 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, excursion, commutation' passenger ticket or joint inter-, changeable mileage ticket, with special ■ privileges as aforesaid,'it shall file with the commission copies of the tariffs of rates, fares or . charges-on which such-tickets are to be. básed.”
I think the case at bar comes'directly-within the Tewes Case (supra),, that the limitation of liability.was clearly expressed in the special contract of transportation accepted by the plaintiff, who must be .deemed to have assented thereto. Indeed it is alleged in the partial defense, and so admitted by the demurrer thereto, that the plaintiff had knowledge of and assented to the conditions and limitations contained in said ticket.
It follows that the defense demurred to was' sufficient in law as a partial defense, and that the judgment appealed from should be affirmed, with costs and disbursements to the respondent.
Ingraham, P. J., and Miller, J., concurred •; Laughlin and Scott, JJ,;. dissen ted.