Mavis Hosiery Co. v. Pennsylvania Transportation Co.

City of New York Municipal Court

Mavis Hosiery Co. v. Pennsylvania Transportation Co.

135 Misc. 636, 239 N.Y.S. 713, 1930 N.Y. Misc. LEXIS 1013

DecidedJanuary 28, 1930

StatusPublished

This text of 135 Misc. 636 (Mavis Hosiery Co. v. Pennsylvania Transportation Co.) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mavis Hosiery Co. v. Pennsylvania Transportation Co., 135 Misc. 636, 239 N.Y.S. 713, 1930 N.Y. Misc. LEXIS 1013 (N.Y. Super. Ct. 1930).

Pincite

Opinion

Chilvers, J.

The plaintiff has not established that the shipment moved over a route other than the one usually followed by the defendant’s trucks. It has, therefore, failed to establish a deviation from the defendant’s Unes. (Goetze & Co. v. Beam’s Owm, Inc., 199 N. Y. Supp. 790.)

Leaving the truck unguarded was an act of negligence which is chargeable to the defendant. But a limitation of the amount of liability, as distinguished from a limitation of liability, is valid even though negligence is not expressly mentioned. (Boyle v. Bush Terminal R. R. Co., 210 N. Y. 389.)

The question is resolved, therefore, into whether the recovery should be fifty dollars or twenty-five dollars, because just half the merchandise was undelivered. The case of Mallison & Co., Inc., v. Barrett (215 App. Div. 524) is authority for the lesser amount. That case was expressly based on the decision in United Lead Co. v. Lehigh Valley R. R. Co. (156 App. Div. 525), but in this last-mentioned case there was no apportionment made of a declared value; the contract limited the recovery to a hundred dollars a ton, and that was the recovery allowed. It would seem that a declared valuation is not so much for the purpose of estopping the shipper from claiming a greater value of the merchandise as for the purpose of estopping him from claiming damages beyond that valuation. The second Cummins Amendment, as pointed out in the dissenting opinion in the Mallison case, provided that the limitation in the receipt has “ no other effect than to limit liability and recovery to an amount not exceeding the value so declared.” The majority in that case, however, probably thought the words “ not exceeding ” important. I should be inclined to agree with the excellent dissenting opinion, but the majority of a strong court in that case made the rules controlling here.

Judgment for plaintiff for twenty-five dollars, with interest thereon from November 28, 1928.

Free access — add to your briefcase to read the full text and ask questions with AI

Chilvers, J.

The plaintiff has not established that the shipment moved over a route other than the one usually followed by the defendant’s trucks. It has, therefore, failed to establish a deviation from the defendant’s Unes. (Goetze & Co. v. Beam’s Owm, Inc., 199 N. Y. Supp. 790.)

Leaving the truck unguarded was an act of negligence which is chargeable to the defendant. But a limitation of the amount of liability, as distinguished from a limitation of liability, is valid even though negligence is not expressly mentioned. (Boyle v. Bush Terminal R. R. Co., 210 N. Y. 389.)

The question is resolved, therefore, into whether the recovery should be fifty dollars or twenty-five dollars, because just half the merchandise was undelivered. The case of Mallison & Co., Inc., v. Barrett (215 App. Div. 524) is authority for the lesser amount. That case was expressly based on the decision in United Lead Co. v. Lehigh Valley R. R. Co. (156 App. Div. 525), but in this last-mentioned case there was no apportionment made of a declared value; the contract limited the recovery to a hundred dollars a ton, and that was the recovery allowed. It would seem that a declared valuation is not so much for the purpose of estopping the shipper from claiming a greater value of the merchandise as for the purpose of estopping him from claiming damages beyond that valuation. The second Cummins Amendment, as pointed out in the dissenting opinion in the Mallison case, provided that the limitation in the receipt has “ no other effect than to limit liability and recovery to an amount not exceeding the value so declared.” The majority in that case, however, probably thought the words “ not exceeding ” important. I should be inclined to agree with the excellent dissenting opinion, but the majority of a strong court in that case made the rules controlling here.

Judgment for plaintiff for twenty-five dollars, with interest thereon from November 28, 1928.

Cite This Page — Counsel Stack

Bluebook (online)

135 Misc. 636, 239 N.Y.S. 713, 1930 N.Y. Misc. LEXIS 1013, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mavis-hosiery-co-v-pennsylvania-transportation-co-nynyccityct-1930.

Opinion

Related

Cite This Page — Counsel Stack