Walker v. Taylor

186 A.D. 544, 174 N.Y.S. 520, 1919 N.Y. App. Div. LEXIS 5854

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 21, 1919
• Status: Published

Opinion

Jaycox, J.:

The plaintiff appeals from a verdict directed in her favor for the limited amount of liability mentioned in a receipt issued by the defendant. The plaintiff on October 3, 1916, sent her trunks from Brant Lake to Riverside, N. Y. (the railroad station), by a local stage line known as Parker’s Express. The plaintiff told the driver of the automobile truck to take her trunks and express them ■ to Eye Beach avenue, Eye, N: Y. She told the driver that she would prepay the express charges and that she would stop the next morning and pay him. He gave her no receipt. The next morning she went to the office of Parker’s Express at Eiverside, paid the charges and received the defendant’s receipt above mentioned. Some few days afterwards the plaintiff’s trunks were delivered at their destination so badly damaged by fire and water as to be practically a total loss.

The vital point in the case is whose agent was Parker’s Express when it took the receipt from the defendant. The plaintiff did not regard Parker’s Express as a common carrier and attempt to express her trunks by it to her home at Eye. She employed it for the limited and special purpose of taking her trunks to Eiverside and there expressing them. She took no receipt from that company, thus indicating that the trunks were still in the possession of her agent. She was told by the man at Parker’s Express Company’s office that he had paid four dollars and forty-four cents express charges from Eiverside to Eye and he charged her two dollars and fifty cents for bringing the trunks from Brant Lake to Eiverside. At that time she received the receipt of defendant which limits its liability to one hundred dollars. This receipt she claims she did not read. The trunks were thus sent to Eiverside by an agency of her own selection. If she wished to charge the defendant with responsibility for the agency by which the trunks were transmitted from Brant Lake to Eiverside, she should have permitted the defendant to make the selection. The plaintiff contends that Parker’s Express is a common carrier and, therefore, not her agent. If it be conceded that Parker’s Express is a common carrier, the conclusion contended for does not necessarily follow. From the facts stated above the conclusion that Parker’s Express was not the initial carrier in a shipment from Brant Lake to Eye is inescapable. That being so, the conclusion necessarily follows that it was the plaintiff’s agent for the purpose of expressing these trunks. Parker’s Express may for some purposes be a common carrier and still not be defendant’s agent for this purpose, and there is nothing in Polack v. O’Brien (114 App. ) to the contrary. Parker’s Express Company must, therefore, be regarded as having authority to stipulate for the usual terms of transportation. (Knapp v. Wells, Fargo & Co., 134 App. Div. 712; Hoffman v. Metropolitan Express Co., 111 id. 407; Addoms v. Weir, 56 Misc. Rep. 487.) Parker’s Express Company does not come within the definition of a common carrier in subdivision 9 of section 2 of the Public Service Commissions Law (Consol. Laws, chap. 48' [Laws of 1910, chap. 480], as amd. by Laws of 1913, chap. 444).

The judgment and order appealed from should be affirmed, with costs.

Present — Jenks, P. J., Rich, Putnam, Kelly and Jaycox, JJ.

Judgment and order unanimously affirmed, with costs.