Charles Werner for plaintiff.
George I. Janow for defendant. March 2, 1955, on reargument.
plaintiff said "yes", to which defendant replied, "We have insurance too." Defendant's officer agreed substantially regarding this conversation but claimed that he added, "I will put down $100 value then and charge you the minimum storage of $3.00", to which plaintiff assented. The "receipt" on its face purports to be a "Cold Storage Receipt", in bold letters. It makes no reference to "contract" or "agreement" and only refers in small print to the "conditions on other side". However, in pencil, in a space provided, there was written on this paper by defendant's officer the following:
Article Repairs to be done Charges Value Wild Mink Coat $3.00 $100 clean $10.00 Signed by defendant by an officer. Plaintiff claims that she never knew what was written on the paper though she was present when it was written. She thought it was a receipt, put it into her purse, and never looked at it again until she was informed of the loss. The jury was charged to determine whether defendant as bailee for hire acted as a reasonably prudent person. If not, and so found defendant negligent, the jury was to determine whether plaintiff had notice and assented to the $100 value placed on the garment. If they so found then the verdict would be for $100. If not, it would be for the fair and reasonable value of the coat. Similar bailments have been before the courts frequently in recent years. However, none have seemed to provide the three issues here presented. Several cases have been decided on the printed wording of the "receipt" alone. (Howard v. Handler Bros. & Winell, 279 App. Div. 72, affd. 303 N.Y. 990; Rappaport v. Phil Gottlieb-Sattler, Inc., 280 App. Div. 424, affd. 305 N.Y. 594; Abend v. Haberman, 281 App. Div. 262.) The receipt in the instant case is not too dissimilar to the ones referred to in the cases cited, except that this receipt does exempt the defendant from its own negligence, "beyond values herein specified." In the cited cases negligence of the bailee was not an issue. The court refused to go into the "ticket and carrier" cases. Thus, the question of notice to bailor of limitation of liability and bailor's assent was not discussed. In deciding that the limitation clauses did not preclude plaintiff from recovering the fair and reasonable value of the lost garment, the Appellate Division, First Department, pointed out that the language in the "receipt" was ambiguous; that it was against public policy contents. Important also in some of these cases is the fact that the charges for shipping increase with the value placed thereon. (Reichman v. Compagnie Generale Translantique, 290 N.Y. 344; Murray v. Cunard S. S. Co., 235 N.Y. 162; Kirkland v. Dinsmore, 62 N.Y. 171; Gardiner v. New York Central & H. R. R. R. Co., 201 N.Y. 387; Boyle v. Bush Terminal R. R. Co., 210 N.Y. 389.) In the instant case, plaintiff contends that if the receipt as presented is not clear in itself to limit liability, the value written on the face of the receipt, the charge made for storage, and notice to and assent by plaintiff-bailor to the "agreed" value would not make the limitation effective. With this I disagree. I subscribe to the decisions holding that when there is a stated valuation which does not reflect the true valuation of a bailed article, the terms of the agreement must be construed most strongly against the bailee. Also, that the alleged limitation will be given effect only if the agreement is clear in its intent and purpose. (Howard v. Handler Bros. & Winell, supra; Rappaport v. Phil Gottlieb-Sattler, Inc., supra; Abend v. Haberman, supra.) However, there are elements in the conflict of testimony in this case which in my opinion are questions of fact for the jury. If the jury should determine that the one hundred-dollar value was agreed upon by the plaintiff-bailor, and well they might in view of the other circumstances, then the form of the receipt should not prevent enforcement of the alleged basic agreement as to limitation of defendant's liability to the amount of value agreed upon. If the jury should determine this factual question in favor of the plaintiff, then of course, plaintiff would be entitled to the fair and reasonable value of the chattel. The motion for reargument is granted and upon such reargument the previous decision is adhered to and the motion for a directed verdict is denied. The case is remanded to the head of the Trial Term, Part III Calendar for trial on March 15, 1955.