AMERICAN JIIXPRESS CO.
The question now is, whether the defendAnt is relieved from the responsibility by reason of the stipUlations in the receipt, or, if not wholly absolved, whether it is liable for 1Jlore than $50. It will not be profitablf' to review the authorities which consider the right of common carriers to limit or modify their common law liabilities by notices or specia.l contracts. It is the settled law in the federal courts that common carriers cannot relieve themselves from liability for negligence either by they may, by contraot with notice or by speciaJ contract, the shipper, stipulate for such 8. reasoDable modification of their common law liability as is not inoonsistent with their eBsential duties to the public. They cannot, therefore, exonerate themselves from liability for the negligence of their own agents, but may from the acts or misconduct of persons over whom they have no authority or control, actual or legal. York CO. T. Central R. 3 Wall. 107; R. Co. v. Lockwood, 17 Wall. 357; Bank of Kentucky v. Adams Exp. Co. 93 U. S. 174. The plaintiffs' properly was destroyed by the negligence of 'he railroad company, the agent of the defendant, and the defendant is, therefore, liable, notwithstanding the stipulation against liability for fire. The precise question presented under the stipulation limiting the defendant's liability to $50, in the absence of a statement of the real value in the receipt, was decided in Berry v. Dinsmore, where at nisi prius I held a. stipulation valid. After a more careful consideration of the questio:Q. than I was able to give I am confilmed in the conclusion then reached. The case of Hopkin. v. Wescott, 6 Blatoh. 64, which was not then called to my attention, is a controlling authority in this circuit, and decides that such a limitation is binding upon the shipper. To the same effect are Belger v. Dinsmore, 51 N. Y. 166; Kitkw.nd v. Dinsmore 62 N. Y. 35; Wagntr v. Dins71W1'6, 62 N. Y. 171 And 70 N. Y. 410. The rigU of a carrier to exact fair information as to the value of property confided to his care h'lS always been recognillled, He has the right to insist that, his oompensation be mea.sured by his risk, and, obviously, the degree of care which
he will exercise will measurably depend upon the extent of the responsibility he may incur. While it is not primarily the duty of the shipper to inform the carrier of the nature or value of the contents of the parcel sent, the carrier has the right to make inquiry and receive a true answer, and any concealment on ihe part of the shipper, intended to mislead the carrier n8 to the character or value of the property, and which doei mislead, is I:t fraud which absoly-es the carrier from responsibility. Sewell v.'AUen, 6 Wetld.347; PMUip8 v. Earu, 8 Pick. 182; Brooke v. Pickwick, 4 Bing. R. 218; Riley v. Horner, 5 Bing. 217; Sleat v.Flagg, 5 B. & A. 342; Cro'Uch v. L. « N. M. R. 14 C. B. 255. The question has generally arisen in cases where the carrier sought to protect himself under the terms of a general notice or regulation requiring the shipper to state the value or character of thQ property, and when the notice or regulation was brought to the knowledge of the shipper the carrier was protected by it. How much stronger is the case when, as here, the shipper enters into a contract by which he agrees that the property shall be valued at $50 in the absence of specific statement of the xeal value. In Express Co. v. Caldwell, 21 Wall. 264, a clause in a contract relieving the carrier from liability for any loss or damage to a package whatever, unless claim should be made therefor within a limited time, was sustained as a reasonable condition. .The stiplllation in the present case is plainly as reasonable as was that in Express Co. v. Caldwell. In effect it exacts from the shipper only that fair information of the extent of the carrier's risk to which he is entitled. Upon the argument it was contended that the stipulation could not rwield the carrier from the consequences of own misfeasance. Undoubtedly a carrier may so conduct him!:leU with property to him as to divest himself of the character of Or carrier. In such case his contract would not protect him. This is noi snch a case. Judgment is rendered for plaintiff for $50, with interest from January 3,
(Circuit OOU1't, S. D. New York.
BILL IN EQUITY-MULTIFARIOUSNESS-FRAUDULENT CONVEYANCE TO WIFE-GRANTEE, EXECUTRIX OF DECEASED GRANTOR.-A bill in equity for an account against the executrix and former wife of a deceased trustee is not bad for multifariousness because it prays, among other things, for an account of the value of certain property fraudulently conveyed to such executrix by the testator in his life-time, in order to avoid liability for a breach of trust.
In Equity. The wife, defenaant, 18 executrix of the will of George 1. Beatty, who was trustee, under the will of James Beatty, of lands and stocks, to receive and collect the rents, dividends and profits thereof, and pay the same to James L. Beatty during his life, with remainder over to the next of kin, who are the orators, and who disposed of the property absolutely, and pai-i over the avails, to the amount of about $10,000, to the life tenant, who lost the same, and which has never wen paid to the orators. She has assets belonging to the estate of· her testator, and it is not contended but that she should account for those, and be decreed to pay the amount to the orators, but they are largely deficient. After the loss of the funds by the life-tenant, he discharged the trustee from all further claim in his behalf ; and the trustee conveyed to this defendant, then his wife, without any consideration, property of his own to a considerable amount, and more than was a reasonable provision for her, in view of his liability for violating this trust, and probably intending to defeat that liability, which she understood. It is argued, in her behalf, that this property, so conveyed to her, cannot be reached to satisfy thi3 claim, and that if it can be reached at all, it cannot be in this suit, with the claim against her as executrix. There is no pretence but that the claim of the orators was a just and lawful one against her testator in hit; life-time, nor but that it is a lawful one against his estate now. It seems v.1.no.6-25-
to follow, very plainly, that this voluntary conveyance of his property, for the purpose of defeating that claim, was fraudulent and void, as against the holders of the claim. No reference to particular authorities is necessary to establish this. But it is said that if that property can be followed into the hands of the wife defendant at all, the claim for it is distinct from that against her as executrix for the property belonging to the estate, of which she is executrix, and that joining the two makes the bill bad for multifariousness, which objection was seasonably taken; and Ward v. Duke of Northumberland, 2 Aust. 469, and Sabridge v. Hyde, Jacobs, 157, are strongly relied upon in support of the objection. The claims, however, are not distinct. There is really but one claim, and that is in favor of the orators against the estate of the testator in her hands as executrix. That property is claimed because, as between her an,d the orators, it is a part of the same estate, to be reached in her hands in the same manner as any other part. If the property had been conveyed to a third party it would have been different. Then a suit against the other party would have been necessary, and she would be the proper party to bring it, and if she refused the orators could proceed against both. Hagan v. Walker, 14 How. 29. The cases mentioned as relied upon are both distinguishable from this in this respect. The orator in each had claims against the testator and against the executor in the life-time of the testator, each independant of the other. In attempting to enforce both in one suit they were pursuing distinct claims, and not, as is only attempted here, one claim against the same person in the same right. Let a decree be entered for an account of the amount due the orators, and of the estate of the testator in the hands of the defendant executrix, and of the value of the personal estate mentioned in the bill as conveyed by the testator to her in his life-time, and the amount of the estate of the testator in her hands, and if necessary that so conveyed, or so much as is necessary, be paid to the orators in satisfaction of their claim, with costs.