(123 N.E.) - THEFT-LIABILITY-FAILURE OF SHIPPER TO Failure to notify a common carrier that there was a safe in a cabinet containing valuable articles did not relieve carrier from liability where its servants broke into the safe and stole the valuable articles. the inquiry, he is chargeable with the knowl-14. CARRIERS 110 Loss of GOODS FROM edge which by ordinary diligence he would have acquired. Knowledge of facts, which, to the mind of a man of ordinary prudence, beget inquiry, is actual notice, or, in other words, is the knowledge which a reasonable investigation would have revealed. First National Bank of Paterson V. National Broadway Bank, 156 N. Y. 459, 51 N. E. 398, 42 L. R. A. 139; Baker v. Bliss, 39 N. Y. 70; Williamson v. Brown, 15 N. Y. 354; Anderson v. Blood, 152 N. Y. 285, 46 N. E. 493, 57 Am. St. Rep. 515; Peck v. Bank of America, 16 R. I. 710, 19 Atl. 369, 7 L. R. A. 826. In the case at bar a simple inquiry, by the bank of the trustee, for the reason of the countersignatures, would have revealed the existence of the general order and of its provisions. [5] The plaintiff, in virtue of the general principles of subrogation, has the rights of the obligee in the bond against the defendant. Pittsburgh-Westmoreland Coal Co. v. Kerr, 220 N. Y. 137, 115 N. E. 465; American National Bank v. Fidelity & Deposit Co., 129 Ga. 126, 58 S. E. 867, 12 Ann. Cas. 666. The judgment of the Appellate Division should be reversed, and a new trial granted; costs to abide the event. HISCOCK, C. J., and CUDDEBACK, CARDOZO, POUND, CRANE, and ANDREWS, JJ., concur. Judgment reversed, etc. (226 N. Y. 205) HEUMAN v. M. H. POWERS CO. Appeal from Supreme Court, Appellate Division, First Department. Action by Ottillie Heuman against the M. H. Powers Company. From an order of the Supreme Court, Appellate Division, First Department (175 App. Div. 627, 162 N. Y. Supp. 590), reversing a determination of the Appellate Term, which affirmed a judgment of the City Court of New York in her favor, the plaintiff appeals. Order reversed. See, also, 177 App. Div. 889, 163 N. Y. Supp. 1119. The action was begun in the City Court against the defendant, a common carrier, to recover the value of certain jewelry which was lost while in possession of the defend ant. The plaintiff employed the defendant to move her household goods from one apartment to another in the city of New York. Included in the furniture to be moved was a cabinet with a small safe inside, containing, among other things, some articles of jewelry. When the defendant was employed, the plaintiff's husband, with his wife's authority, signed a memorandum showing when and where the moving was to be done, and the defendant's charges therefor, which were $49, and containing also the following clause: "The responsibility of the company is limited to $50 for any article, together with the con (Court of Appeals of New York. April 15, tents thereof." 1919.) The property was to be moved on Saturday, and late in the afternoon a van load of furniture, including the cabinet safe, arrived at the apartment to which the goods were to be taken. The plaintiff's husband and the defendant's representative arranged that this van load of goods should be taken to the defendant's warehouse, and should be delivered to the plaintiff on the following Monday morning. When the goods were delivered on Monday it was found that the cabinet safe had been broken open, and certain articles of jewelry belonging to the plaintiff had been taken. It turned out that while the goods were in the custody of the defendant over Sunday, three of the defendant's employés broke open the safe and took the jewelry. In the City Court the plaintiff recovered a judgment against the defendant of $1,000 and costs, which was affirmed at the Appellate Term, but was reversed in the Appellate Division. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Bertram L. Kraus, of New York City, for I was relieved from its liability as a common appellant. carrier by the failure of the plaintiff to disJohn W. Browne, of New York City, for close the fact that there was a safe in the respondent. a CUDDEBACK, J. The action is for breach by the defendant of the contract of carriage. It will be observed that the memorandum signed by the plaintiff's husband contains no stipulation as to the value of the property intrusted to the defendant, but simply a clause limiting the responsibility of the defendant for any article or the contents thereof to $50. Therefore those cases which involve a stipulation between the shipper and the carrier as to the value of the goods carried to measure the extent of the carrier's liability in case of loss do not apply. D'Utassy v. Barrett, 219 N. Y. 420, 114 N. E. 786. [1] Whatever else may be said of the manner in which the defendant performed its contract, it certainly violated the commonlaw obligation of a carrier to safely carry and deliver the plaintiff's goods. The question is whether the clause quoted from the memorandum signed by the plaintiff's husband is sufficient to limit the responsibility of the defendant for the loss of the jewelry cabinet containing valuable articles. The answer to that argument is that the failure to make such disclosure did not relieve the defendant from liability for its own acts or those of its servants, which amounted to a misfeasance. Magnin v. Dinsmore, 62 N. Y. 35, 20 Am. Rep. 442; Id., 70 N. Y. 410, 26 Am. Rep. 608. I recommend that the order of the Appellate Division be reversed, and that the judgment of the Appellate Term be reinstated, with costs in this court and in the Appellate Division. 1919.) to $50. The simple and complete answer to (Court of Appeals of New York. April 22, that question is that the clause referred to, when read in the light of the decisions construing such clauses, does not even purport to limit the defendant's responsibility for the violation of duty shown in this case. 1. MANDAMUS 3(12)-CIVIL SERVICE COMMISSION-NAture of DETERMINATION-REMEDY BY CERTIORARI. Determination by a city civil service commission canceling an eligible list promulgated by it on account of irregularities, although in is neither judicial nor quasi judicial, but an administrative act, reviewable by mandamus, and not certiorari; there being no trial or judicial hearing before the commission. [2] The rule is that where a common carrier desires by special contract to exon-volving the exercise of judgment and discretion, erate itself from the effect of its own acts or omissions, or those of its employés, the special contract must openly and plainly express that intention so that it cannot be in the slightest degree misunderstood. Mynard v. Syracuse, B. & N. Y. R. R. Co., 71 N. Y. 180, 27 Am. Rep. 28; Spinetti v. Atlas S. S. Co., 80 N. Y. 71, 36 Am. Rep. 579; Gardiner v. N. Y. C. & H. R. R. R. Co., 201 N. Y. 387, 94 N. E. 876, 34 L. R. A. (N. S.) 826, Ann. Cas. 1912B, 281. [3] The clause in the memorandum is: "The responsibility of the company is limited to $50 for any article, together with the contents thereof." Plainly this clause refers to the defendant's responsibility as a carrier, and does not include the misfeasance or nonfeasance of the carrier itself or of its employés. The plaintiff had no reason to understand she was releasing them from responsibility for their own depredations. While couched in the words selected by the defendant, the clause does not, under the circumstances of this case, limit the defendant's responsibility at all. 2. MUNICIPAL CORPORATIONS 217(3)—Cıv-. IL SERVICE COMMISSION-LIST OF ELIGIBLES The rule that nonjudicial officers of limited jurisdiction, having power to do a certain act, may not vacate their orders, does not apply to the action of a city civil service commission in correcting errors and irregularities in an eligible list by setting it aside, but the commission cannot act arbitrarily in so doing. 3. MUNICIPAL CORPORATIONS 217(3)—CIVIL SERVICE COMMISSION ELIGIBLE LIST REVOCATION. The civil service commission of New York City cannot vacate an eligible list, which it has once promulgated upon its mere conclusion based upon hearsay and without proof that gross irregularities were permitted to creep into the examination. Appeal from Supreme Court, Appellate Divison, First Department. Mandamus by the people, on the relation of [4] The defendant also contends that it Mary A. Finnegan, against James E. Mc For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (123 N.E.) Bride and others, Civil Service Commission- ( same examination, but not in contemplation ers of the City of New York. From an order of such examination. After the examination of the Appellate Division (185 App. Div. 482, had been held, but before the eligible list had 173 N. Y. Supp. 43) affirming, by a divided been established, complaints were made, and court, an order of the Special Term (104 Misc. defendants made an investigation, but afterRep. 153, 172 N. Y. Supp. 11) granting a per-wards the eligible list was established on emptory writ of mandamus, defendants appeal. Affirmed. March 4, 1918, divided into two parts, one for the bureau of child hygiene and the other for the bureau of preventable diseases. Thereafter, on April 6, 1918, after further complaints, the defendants made another investigation, in which the facts were gone into more fully, and an alleged conspiracy was discovered by which a nurse who was not among the first three on the list was given an opportunity to be appointed by waivers or withdrawals of those who stood ahead of her on the list. As the result of this investigation defendants found "that gross irregularities were permitted to creep into the matter of this examination," and that "because of said irregularities the results of said examination do not meet the requirements of the Constitution, the civil service law of the state, or of the rules and regulations of the municipal civil service commission of the city of New York adopted in accordance therewith," and thereupon the commission on April 6, 1918, "resolved that the promotion POUND, J. The positions of nurse and of supervising nurse in the department of health of the city of New York are classified as competitive positions in the civil service of the city. The nurses in the department of health when appointed are assigned to either one of two bureaus, one called the bureau of child hygiene, and the other the bureau of preventable diseases. Prior to August, 1917, the cus-eligible lists of supervising nurses for the tom had grown up in the department of health of assigning some of these nurses in both bureaus to act as supervising nurses, with supervisory powers over the other nurses and a larger salary. Apparently such nurses had been assigned to act as supervising nurses without civil service examination, promotion, or otherwise. In August, 1917, the civil service commission announced that it would hold in November, 1917, a competitive examination for promotion to the position of supervising nurse, open to all of the nurses in the department who had served for a year or more. Subdivision 20 of rule XV of the Municipal Civil Service Rules of the city of New York provides what weights shall be given to the different factors of mental tests and comparative conduct, efficiency, and seniority in examinations for promotion. Prior to the examination for supervising nurse it is alleged that it was announced that the various factors in the examination should have, and that they were given, different weights from those required by said rule, although the rule, which had the force of law, was not amended, but it does not appear as a fact that the rule was thus disregarded. The examination was held on November 27, 1917, and practically all of the nurses in the department took it. The ratings of the candidates in this examination on the subject of experience were made, in part at least, on records kept by some of the acting supervising nurses who were also candidates in the bureaus of child hygiene and preventable diseases, department of health promulgated March 4th, be and they are hereby canceled." On May 15, 1918, the defendants ordered a new promotion examination for supervising nurse, and notified the nurses that such examination would be held in June, 1918. Thereupon the relator, who was No. 14 on the list entitled bureau of child hygiene, and who, if the lists were merged into one list, would be twenty-third on the merged list, commenced this proceeding, in substance asking that a writ of mandamus issue requiring the defendants, as the civil service commission of the city of New York, to reinstate the old eligible lists for promotion to the position of supervising nurse in the department of health which they had theretofore canceled, and to merge the same into one list. Thereafter the Supreme Court, at Special Term, granted the relief asked for on the ground that the commission had no power to set aside the eligible list, and, if it had the power, was not justified on the facts in taking such action. On appeal by the defendants to the Appellate Division, the final order made below was affirmed by a divided court on the ground that the commission, being a body of limited jurisdiction, was functus officio and had no power to revoke a list which it had once promulgated. [1] That the establishment of an illegal list sanctifies it in the presence of its own creator seems an impotent conclusion. The [2] Neither does the general rule apply that nonjudicial officers of special and limited jurisdistion, having power to do a certain act, may not vacate their own orders. People ex rel. Hotchkiss v. Bd. Supervisors, supra, 65 N. Y. 227; People ex rel. Chase v. Wemple, 144 N. Y. 478, 482, 39 N. E. 397. The action of the commission, had with due deliberation, upon such a matter as the establishment of an eligible list, should, for obvious reasons, be regarded as a finality, but the commission's authority thereon does not wholly cease. It certifies names therefrom for appointment. Error may be corrected by setting it aside if it was the result of illegality, irregularity in vital matters, or fraud. The commission may not act arbitrarily. Public officers or agents who exercise judgment and discretion in the performance of their duties may not revoke their determinations nor review their own orders once properly and finally made, however much they may have erred in judgment on the facts, even though injustice is the result. A mere change of mind is insufficient. Further action must, where power is not entirely spent, be for cause, with good reasons and proper motives for the correction of improper action. The commission has life and power to vacate a list which has no legal virtue whatsoever. determination of the civil service commission | ceed according to the course of the common law, was neither judicial nor quasi judicial in and whose mere errors can only be corrected by its character and the commission was not a direct proceeding in review." bound by the rule that functions of inferior judicial tribunals or of quasi judicial officers terminate with the entry of judgment and may not afterwards be altered or varied in any respect by the tribunal itself. For a short period of time it was held that the civil service commission acted quasi judicially (People ex rel. Sims v. Collier, 175 N. Y. 196, 67 N. E. 309), but this court candidly retracted the views expressed in the Sims Case in People ex rel. Schau v. McWilliams, 185 N. Y. 92, 77 N. E. 785, where it was held that the ordinary determinations of the commission, although involving the exercise of judgment, are neither judicial nor quasi judicial, for the reason that they are not based on a trial or judicial hearing before the commission which may be reviewed by certiorari. In Matter of Simons v. McGuire, 204 N. Y. 253, 257, 97 N. E. 526, 527, Werner, J., said: "The trend of the earlier cases reached its logical culmination in People ex rel. Sims v. Collier, 175 N. Y. 196 [67 N. E. 309], where it was held that the duty of classification under the Civil Service Law was quasi judicial in its nature, and was therefore not reviewable by mandamus, but by certiorari, as in other cases involving judicial functions. This was in 1903. Three years of experience under that decision demonstrated that this court had in effect assumed the functions of the civil service commissioners; for every challenged decision of these officers was brought to this court as a question [3] It is impossible to say that the action of law. The case of People ex rel. Schau v. McWilliams, 185 N. Y. 92 [77 N. E. 785], which of the commission in annulling the eligible came to us in 1906, very pointedly presented the list in the case before us was due to anything unfortunate tendencies of our decision in the more serious than a response to criticism of Sims Case, and after mature deliberation we the rating of the contestants and dissatisfacdecided to retract our earlier views and held tion with an attempted juggling with the list that the determination of a civil service com- after it had been established, whereby, mission in classifying positions in the public through waivers obtained from those at the service, although involving the exercise of judg-head of the list, candidates were pushed up ment and discretion, is more of a legislative or executive character than judicial or quasi judi cial." where they would be certified for appointment in advance of their turn. The dissatisfaction thus expressed does not appear to be due to The commission proceeded with judicial any illegal action of the commission. Corforms to investigate the charges that the ex-rection of the abuse of waivers-an abuse amination for supervising nurse was irregu- which may result in the entire thwarting of lar, but there was no trial or judicial hearing before the commission. Its action is sought to be reviewed, not by certiorari, which is appropriate to the review of a judicial act, but by mandamus which is appropriate to the review of administrative acts. The rule which forbids the reopening of a matter once judicially determined by a competent inferior tribunal does not apply. As was said in People ex rel. Hotchkiss v. Bd. Supervisors Broome Co., 65 N. Y. 222, 225: the merit system through official pressure upon candidates to yield their prior claims to certification to one more favored by the appointing power-must be sought elsewhere. The commission may not decide for itself, for the purpose of vacating an eligible list, that "gross irregularities were permitted to creep' into the matter of the examination." Where no such irregularities appear, the declaration of the commission that they exist does not create them. Here we have no proof that "There is no substantial reason for hampering fixed the relative weights of mental tests and ratings were made contrary to the rule which such a body, in its power to correct its own errors and to do right, by applying to it the tech- experience, but only a hearsay charge to that nical rules which pertain to justices' courts, and effect. The incident that some efficiency recother inferior judicial tribunals, supposed to pro-ords were kept by nurses who afterwards en (123 N.E.) tered the examination, while not commend-1 ly leads to the inference that such are of minor able, was not under the circumstances, a se- importance, or else connected with and necesrious irregularity, nor one which resulted in sarily growing out of the injuries specified, so an improper rating of any candidate. The that such a clause does not permit proof of inclear legal duty of the commission, having urally developing out of them. juries other than those specified, unless natonce established the list, was to continue it in existence as a single list for the period fixed by law, or by rule having the force of law. Hiscock, C. J., and McLaughlin, J., dissenting. Appeal from Supreme Court, Appellate The order appealed from should therefore Division, Fourth Department. be affirmed, with costs. HISCOCK, C. J., and CHASE, HOGAN, CARDOZO, MCLAUGHLIN, and ANDREWS, JJ., concur. Order affirmed. (226 N. Y. 266) KURAK v. TRAICHE. (Court of Appeals of New York. April 22, Action by Peter Kurak against Peter Traiche. From a judgment of Appellate Division (178 App. Div. 952, 165 N. Y. Supp. 1095), affirming a judgment for plaintiff upon verdict of jury for damages sustained in a collision, and from which judgment of Appellate Division two justices dissent on ground that it was error to admit evidence of paralysis under the allegations of the complaint, defendant appeals. Reversed. David B. Sugarman, of Syracuse, for appellant. Edward W. Cregg, of Syracuse, for rePERSONAL Spondent. Where a person alleges and proves that he has been injured in his person, he may recover such damages as necessarily, usually, and immediately flow therefrom, under a general allegation that damages have been sustained by reason of such injury; but a person seeking to recover damages other than such as necessarily, usually, and immediately flow from the injuries must allege and prove such special damages. 2. DAMAGES 143 ALLEGING PARTICULAR DAMAGES. Where a plaintiff attempts by his complaint to specify particular damages which he claims to have suffered from personal injuries, he thereby, at least to some extent, negatives any claim for damages other than those which he has specified. 3. DAMAGES CRANE, J. [1, 2] There is but one serious The plaintiff proved question in this case. as part of his injury for which he sought damage a paralysis of the right side of his face. There was nothing said about it in the complaint. An exception having been taken to the admission of this testimony for this reason, we are presented again with the much-discussed question of how fully a complaint should inform the defendant of the elements of damage. The cases which are numerous upon this point were fully rereviewed, and the principle clearly stated by Chase, J., in Keefe v. Lee, 197 N. Y. 68, 70, 74, 90 N. E. 344, 345, 346 (27 L. R. A. [N. S.] 837). To the rule there stated, we must 158(1)-PLEADING-PERSONAL adhere as it has been followed repeatedly INJURIES-VARIANCE. PLEADING. In personal injury action, allegations that plaintiff fractured his arm, bruised his knee, broke his ribs, sprained his back, injured his spine, and suffered a nervous shock do not sup- 158(2)-PLEADING-PERSONAL In personal injury action, complaint alleging particular injuries, "and that he was otherwise bruised, sprained, and injured in and about various parts of his body" does not permit evidence of an injury not the necessary or natural result of the specified injuries. 5. DAMAGES INJURIES. 158(2)-PLEADING-PERSONAL Where injuries are specifically stated, parts of the body mentioned, and the injuries to the parts are given, an accompanying clause of general injury to other parts of the body natural by the lower courts. "Where a person," * The complaint in this case, alleging that the plaintiff while driving his horse and wagFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |