By the strict rule of the cominon law, the carrier was liable for injuries resulting from causes beyond his control, and which were not the result of his act or the omission of his duty, the exception being, that he was not liable for injury or loss resulting from the act of God or the public enemy. Thus he must account for goods received for transportation, even though they be destroyed by fire without his fault. The rule has generally been so far relaxed that the carrier may, by special contract, exempt himself from this strict liability imposed by the common law, but the weight of authority, in our judg ment, holds, as this court has uniformly held, that he may not exempt himself from liability for damages resulting from the gross negligence or willful misconduct of himself or of his servants. The law does not authorize common carriers to fix, arbitrarily, the value of goods delivered to them for transportation, and thereby limit their liability in case of loss. If a value should be fixed by the carrier, as before stated, and the contract of shipment was based thereon, the amount thus fixed would ordinarily determine the liability of the carrier. It would not, however, if untruthfully given in respect of property that the carrier had less opportunity to inspect and know the value of than the shipper, estop the carrier to show that the value was less than that fixed. It cannot be said that the clause in this contract, attempting to limit a recovery to one hundred dollars, amounts to an admission on the part of the shipper that the horse was worth no more than that sum. It was not made by the shipper, or intended as a statement of the value of the property, but was intended to fix a limit to the defendant's liability in case of loss; and if the contract had not been void, and had been knowingly entered into by the shipper or his authorized agent, it might have furnished the measure of recovery. If the injury to the property, and damage resulting, had been caused by any casualty against which the carrier might contract, the tender made by the defendant of the amounts named in the contract might have been a bar to a recovery, if it had been kept good. It is manifest from the foregoing that the tender was not effectual to defeat a recovery by the plaintiff.

As before said, we are not unmindful that a contrary rule has been announced by courts of the highest respectability, and among then the supreme court of the United States. Notwithstanding the great respect we entertain for the very learned and eminent tribunals which have thus held, we are

so strongly committed to the doctrine before announced, that we feel compelled to adhere to the rule so long and firmly established in this state; and notwithstanding the persuasive weight of the rulings of these eminent tribunals, and of the reasons given for their decisions, we are still satisfied that the rule laid down in this state is based upon sound reason and a wise public policy, and is also supported by the decided weight of authority.

In this case, the agent of appellant came to the agent of the appellee and others, and offered special inducements to ship their animals over appellant's road. No representation was made by appellee or his agent to induce the fixing of the value, either of the property shipped, or of the services of appellant for its carriage. It is insisted that the company had two classifications at the time, under which live-stock was shipped; that one limited the amount of recovery for a horse to one hundred dollars in case of loss, and that in the other class there was no limitation, but a higher freight rate was charged. At the time of this shipment no notice was given of any such classification. The appellant's agent received the property, charged what he saw proper, and made out the bill of lading without asking any questions as to the value of the property. The fact that such classification existed could in no way affect the plaintiff's right of recovery, unless notice thereof had been brought home in some way to the plaintiff or his agent. But it cannot avail, in any event, as against the right of recovery here. Plaintiff was guilty of no misconduct which would estop him from asserting his right to recover the value of his property, and it was unlawful for the railway carrier to contract for exemption from liability resulting from the gross negligence of its servants.

Some other minor points are made, which, however, have been disposed of by what has already been said, and no further discussion need be indulged.

We find no substantial error in the record, and the judg ment of the appellate court will be affirmed. Judgment affirmed.

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POWER OF COMMON CARRIER TO LIMIT THE AMOUNT OF HIS LIABILITY, IN THE EVENT OF LOSS, TO A SUM LESS THAN THE INJURY SUSTAINED. Upon the question whether or not a common carrier can limit his liability for loss of or damage to goods delivered to him for transportation to a sum less than their actual value, when such loss or damage results from his negligence, or from the negligence of his agents or servants, the authorities AM. ST. REP., VOL. XXIII. - 38

are conflicting. One line of authorities holds that where a contract of carriage, signed by the shipper, is made with a common carrier, agreeing on a valuation of the property to be carried, with the rate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation, even in case of loss or damage by the negligence of the carrier, the contract will be upheld as a proper and lawful mode of securing a due proportion between the amount for which the carrier may be re sponsible and the freight he receives, and of protecting himself against extravagant and fanciful valuations: Hart v. Pennsylvania R. R. Co., 112 U. S. 331; Hopkins v. Westcott, 6 Blatchf. 64; Muser v. Holland, 17 Blatchf. 412; Earnest v. Express Co., 1 Woods, 573; The Hadji, 18 Fed. Rep. 459; The Lydian Monarch, 23 Fed. Rep. 298; South & N. Ala. R. R. Co. v. Henlein, 52 Ala. 606; 23 Am. Rep. 578; South & N. Ala. R. R. Co. v. Henlein, 56 Ala. 368; Louisville etc. R. R. Co. v. Oden, 80 Ala. 38; St. Louis etc. Ry Co. v. Lesser, 46 Ark. 236; St. Louis etc. R'y Co. v. Weakly, 50 Ark. 397; 7 Am. St. Rep. 104; Brehme v. Adams Ex. Co., 25 Md. 328; Squire v. New York Cent. R. R. Co., 98 Mass. 239; 93 Am. Dec. 162; Graves v. Lake Shore etc. R. R. Co., 137 Mass. 33; 50 Am. Rep. 282; Hill v. Boston etc. R. R. Co., 144 Mass. 284; Brown v. Cunard S. S. Co., 147 Mass. 58; Harvey v. Terre Haute etc. R. R. Co., 14 Mo. 538; Brown v. Wabash etc. R'y Co., 18 Mo. App. 568; Durgin v. American Ex. Co., Sup. Ct. N. H., July 25, 1890; Duntley v. Boston etc. R. R. Co., Sup. Ct. N. H., July 26, 1890; Belger v. Dinsmore, 51 N. Y. 166; 10 Am. Rep. 575; Magnin v. Dinsmore, 56 N. Y. 168; Steers v. Liverpool etc. S. S. Co., 57 N. Y. 1; 15 Am. Rep. 453; May nin v. Dinsmore, 62 N. Y. 35; 20 Am. Rep. 442; Magnin v. Dinsmore, 70 N. Y. 410; 26 Am. Rep. 608; Richmond etc. R. R. Co. v. Payne, 86 Va. 481; Hutchinson on Carriers, sec. 249.

The arguments in favor of this doctrine are ably presented by Mr. Justice Blatchford in delivering the opinion of the court in Hart v. Pennsylvania R. R. Co., 112 U. S. 331, 340, in the following words: "As a general rule, and in the absence of fraud or imposition, a common carrier is answerable for the loss of a package of goods, though he is ignorant of its contents, and though its contents are ever so valuable, if he does not make a special acceptance. This is reasonable, because he can always guard himself by a special acceptance, or by insisting on being informed of the nature and value of the articles before receiving them. If the shipper is guilty of fraud or imposition, by misrepresenting the nature or value of the articles, he a stroys his claim to indemnity, because he has attempted to deprive the carrier of the right to be compensated in proportion to the value of the articles and the consequent risk assumed, and what he has done has tended to lessen the vigilance the carrier would otherwise have bestowed. . . . . This qualification of the liability of the carrier is reasonable, and is as im portant as the rule which it qualities. There is no justice in allowing the shipper to be paid a large value for an article which he has induced the car. rier to take at a low rate of freight on the assertion and agreement that its value is a less sum than that claimed after a loss. It is just to hold the shipper to his agreement, fairly made, as to value, even where the loss or injury has occurred through the negligence of the carrier. The effect of the agreement is to cheapen the freight and secure the carriage, if there is no loss; and the effect of disregarding the agreement after a loss is to expose the carrier to a greater risk than the parties intended he should The limitation as to value has no tendency to exempt from liability for neg.1_ence. It does not induce want of care. It exacts from

assume.

the carrier the measure of care due to the value agreed on. The carrier is bound to respond in that value for negligence. The compensation for carriage is based on that value. The shipper is estopped from saying that the value is greater. The articles have no greater value, for the purposes of the contract for transportation, between the parties to that contract. The carrier must respond for negligence up to that value. It is just and reasonable that such a contract, fairly entered into, and where there is no deceit practiced on the shipper, should be upheld. There is no violation of public policy. On the contrary, it would be unjust and unreasonable, and would be repugnant to the soundest principles of fair dealing and of the freedom of contracting, and thus in conflict with public policy, if a shipper should be allowed to reap the benefit of the contract if there is no loss, and to repudiate it in case of loss."

DECISIONS HOLDING CONTRARY DOCTRINE. Another line of authorities, however, holds that the carrier cannot, even by express contract, restrict the measure of damages recoverable in case of loss or damage resulting from his negligence, or exempt himself from any part of his responsibility for his neg. ligence. The ground upon which these cases proceed is, that if a common carrier cannot relieve himself from total liability for loss or damage result. ing from his negligence, he cannot exempt himself from a part of his liability: The City of Norwich, 4 Ben. 271; Galt v. Adams Ex. Co., McAr. & M. 124; 48 Am. Rep. 742; Adams Ex. Co. v. Stettaners, 61 Ill. 184; 14 Am. Rep. 57; Boscowitz v. Adams Ex. Co., 93 Ill. 523; 34 Am. Rep. 191; Chicago etc. R'y Co. v. Harmon, 12 Ill. App. 54; Kansas City etc. R. R. Co. v. Simpson, 30 Kan. 615; 46 Am. Rep. 104; Kember v. Southern Ex. Co., 22 La. Ann. 158; 2 Am. Rep. 719; Moulton v. St. Paul etc. R'y Co., 31 Minn. 85; 47 Am. Rep. 781; Southern Ex. Co. v. Moon, 39 Miss. 822; Chicago etc. R. R. Co. v. Abels, 60 Miss. 1017; Southern Ex. Co. v. Seidle, 67 Miss. 609; United States Ex. Co. v. Backman, 28 Ohio St. 144; Farnham v. Camden & A. R. R. Co., 55 Pa. St. 53; Grogan v. Adams Ex. Co., 114 Pa. St. 523; 60 Am. Rep. 360; Weiller v. Pennsylvania R. R. Co., 134 Pa. St. 310; 19 Am. St. Rep. 700; Coward v. Exist Tennessee etc. R. R. Co., 16 Lea, 225; 57 Am. Rep. 226; Railway Co. v. Wynn, 88 Tenn. 320; Southern Pac. R'y Co. v. Maddox, 75 Tex. 300; Black v. Goodrich T. Co., 55 Wis. 319; 42 Am. Rep. 713. Campbell, C. J., in delivering the opinion of the court in Chicago etc. R. R. Co. v. Abels, 60 Miss. 1025, said: "If in fault, the carrier should make compensation by paying the dam age done, and should not be allowed to stipulate in advance for a diminished liability below the real loss sustained by the fault which creates liability. To allow that would defeat the politic rule against stipulating for exemption from the consequences of negligence or misconduct." Dickinson, J., delivering the opinion of the court in Moulton v. St. Paul etc. R'y Co., 31 Minn. 85, 47 Am. Rep. 781, said: "The same reasons which forbid that a common carrier should, even by express contract, be absolved from liability for his own negligence stand also in the way of any arbitrary preadjustment of the measure of damages, where the carrier is partially relieved from such liabil ity. It would indeed be absurd to say that the requirement of the law as to such responsibility of the carrier is absolute, and cannot be laid aside even by the agreement of the parties, but that one half or three fourths of this burden which the law compels the carrier to bear may be laid aside, by means of a contract limiting the recovery of damages to one half or one fourth of the known value of the property. This would be mere evasion, which would not be tolerated." And James, J., delivering the opinion of the court in Galt v. Adams Ex. Co., McAr. & M. 124, 48 Am. Rep. 742, said: We hold, then,

that the principle of law which for considerations of public welfare forbids a common carrier to bargain in particular cases for complete exemption from responsibility for a violation of his duties, forbids him to impair bis obligations to the community by bargaining in particular cases for an exemption from a considerable part of that responsibility. The ground on which the rule is based, that even the shipper's perfect consent cannot wholly relieve the carrier, is, that the subject which he undertakes to regulate by contract, is not his own, but a public right. . . . . No single person is allowed to agree that such a carrier, or that any carrier who owes a public duty, may with impunity be negligent in his case, for the reason that the carrier is thereby invited to omit his duty in other cases, and thus to injure the whole community. Can it be possible that these considerations, on which the rule against total exemption is based, lose their force when the carrier is invited to violate his public duty by an agreement that he may violate it at half price? The principle of the rule is, that any agreement which operates to interfere with the public right touching the care and good faith of common carriers is an agreement against public policy and welfare, and is therefore void; and as an agreement that his negligence shall be cheap must operate in this way, it necessarily falls within that principle.”

It must be admitted that the reasoning of these decisions is very forcible, if not conclusive, especially in those states were common carriers are not permitted by contract to wholly relieve themselves from liability for loss and damage resulting from their own negligence, or that of their agents and servants.

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TENDENCY OF RECENT DECISIONS TO MODIFY RULE. There seems to be a tendency on the part of the courts of some states, even of those states that have adopted the rule of the supreme court of the United States laid down in the Hart case, in their recent decisions to somewhat modify the rule. Thus in a recent case in Alabama (Louisville & N. R. R. Co. v. Sherrod, 84 Ala. 178), Clopton, J., delivering the opinion of the court, said: "There is, however, a qualification of the rule. A common carrier exer cises a public employment, and is bound to receive and carry, at reasonable rates, any goods offered, and the means of transportation are greatly mo nopolized. Under these circumstances, a carrier will not be permit ed to take advantage of his position to coerce the shipper to agree to a limited value by a threatened charge of a high and unreasonable rate if such agreement is not made. There must be no imposition, coercion, or undue advantage. Neither can the carrier stipulate for immunity from liability for fraud or for intentional or reckless negligence. Such special contracts may be avoided by willful or wanton negligence in disregard of the rights of the shipper." In that case it was held that the shipper was free to contract or not, as he chose, and that he had contracted in consideration of a reduced rate, and the contract was held to be binding upon him. In the earlier case, in the same state, of Alabama etc. R. R. Co. v. Little, 71 Ala. 611, 615, Brickell, C. J., delivering the opinion of the court, said: "The carrier cannot stipulate for an absolute, unqualified exemption from all liability, nor can he stipulate that he will answer, in any and all events, only for a sum less than the value of the goods because in consideration of reduced rates of freight the shipper may assent to it. For immunity from liability for his own frauds, no bailee can stipulate." In that case the shipper had stipulated that in consideration of reduced rates, the loss, if any should occur, should be adjusted at an agreed valuation. The goods were lost, presumably through the negli