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risks from the acts and condition of the horses are risks beyond the control of the defendant, and are therefore assumed by the plaintiff, shows, if more were needed than the other language of the contract, that the risks and liability assumed by the defendant in the remainder of the same paragraph are those not beyond but within the control of the defendant, and therefore apply to loss through the negligence of the defendant. It must be presumed from the terms of the bill of lading, and without any evidence on the subject, and especially in the absence of any evidence to the contrary, that, as the rate of freight expressed is stated to be on the condition that the defendant assumes a liability to the extent of the agreed valuation named, the rate of freight is graduated by the valuation. Especially is this so, as the bill of lading is what its heading states it to be, "a limited liability live-stock contract,” and is confined to live-stock. Although the horses, being race-horses, may, aside from the bill of lading, have been of greater real value than that specified in it, whatever passed between the parties before the bill of lading was signed, was merged in the valuation it fixed; and it is not asserted that the plaintiff named any value, greater or less, otherwise than as he assented to The value named in the bill of lading, by signing it. The presumption is conclusive that if the liability had been assumed on a valuation as great as that now alleged, a higher rate of freight would have been charged. The rate of freight is indissolubly bound up with the valuation. If the rate of freight named was the only one offered by the defendant, it was because it was a rate measured by the valuation expressed. If the valuation was fixed at that expressed, when the real value was larger, it was because the rate of freight named was measured by the low valuation. The plaintiff cannot claim a higher valuation on the agreed rate of freight.
It is further contended by the plaintiff that the defendant was forbidden, by public policy, to fix a limit for its liability for a loss by negligence, at an amount less than the actual loss by such negligence. As a minor proposition, a distinction is sought to be drawn between a case where a shipper, on requirement, states the value of the property, and a rate of freight is fixed accordingly, and the present case. It is said that, while in the former case the shipper may be confined to the value he so fixed, in the event of a loss by neg. ligence, the same rule does not apply to a case where the valuation inserted in the contract is not a valuation previously named by the shipper. But we see no sound reason for this distinction. The valuation named was the "agreed valuation,” the one on which the minds of the parties met, however it came to be fixed, and the rate of freight was based on that valuation, and was fixed on condition that such was the valuation, and that the liability should go to that extent and no further. We are, therefore, brought back to the main question. It is the law of this court that a common carrier may, by special contract, limit his common-law liability; but that he cannot stipulate for exemption from the consequences of his own negligence or that of his servants. New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344; York Co. v. Central R. R. 3 Wall. 107; Railroad Co. v. Lockwood, 17 Wall. 357; Express Co. v. Caldwell, 21 Wall. 264; Railroad Co. v. Pratt, 22 Wall. 123; Bank of Kentucky v. Adams Exp. Co. 93 U.S. 174; Railway Co. v. Stevens, 95 U. S. 655.
In York Co. v. Central R. R. 3 Wall. 107, a contract was upheld exempting a carrier from liability for loss by fire, the fire not having occurred through any want of due care on his part. The court said that a common carrier may "prescribe regulations to protect himself against imposition and fraud, and fix a rate of charges proportionate to the magnitude of the risks he may have to encounter." In Railroad Co. v. Lockwood, 17 Wall. 357, the following proposititions were laid down by this court: (1) A common carrier cannot lawfully stipulate for exemption from responsibility when such exemption is not iust and reasonable in the eye of the law. (2) It is not just
and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants. (3) These rules apply both to carriers of goods and to carriers of passengers for hire, and with special force to the latter. * The basis of the decision was that the exemption was to have applied to it the test of its justness and reasonable character. It was said that the contracts of the carrier “must rest upon their fairness and reasonableness," and that it was just and reasonable that carriers should not be responsible for losses happening by sheer accident, or chargeable for valuable articles liable to be damaged, unless apprised of their character or value. That case was one of a drover traveling on a stock train on a railroad to look after his cattle, and having a free pass for that purpose, who had signed an agreement taking all risk of injury to his cattle and of personal injury to himself, and who was injured by the negligence of the railroad company or its servants. In Express Co. v. Caldweli, ž1 Wall. 264, this court held that an agreement made by an express company, a common carrier in the habit of carrying small packages, that it should not be held liable for any loss or damage to a package delivered to it, unless claim should be made therefor within 90 days from its delivery to the company, was an agreement which the company could rightfully make. The court said: “It is now the settled law that the responsibility of a common carrier may be limited by an express agreement made with his employer at the time of his accepting goods for transportation, provided the limitation be such as the law can recognize as reasonable, and not inconsistent with sound public policy.” It was held that the stipulation as to the time of making a claim was reasonable and intrinsically just, and could not be regarded as a stipulation for exemption from responsibility for negligence, because it did not relieve the carrier from any obligation to exercise diligence, fidelity, and care.
On the other hand, in Bank of Kentucky v. Adams Exp. Co. 93 U. S. 174, it was held that a stipulation by an express company that it should not be liable for loss by fire could not be reasonably construed as exempting it from liability from loss by fire occurring through the negligence of a railroad company which it had employed as a carrier. To the views announced in these cases we adhere; but there is not in them any adjudication on the paren ticular question*now before us. It inay, however, be disposed of on princi-* ples which are well established, and which do not conflict with any of the rulings of this court. 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 inisrepresenting the nature or value of the articles, he destroys 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. 2 Kent, Comm. 603, and cases cited; Relf v. Rapp, 3 Watts & S. 21; Dunlap v. Steam-boat Co. 98 Mass. 371; Railroad Co. v. Fraloff, 100 U. $. 24. This qualification of the liability of the carrier is reasonable, and is as important as the rule which it qualifies. There is no justice in allowing the shipper to be paid a large value for an article which he has induced the carrier 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 assume. The agreement as to value, in this case, stands as if the carrier had asked the value of the horses, and had been told by the plaintiff the sum inserted in the contract.
The limitation as to value has no tendency to exempt from liability for negligence. It does not induce want of care. It exacts from 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 of 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. This principle is not a new one. In Gibbon v. Paynton, 4 Burr. 2298, the sum of £100 was hidden in scme hay in an old nail-bag and sent by a coach and lost. The plaintiff knew of a notice by the proprietor that he would not be answerable for money unless he knew what it was, but did not apprise the proprietor that there was money in the bag. The defense was upheld, Lord MANSFIELD saying: “A common carrier, in respect of the premium he is to receive, runs the risk of the goods and must make good the loss, though it happen without any fault in him, the reward making him answerable for their safe delivery. His warranty and insurance is in respect of the reward he is to receive, and the reward ought to be proportionable to the risk. If he makes a greater warranty and insurance he will take greater care, use more caution, and be at the expense of more guards or other methods of security, and therefore he ought, in reason and justice, to have a greater reward.” To the same effect is Batson v. Donovan, 4 Barn. & Ald. 21.
The subject-matter of a contract may be valued, or the damages in case of a breach may be liquidated, in advance. In the present case, the plaintiff accepted the valuation as “just and reasonable." The bill of lading did not contain a valuation of all animals at a fixed sum for each, but a graduated valuation according to the nature of the animal. It does not appear*that an unreasonable price would have been charged for a higher valuation. The decisions in this country are at variance. The rule which we regard as the proper one in the case at bar is supported in Newburger v. Howard, 6 Phila 174; Squire v. New York Cent. R. Co. 98 Mass. 239; Hopkins v. Westcott, 6 Blatchf. 64; Belger v. Dinsmore, 51 N. Y. 166; Oppenheimer v. U.S. Exp. Co. 69 III. 62; Magnin v. Dinsmore, 56 N. Y. 168, and 62 N. Y. 35, and 70 N. Y. 410; Earnest v. Express Co. 1 Woods, 573; Elkins v. Empire Transportation Co. 81* Pa. St. 315; South & North Ala. R. Co. v. Henlein, 52 Ala. 606; Same v. 56 Ala. 58; Muser v. Holland, 17 Blatchf. 412; Harvey v. Terre Haute R. Co. 74 Mo. 538; and Graves v. Lake Shore Ry. Co. 137 Mass. 33. The contrary rule is sustained in Southern Exp. Co. v. Moon, 39 Miss. 822; The City of Norwich, 4 Ben. 271; U. 8. Exp. Co. v. Backman, 28 Ohio St. 144; Black v. Goodrich Transp. Co. 55 Wis. 319; S. C. 13 N. W. Rep. 244; Chicago, St. L. & N. 0. R. CO. V. Abels, 60 Miss. 1017; Kansas City R. Co. v. Simpson, 30 Kan. 645; S. C. 2 Pac. Rep. 821; and Moulton v. St. Paul, etc., R. Co. 31 Minn. 85; S. C. 16 N. W. Rep. 497. We have given consideration to the views taken in these latter cases, but are unable to concur in their conclusions. Applying to the case in hand the proper test to be applied to every limitation of the common-law liability of a carrier--its just and reasonable character-we have reached the result indicated. In Great Britain, a statute directs this test to be applied by the courts. The same
rule is the proper one to be applied in this country, in the absence of any statute.
As relating to the question of the exemption of a carrier from liability beyond a declared value, reference may be made to section 4281 of the Revised Statutes of the United States, (a re-enactment of section 69 of the act of February 28, 1871, c. 100, 16 St. 458,) which provides that if any shipper of certain enumerated articles, which are generally articles of large value in small bulk, “shall lade the same, as freight or baggage, on any vessel, without, at the time of such lading, giving to the master, clerk, agent, or owner of such vessel receiving* the same a written notice of the true character and value thereof, and having the same entered on the bill of lading therefor, the master and owner of such vessel shall not be liable as carriers thereof in any form or manner, nor shall any such master or owner be liable for any such goods beyond the value and according to the character thereof so notified and entered.” The principle of this statute is in harmony with the decision at which we have arrived.
The plaintiff did not, in the course of the trial, or by any request to instruct the jury, or by any exception to the charge, raise the point that he did not fully understand the terms of the bill of lading, or that he was induced to sign it by any fraud or under any misapprehension. On the contrary, he offered and read in evidence the bill of lading as evidence of the contract on which he sued. The distinct ground of our decision in the case at bar is that, where a contract of the kind, signed by the shipper, is fairly made, agreeing on a valuation of the property 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 wbich the carrier may be responsible and the freight he receives, and of protecting himself against extravagant and fanciful valuations. Squire v. New York Cent. R. Co. 98 Mass. 239, 245, and cases there cited.
There was no error in excluding the evidence offered, or in the charge to the jury, and the judgment of the circuit court is affirmed.
(112 U. S. 326)
(November 24, 1884.) 1. CONTRACT SUBSCRIPTION TO RAILROAD STOCK BY MUNICIPALITY PEB ITS AUTHORIZED
An actual manual subscription on the books of a railroad company is not indispensably necessary to bind a municipality as a subscriber to the capital stock. If the body or agency, having authority to make such a subscription, passes an ordinance or resolution to the effect that it does thereby, in the name and on behalf of the municipality, subscribe a specified amount of stock, and presents a copy of that ordinance or resolution to the company for acceptance as a subscription, and the company does, in fact, accept, and notifies the municipality or its proper agent to that effect, the contract of subscription is complete, and binds the parties
according to its terms. 2. SAME_COUNTY COURT-AGENT—NOTICE OF ACCEPTANCE BY COMPANY.
A party, appointed by the county court agent to make a subscription to stock, being present at the meeting when the subscription was made and accepted, no other notice to the county court of the acceptance was necessary. In Error to the Circuit Court of the United States for the Western District of Missouri.
*G. G. Vest and John R. Shepley, for plaintiff in error. T. K. Skinker and J. B. Henderson, for defendants in error.
WAITE, C. J. This case was before this court at the October term, 1877, and is reported as County of Bates v. Winters, 97 U. S. 83. It came up then
on a special finding of facts, and the judgment below was reversed because it did not appear that the county court had actually subscribed to the capital stock of the Lexington, Chillicothe & Gulf Railroad Company before the consolidation. Instead, however, of directing a judgment to be entered in favor of the county on those findings, as would have been the proper practice in the absence of any showing to the contrary, (City of Fort Scott v. Hickman, ante, 56,) a new trial, “according to the views expressed in the opinion, was ordered. We must presume that this was done for sufficient reasons. In the findings then presented the order of the county court for the subscription, and the appointment of Betz to make the subscription on the books of the company, are set forth substantially as in those which are now before us. The same is true of what was done by Betz, at the meeting of the directors of the company, when he presented the copy of the record of the proceedings of the county court, and the directors refused to allow him to withdraw his papers. His presence at the latter meeting was also stated, as well as his final report to the county court, and the action of the court thereon. The ground of the reversal is apparent from the following extract from the opinion of the court, (page 90,) which was delivered by Mr. Justice HUNT: “The county court did not intend their action, in June, 1870, to be final, and did not un. derstand that a subscription was thereby completed. Their vote was a declaration that the power to subscribe should be exercised, and was an authority to their agent to perfect a contract with the railroad company on the condi. tions set forth. No acceptance was made by the railroad company, no notice of acceptance was given, nor was there any act or fact which afforded a pretext for saying that the railroad company was bound by the contract of subscription. While it refused to allow the agent to withdraw his evidence of authority, it said nothing and did nothing to indicate that the minds of the parties had met upon the terms of a subscription. The county court was precise and particular in requiring those conditions to be copied in full on the books of the company, as the conditions on which the subscriptions were made; and there could be no mutual contract until the railroad company assented, on its part, to those conditions."
In considering what was necessary to complete a valid subscription, the cases of Nugent v. Supervisors, 19 Wall. 241, and County of Moultrie v. Sao ings Bank, 92 U.S. 631, were cited, and the rule upon that subject, as recognized in those cases, was in all respects approved. That rule may be stated thus: An actual manual subscription on the books of a railroad company is not indispensably necessary to bind a municipality as a subscriber to the capital stock. If the body or agency having authority to make such a subscription passes an ordinance or resolution to the effect that it does thereby, in the name and on behalf of the municipality, subscribe a specified amount of stock, and presents a copy of that ordinance or resolution to the company for acceptance as a subscription, and the company does, in fact, accept, and notifies the municipality, or its proper agent, to that effect, the contract of subscription is complete, and binds the parties according to its terms. From the findings in this case on the new trial it appears that the county court passed an order “that the sum of ninety thousand dollars be, and the same is hereby, subscribed to the capital stock of the Lexington, Chillicothe & Gulf Railroad Company in the name and in behalf of Mount Pleasant township, subject to and in pursuance of all the terms, restrictions, conditions, and limitations of the petition of the-tax-payers and residents;" and it at the same time authorized and directed Betz, who was the agent of the county to represent its interests in the company, to make the subscription on the stock. books of the company, and in making the subscription to have copied in full the orders of the court of the fifth of April, 1870, as the conditions on which the same was made. As was very properly said when the case was bere be fore, this order “was not intended to be final and self-executing.” It needed