Louisville & Nashville R. R. v. Jones , 12 Ala. App. 347 ( 1914 )

PER CURIAM.

The effort of the defendant (the appellant here) was to give to the valuation of $5 each, stated in tbe contract of shipment, of the two hogs, shipped from Montgomery to Bessemer, Ala., the death of which was due to the defendant’s negligence, the effect of limiting the amount recoverable by the plaintiff to' that stated in such valuation, with interest thereon, though it was admitted that the two' hogs were really worth $100 each. It is settled in this state that a common carrier may limit its common-law liability by a stipulation in the contract of carriage, assented to by the shipper, which discloses a purpose to secure a just and reasonable proportion between the amount charged fon the carriage and the amount for which the carrier is to be liable in the event of loss or injury. But, in the absence of a statute governing the matter, it is an established rule applicable to such contracts for the carriage of property between points in this state that the carriér cannot limit its liability for the negligent loss or destruction of the thing carried to a valuation of it agreed upon in consideration of a reduced charge for its carriage when such valuation is greatly below the real worth of the property; such a stipulation as to value being regarded as unreasonable and the enforcement of it against public policy, where the reduction in the freight charge from that which would have been made in the absence of such agreement is greatly less in proportion than the unreasonable depreciation of the real value of the thing carried which is shown by the stipulated valuation of it.—Southern Ry. Co. v. Jones, 132 Ala. 437, 31 South. 501; Alabama. Great Southern R. Co. v. Little, 71 Ala. 611; Mouton v. Louisville & Nashville R. Co., 128 Ala. 537, 29 South. 602; Southern Express Co. v. Owens, 146 Ala. 412, 41 South. 752; Broadwood v. Southern Express Co., 148 Ala. 17, 41 South. 769.

It is contended by the counsel for the appellant that, in consequence of the regulation of railroad freight rates which has been put into effect since the cases above cited were decided, the rules stated in the opinions rendered in those cases are no longer applicable, a.s now the rate chargeable when there is no stipulated valuation oí the thing carried and no limitation of the carrier’s common-law liability, and that chargeable when the value of the subject of the carriage and a limitation of the common-law liability of the carrier are agreed upon, are not such as the carrier may choose to impose, but each of such rates is to be regarded as a reasonable and proper one because it has been fixed by statute or filed with and approved by the State Railroad Commission. And it is contended that a result of the state’s control of the rate to be charged in the one case or the other is that the valuation stated in a contract of shipment, which provides for a duly authorized reduced rate of freight in consideration of a limitation of the carrier’s common-law liability, is to be regarded as governing in the determination of the amount for which the carrier is liable in the event of an injury to or destruction of the property which is due to the carrier’s negligence. We are of opinion that a consideration of these contentions by this court is foreclosed by the ruling made in the case of A. G. S. Ry. Co. v. McCleskey, 106 Ala. 630, 49 South. 438. We may say that we have not been referred to any statutory provision which seems to us to indicate the existence of a legislative purpose to enable a common carrier to fix the limit of its liability for the negligent destruction of or injury to property undertaken to be carried by a gross undervaluation of that property, whether such undervaluation is assented to by the shipper or not. The existence of such a provision hardly can be inferred from the fact that the shipper is given his choice between two legally established rates, the higher one prevailing when there is no stipulated limitation of tbe carrier’s liability, and the^ reduced one applying when a legally authorized modification of that liability is agreed upon. There seems to be nothing in the allowing of such choice to be made to indicate the legalizing of a limitation of liability which was not permissible before the rates were legally fixed. The conclusion is that there was no error in the rulings which have been assigned as errors.

Affirmed.

Note. — The foregoing opinion was prepared by Presiding Judge Walker before his retirement from the Court of Appeals, and has been adopted by the court.