Georgia Southern & Florida Railway Co. v. Johnson, King & Co. , 121 Ga. 231 ( 1904 )

Lamar, J.

The word “released,” as used in contracts of shipment, has from usage acquired a well-defined meaning, though .as yet it does not seem to have been judicially construed. No doubt the effect given the term will vary in the different courts, according as the law of the State permits or prohibits contracts against the results of negligence. In this State, where public policy forbids such limitation, the word must be held to mean only that the shipper agrees to relieve from all liability as against which the law allows the carrier to exempt itself by contract. See Cooper v. Raleigh & Gaston R. Co., 110 Ga. 662; Hutchinson on Carriers, § 250. But even in such cases the presumption is against the carrier, and' the burden is upon it to establish that the loss was within the exception, and not occasioned by its own negligence. Civil Code, § 2265. Here there was no explanation of the circumstances attending the loss, and, admitting its liability, the carrier tendered to the plaintiffs the value of the goods as named in the shipping receipt. This was declined, and the suit was continued for the purpose of recovering the real value of the articles shipped.

In an action of trover or damages for conversion the tort-feasor could not take advantage of his own wrong, nor lessen the measure of his liability, by invoking an agreed valuation which the plaintiff may have made for the purpose of-reducing the freight rate or securing like collateral advantage. Sav., F. & W. Ry. Co. v. Sloat, 93 Ga. 803. And where there is only a pretended valuation, the same is true; as, for example, where clothes were valued by the hundred pounds. It would have been equally arbitrary, but with more appearance of reason, to value them by the yard. But in either case it was a mere attempt to prearrange the amount of damages, in case of loss. Ga. R. Co. v. Keener, 93 Ga. 808. So, limitations in the printed bill of lading, stating that the company will not be responsible for loss of particular classes of goods beyond a specified amount. Such figures are named without inspection, before the goods .are offered, and independently of the real worth of the property. In most of the forms there is not even a pretense of valuation, but an express stipulation that the goods shall be taken as worth not more than a given sum, or that the company will not be liable beyond a given amount. Such stipulations are mere prearrangements as to the amount of damage, and will not be enforced so as to exempt a negligent carrier from liability for the true value. Wood v. So. Ex. Co., 95 Ga. 452. And this is so whether the shipper merely accepts a bill of lading containing such stipulation, or assents thereto in writing. Central of Ga. Ry. Co. v. Murphey, 113 Ga. 514. Candies do in fact vary in quality and value, from the cheapest stick candy to expensive French candies. A classification, therefore, according to value is not arbitrary. Neither is it unreasonable or unlawful for the rate to be proportioned with reference to the value and to the amount for which the carrier should be held responsible in the event of loss. Freight rates are not based solely upon the weight of goods and the space they will occupy in the cars. Nor does diligence require that all goods shall receive the same care. Some may be properly loaded on open cars. Others may be forwarded by regular freight-trains; others,' on account of their perishable nature,'- must be sent by fast freight; others, because of their great inherent• valúe, must be shipped under special precautions to prevent loss by theft. The difference in the quality and value may create a difference in the cost of shipment. The carrier is entitled to some compensation on the basis of the difference in care and expense attending the shipment, and also for the greater or less liability in case of loss or damage. He is primarily an insurer, and as much entitled to a premium as an insurance company. If the latter may charge more for insuring goods worth $5,000 than for those worth $1,000, so may the carrier, for the risk incident to handling candy worth $1 per pound, charge more than when he hauls that worth only six cents a pound.

Here the shippers had an option.. They could have forwarded the goods without any statement as to their classification or valuation, and in case of loss would have been entitled to stand upon their common-law right; instead of which they classified and valued. The contents of the boxes were unknown to the company. The statement on the ticket put the goods in the fourth instead of the first class as completely as if they had been called canned goods, or any other article listed in the fourth class. The carrier had the right to rely on the classification and valuation made by the owner. It fixed' a rate based on such valuation. The shipper got the benefit of the rate and' the carrier suffered the loss. And while there is much conflict on the subject, the previous rulings in this State recognize that the shipper is estopped by such valuation and can not recover beyond that amount where the loss was not occasioned by the carrier’s conversion. Central of Ga. Ry. Co. v. Murphey, 113 Ga. 514; Ga. R. Co. v. Keener, 93 Ga. 810; Southern Ry. Co. v. Horner, 115 Ga. 381 (2). But it is claimed that the bills of lading prepared by the company contained a stipulation that “ candy valuation six cents released ” went forward as fourth class and on the lower rate, that this was an arbitrary valuation, and a mere ■ attempt to prearrange the amount of damages in case of loss. But the sufficient answer to this proposition is that here the contract of shipment was not evidenced by such instrument. Nor can we know from the record the other terms of such bill of lading, nor whether thereby the shipper had an option. But even in the case of bills of lading containing such stipulations, if the contents of the package, and value are' unknown, and the carrier relies on the valuation made by the parties, and bases its rate accordingly, the mere fact that the appropriate bill of lading has been printed in advance, and to meet the requirements of a particular class of business, and to save having to write out the proper contract, would not change the principle. It comes back always to the question as to whether there has been a bona fide valuation, or whether there -is only an attempt by the company to limit liability regardless of value. Judgment reversed.

All the Justices concur.