Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Blind , 182 Ind. 398 ( 1914 )

Myers, J.

Action by appellee against appellant and one Boss, to recover damages for an alleged failure safely to carry and deliver a mare the property of appellee from Templeton, Indiana, to Huntington, Indiana. Appellee’s complaint alleged that in September, 1909, he was the owner of a standard bred racing mare of the value of $1,500, and that appellant was a railroad corporation, and common carrier for hire, and that its tracks extended through the town of Templeton, Indiana, to the city of Huntington, Indiana; that September 9, 1909, “the defendant Frank Boss was a servant in the employment of the plaintiff, and had said mare in his possession as a horse groom of plaintiff, for the purpose of accompanying the mare from the town of Temple-ton, Indiana, to the town of Huntington, Indiana; that he had no interest in the mare, except that he had the temporary possession of her as the agent and employe of the plaintiff, for the purposes aforesaid; that pursuant to the directions he had given Boss, the latter delivered the mare to the defendant at Templeton, Indiana, and on behalf of the plaintiff demanded and required of defendant company, as a common carrier, to transport the mare, and Boss in the car, as a man in charge of her, from the town of Templeton to the city of Huntington; that the defendant undertook, and agreed to transport the mare with safety, and reasonable dispatch from Templeton to Huntington, and plaintiff, by Boss, placed the mare in one of the cars of defendant, furnished by it for that purpose, and paid and became indebted and obligated to pay the transportation charges on the mare to Huntington.” Facts are alleged showing that the mare while so being transported by appellant, was by its negligence, killed, without fault or negligence on the part of appellee. It is also alleged that the defendant company ‘ ‘ claimed said Ross shipped the mare in his own name, without disclosing to said defendant that plaintiff was his principal, but that said company well knew at and before it took possession of said mare, that said mare was the property of plaintiff, and worth in the market on said day, fifteen hundred dollars”, etc.

Ross filed a disclaimer. Appellant’s demurrer to the complaint for want of facts was overruled, and it filed an answer in seven paragraphs, and the court sustained appellee’s demurrer for want of facts to the first, second and fifth of said paragraphs. There was a reply in general denial, and a plea of non est factum, to the answers, setting up a special contract of carriage, a demurrer to which for want of facts was overruled, and on the trial appellee had judgment for $1,000. The reply of non est factum denied specifically the execution of the contract by appellee, or by any one by his authority. The errors assigned are, in overruling the demurrer to the complaint, sustaining the demurrers to the first, second and fifth paragraphs of answer, respectively, overruling the demurrer to the reply of non est factum, and in overruling the motion for a new trial.

1.

Appellant’s first contention is, that the complaint does not show any consideration on the part of appellee for the contract, inasmuch as it does not allege that appellee paid, or tendered to appellant, a sum of money equal to the rate established by law. The cases cited by appellant hold, that the mere allegation that the contract was made upon full and sufficient consideration without stating the particular facts in regard to this consideration is not sufficient. However in this case, the complaint does not allege that there was a consideration, but states that appellee “paid and became indebted, and obliged to pay the charges for transportation”, etc. This sufficiently states the particular facts to show that there was a consideration for the contract, in addition to the fact that we are bound to take notice of, and presume that a schedule of rates had been fixed, and filed with the State railroad commission, and posted as required by law as a condition precedent of the carriage, and in analogy to the Interstate Commerce Act, the rate so fixed must be regarded as a sufficient consideration, and binding on both parties, and the demurrer was properly overruled as to that point, for that reason. Priddy v. Walash R. Co. (1913), 179 Ind. 483, 101 N. E. 724, and eases cited; United States v. Standard Oil Co. (1907), 155 Fed. 305, 313; Poor v. Chicago, etc., R. Co. (1907), 12 Interst. Com. R. 418.

The first paragraph of answer alleges reception of the mare for transportation from Ross, without knowledge that she was the property of appellee, and carriage under a written contract, set out, hence there could be no recovery under the contract alleged in the complaint. The second paragraph sets up the receipt of the mare for carriage, and her carriage under a written contract, set out, limiting liability to $100, and offering to consent to judgment for that amount. The third paragraph alleges the carriage under a written contract based upon a consideration of 30 cents per hundred pounds, that three horses were shipped at the same time, under the same contract at a gross weight of 11,000 pounds, and that such consideration was a sufficient consideration for the contract, and that it was fairly entered into after a tona fide opportunity to transport at a fair and reasonable rate, without limitation of liability, and that in consideration of the reduced rate, it was agreed that the valuation of each animal would not exceed $100. The fourth paragraph is the same as the third, except that it alleges a provision that no claim shall be made unless a verified claim in writing is filed with the freight agent of appellant at Cincinnati, Ohio, within five days from the date the stock is remoyed, and that no such claim was filed. The fifth paragraph alleges the carriage under the written contract, and that except for the act of February 27, 1905 (Acts 1905 p. 58, §§3918-3920 Burns 1914) of the General Assembly, setting out the title, plaintiff would have been required to count upon the written contract, and had performed its conditions on his part, and alleging the breaches relied on, and that the act is unconstitutional. The sixth paragraph is the same as the fifth, with the exception that it relies upon the failure to count on the written contract. The seventh paragraph alleges the carriage under a written contract; that appellant had filed with the State railroad commission its classification of tariffs in force at the time, which was approved by the commission, and alleges that the special rates were based upon the execution of the contract; that higher rates would have been charged .for unlimited liability; sets out the blank form of contract provided by the classification and tariff; that under the classification and tariff the rate of freight on a horse is fixed'both by weight and valuation upon an assumed weight of 5,000 pounds for the first, and 3,000 pounds for each additional horse; that the classification provided for all reasonable values and classes of animals, and that a rate may be based on an agreed value; that the unlimited liability rate was ten per cent higher; that the contract was executed after appellee had been given a dona fide opportunity to ship at the higher classification, and by the terms of the contract the maximum valuation was fixed at $100 for any one horse; and the offer to confess judgment for that sum. It will be observed that it was an intrastate shipment.

2.

It is well settled that a common carrier may enter into a contract with the shipper by which its liability is limited in consideration of a reduced rate of transportation, provided the shipper is given a full, fair and dona fide opportunity to ship under a higher rate and with unlimited liability on the part of the carrier, but it is not necessary that the shipper should have actually been offered the opportunity of shipping at the higher rate, and under the carrier’s common-law liability. If he had demanded it, that is sufficient. Cleveland, etc., R. Co. v. Hollowell (1909), 172 Ind. 466, 470, 88 N. E. 680; Kansas City, etc., R. Co. v. Albers Comm. Co. (1912), 223 U. S. 573, 32 Sup. Ct. 316, 56 L. Ed. 556; Deming & Co. v. Merchants, etc., Co. (1891), 90 Tenn. 306, 327, 17 S. W. 89, 13 L. R. A. 518; 1 Hutchinson, Carriers (3d ed.) §404.

The whole scope, tenor and apparent purpose of the State act is to make the rate fixed in the schedules, filed with the commission, or those fixed by the commission, or by the courts, the standard of reasonableness, and as based on a sufficient consideration. This seems to arise necessarily from the provisions of the act of 1907, under which this action arose, as shown by §§5534, 5540, 5541, 5543, 5545, 5549 Burns 1908, Acts 1907 p. 454. The Elkins act of 1903, with the wide scope of the Hepburn and Carmack amendments of 1906, by which §15, the rate section of the Interstate Commerce Act, was recast, furnished the basis of the State act of 1907, which was practically an adoption of the amended Interstate Commerce Act, and we must assume, with the constructions then placed upon it. Upon analogy, and the similarity of the State act to the Interstate Commerce Act, it is sufficient that the rate has been fixed, and filed, and notice of it posted. Priddy v. Wabash R. Co., supra; Kansas City, etc., R. Co. v. Carl (1913), 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683; Chicago, etc., R. Co. v. Kirby (1912), 225 U. S. 155, 32 Sup. Ct. 648, 56 L. Ed. 1033, Ann. Cas. 1914A, 501; Texas Pac. R. Co. v. Mugg (1906), 202 U. S. 242, 21 Sup. Ct. 628, 50 L. Ed. 1011; Arthur v. Texas, etc., R. Co. (1905), 139 Fed. 127, 71 C. C. A. 391. It seems to be well settled by the decisions under the Interstate Commerce Act, that where the shipper has an opportunity to ship without limitation, he can not take advantage of a special rate based upon the conditions and limitations of a special contract, and then repudiate the conditions, or limitations. Chicago, etc., R. Co. v. Cramer (1914), 232 U. S. 490, 34 Sup. Ct. 383, 58 L. Ed. 697; Missouri, etc., R. Co. v. Harriman Bros. (1913), 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690; Atchison, etc., R. Co. v. Robinson (1914), 233 U. S. 173, 34 Sup. Ct. 556, 58 L. Ed. 901; Boston, etc., R. Co. v. Hooker (1914), 233 U. S. 97, 34 Sup. Ct. 526, 58 L. Ed. 868; Kansas City, etc., R. Co. v. Carl, supra; Hart v. Pennsylvania R. Co. (1884), 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717.

The answers to which demurrers were sustained were good, and the court erred in sustaining them, unless the facts could have been proved .under the remaining answers, or the act of 1905 is invalid, or has been superseded. The facts alleged in the first, second and fifth paragraphs of answer could have been shown under the remaining answers.

3.

Appellant complains of the action of the court in overruling the demurrer to the reply of non est factum. The complaint alleges that Ross was appellee’s agent to ship the mare, and had no interest in her, and that appellant knew that she was the property of appellee. The two latter allegations are of no materiality in view of the allegation that Ross was appellee’s agent to make the shipment, which was done in his own name, and consigned to himself, for the reason that as a matter of law, appellee was bound by the act of his agent in making the shipment, and entering into the contract in the absence of fraud, collusion, deceit or overreaching in its execution, which is not alleged or claimed, where the rate is fixed, and filed with the commission as a basis for the special contract. That is, he can not claim the benefit of the contract on the one hand, and repudiate the conditions from which the benefits arise, on the other. Adams Express Co. v. Byers (1912), 177 Ind. 33, 95 N. E. 913; Adams Express Co. v. Carnahan (1902), 29 Ind. App. 606, 613, 63 N. E. 245, 64 N. E. 647, 94 Am. St. 279, note, and cases there cited; McElvain v. St. Louis, etc., R. Co. (1910), 151 Mo. App. 126, 131 S. W. 736; Donovan v. Standard Oil Co. (1898), 155 N. Y. 112, 49 N. E. 678; Hart v. Pennsylvania R. Co., supra; Chicago, etc., R. Co. v. Calumet Stock Farm (1901), 88 Am. St. 87, note; Wright v. Fargo (1908), 112 N. Y. Supp. 358, 59 Misc. 416; Nelson v. Hudson River R. Co. (1873), 48 N. Y. 498; Interstate Commerce Com. v. Delaware, etc., R. Co. (1911), 220 U. S. 235, 31 Sup. Ct. 392, 55 L. Ed. 448; Great Northern, etc., R. Co. v. O’Conner (1914), 232 U. S. 508, 34 Sup. Ct. 380, 58 L. Ed. 703; Root v. New York, etc., R. Co. (1894), 76 Hun 23, 27 N. Y. Supp. 611; Jennings v. Grand Trunk, etc., R. Co. (1889), 52 Hun 227, 5 N. Y. Supp. 140; Addoms v. Weir (1907), 56 Misc. 487, 108 N. Y. Supp. 146; Waldron v. Fargo (1900), 52 App. Div. 18, 64 N. Y. Supp. 798; Jones v. New York, etc., R. Co. (1896), 3 App. Div. 341, 38 N. Y. Supp. 284; Moriarity v. Harndens Express Co. (1862), 1 Daly (N. Y.) 227; Soumet v. National Express Co. (1873), 66 Barb. 284; York Mfg. Co. v. Illinois Cent. R. Co. (1866), 3 Wall. 107, 18 L. Ed. 170; Hill v. Boston, etc., R. Co. (1887), 144 Mass. 284, 10 N. E. 836; Squire v. New York, etc., R. Co. (1867), 98 Mass. 239, 93 Am. Dec. 162; California Powder Works v. Atlantic, etc., R. Co. (1896), 113 Cal. 329, 45 Pac. 691, 36 L. R. A. 648; Armstrong v. Chicago, etc., R. Co. (1893), 53 Minn. 183, 54 N. W. 1059; Southern Pac. R. Co. v. Maddox (1889), 75 Tex. 300, 12 S. W. 815; Ryan v. Missouri, etc., R. Co. (1885), 65 Tex. 13, 57 Am. Rep. 589; Van Schaack v. Northern Transp. Co. (1872), 3 Biss. 394, Fed. Cas. 16,876; Chicago, etc., R. Co. v. Calumet Stock Farm (1901), 194 Ill. 9, 61 N. E. 1095, 88 Am. St. 87; Merchants, etc., Co. v. Joesting (1878), 89 Ill. 152; Illinois Cent. R. Co. v. Morrison (1857), 19 Ill. 135; Wabash R. Co. v. Curtis (1907), 134 Ill. App. 409; Brown v. Louisville, etc., R. Co. (1890), 36 Ill. App. 140; Illinois Cent. R. Co. v. Jonte (1883), 13 Ill. App. 424; Redfield, Carriers §52; 1 Hutchinson, Carriers (3d ed.) §§265, 266, 457; Wheeler, Carriers 274; Ray, Neg. of Imp. Duties §137; 1 Clark & Skyles, Agency §286; 5 Am. and Eng. Ency. Law (2d ed.) 305; 2 Ency. Law and Pr. 1039; 31 Cyc. 1335, 1402.

There is however not wanting authority for the doctrine that such contracts are in and of themselves invalid as against public policy, where the limitation is greatly disproportionate to the value. Southern Express Co. v. Owens (1906), 146 Ala. 412, 41 South. 752, 119 Am. St. 41, note, 8 L. R. A. (N. S.) 369, 9 Ann. Cas. 1143; Southern Express Co. v. Gibbs (1908), 155 Ala. 303, 46 South. 465, 130 Am. St. 24, 18 L. R. A. (N. S.) 874, note; Hughes v. Pennsylvania R. Co. (1902), 202 Pa. St. 222, 51 Atl. 990, 97 Am. St. 713, 63 L. R. A. 513, note. These cases, however, seem to be based either on a statute, or a declared public policy to prohibit such contracts; while the decisions of the Federal courts under the Interstate Commerce Act uphold them. Our own statute is an adoption of the Interstate Commerce Act, presumptively with the construction put on it, and it would seem wise to have a uniform rule, at least until the State shall declare a different public policy.

4.

3.

It is urged that if there was error in this ruling, it was harmless for the reason that the court instructed that if the jury found from the evidence “that the shipment of the mare * * * was made under the terms ¿ a written contract fairly entered into, based on a reduction in the freight rates for transportation * * * then I instruct you that plaintiff is not entitled to recover”, followed by a finding by the jury that appellee did not execute, or authorize Ross to execute the contract set up by appellant. Two elements enter into the consideration of the question: (1) the fact of execution itself, and (2) whether it was fairly entered into, based upon a reduction of the rate. The question of the execution of the contract was a proper subject of reply and inquiry, and overruling the demurrer thereto was not error. The second proposition entering into the question of execution, neeessarily presents the question whether the rate as fixed, and filed, is in itself reasonable, and based upon a sufficient consideration, and as being fairly entered into, and by the analogy between the Interstate Commerce Act and our own, that question seems to be settled, as amounting to the common law being modified by the statute, as to the reasonableness of the rate being a subject of inquiry on the trial. Chicago, etc., R. Co. v. Cramer, supra; Interstate Commerce Com. v. Cincinnati, etc., R. Co. (1897), 167 U. S. 479, 17 Sup. Ct. 896, 42 L. Ed. 243; Priddy v. Wabash R. Co., supra; Western Union Tel. Co. v. Call Publishing Co. (1901), 181 U. S. 92, 21 Sup. Ct. 561, 45 L. Ed. 765; Tift v. Southern R. Co. (1903), 123 Fed. 789; Judson, Interstate Commerce §163. Uniformity and equality seem to be the basic principles underlying each act, and to apply here, unless interdicted by the act of 1905. If the rates and schedules of valuation are filed with the commission, it must be held in the absence of fraud, that the rate is reasonable, the limitation permissible, and the contract in that respect fairly entered into, upon a proper consideration. Uniformity and equality can not be obtained in any other way.

4.

5.

As to the question of the execution of the contract, the’ instruction could only be justified upon the theory that appellee must either have executed it himself, or known of, or specifically authorized its execution, and the jury was so instructed by instruction No. 4, and under such circumstances, the jury was clearly misinstructed, and could not well have answered otherwise than it did. The court was also requested to instruct by appellant’s instruction No. 4, that i.f appellee left the mare with Ross to be shipped, or if he left her with some other person to be shipped, that Ross in the one case, or the other person in the other ease, was authorized to execute the contract, and that it is binding upon appellee. ¥e see no escape from the proposition that this was error both ways, unless appellee was denied the right to ship without limitation of liability or the act of 1905 is valid and controls. Appellee asserts a denial of the right of shipping under the common-law liability, based upon a clause in the schedule of classification and rates, reading as follows:

“Agents will be careful to explain the following requirements to shippers, viz., race horses, stallions, and other high priced animals, when consignors are unwilling to have the same transported at the above list of values, (referring to limited valuation) will be taken only by special arrangement, at one and one-half first class rates, calculated at the estimated weight named below, (the shipping weight) but agents must not accept for shipment such valuable animals without first communicating with the general, or division freight agent. ’ ’

Immediately following the schedule of values and rates is this clause:

“Animals of greater value than given above will be subject to a corresponding advance in weights furnished in the above tables.”

The official classification and tariff rates set out in the schedule, include horses, mules, stallions, jacks, and race horses, with the rate fixed, based upon values and rates, and number of animals in each ear up to $5,000 in value for each animal, at one and one-half times the limited liability rate, when shipment is requested or made without limitation of liability. This case does not fall within the rule declared in Cleveland, etc., R. Co. v. Hollowell, supra, nor is it affected by any constitutional provision or statute, which prohibits contracts of the character of the one before us, so that the construction of the clause relied on by appellee is immaterial, for the reason that shipment was not denied or restricted. There was no delay or refusal to ship, except by special agreement, or to accept for shipment without communicating with the general or division freight agent, or any unwillingness on the part of the shipper to ship under the uniform bill of lading, or request to ship without limitation. The agent testified that the shipment would have been made without limitation if requested, and that no questions were asked about it, and in this he is corroborated by Ross.who testified that he was a common shipper, ¿nd that he was acquainted with the terms and conditions of the uniform stock contract with limited liability. The agent also testified that he had no authority to act except under the official classification, or to make any change in the form of the uniform stock contract, but that if shipment without limitation had been requested he was provided with blanks, and with a stamp to be impressed on the form, showing shipment without limitation of liability, and the schedule itself provides what shall be endorsed, and that impress fixes the liability as that of the common law. The agent also testified that he knew that the horses were race horses, but had no notice or knowledge of their value, or to whom they belonged, though he thought one of them belonged to appellee, but which one he did not know. Under these circumstances the clause relied on by appellee is immaterial, for the reason that none of its terms are brought into application to the shipment. The provisions of the schedule in the particulars here urged, could only apply where the shipper is unwilling to ship under the limited liability contract, and his request for unlimited liability shipment, could not or would not be complied with, or would be unavailing, which is not the case here presented. It is manifest that the general or division freight agent, when the rate has been fixed by schedule, as here, can not change or make another classification or rate, and can not deny shipment under the common law. Assuming that the inhibition against unreasonable rates is but an adoption of the principles of the common law by Congress, and the State legislature (Tift v. Southern R. Co., supra; Murray v. Chicago, etc., R. Co. [1894], 62 Fed. 24; Western Union Tel. Co. v. Call Publishing Co., supra) this clause can have no application to the question of rates, for they are fixed, and could have no force, so far as the rate is concerned, and as certainly could not warrant a violation of the adopted rate applicable to the carriage, whether a common-law, or a limited liability carriage. Except for the statute, subd. d, §5541 Burns 1908, Acts 1907 p. 454, §10, no receipt or bill of lading need issue on a common-law carriage within the State. 1 Hutchinson, Carriers (3d ed.) §152.

6.

The rigor of the liability of the common law may be modified by just, fair and reasonable agreement, except for negligence, and while shipment must be made without such agreement, if the shipper so demands, and according to the schedule, in case a shipper declines to ship under the classified, uniform livestock contract, with limited .liability, if no joint rate has been established, and the local rates applying to the shipment were not at hand, a through shipment could not be required until the one or the other had been obtained. Southern R. Co. v. Reid (1912), 222 U. S. 424, 32 Sup. Ct. 140, 56 L. Ed. 257; Caw v. Texas, etc., R. Co. (1904), 194 U. S. 427, 24 Sup. Ct. 663, 48 L. Ed. 1053; Adams Express Co. v. Croninger (1913), 226 U. S. 491, 33 Sup. Ct. 148, 57 L. Ed. 314, 44 L. R. A. (N. S.) 257; Arthur v. Texas, etc., R. Co., supra; Kansas City, etc., R. Co. v. Carl, supra; Missouri, etc., R. Co. v. Harriman Bros., supra. If however carriage is undertaken without the through or local rate having been established, the liability of the primary carrier is the same, even though the shipment is routed by the shipper, beyond the carrier’s own line. Norfolk, etc., R. Co. v. Dixie Tobacco Co. (1913), 228 U. S. 593, 33 Sup. Ct. 609, 57 L. Ed. 980. The whole scope and tenor of both the Interstate Commerce Act and the State act is to adopt the rate filed with the commission as reasonable, and it was so held in both Federal and State courts when this act was enacted in Indiana. Tift v. Southern R. Co., supra; Young v. Kansas City, etc., R. Co. (1899), 33 Mo. App. 509; McGrew v. Missouri Pac. R. Co. (1893), 114 Mo. 210, 21 S. W. 463; Windsor Coal Co. v. Chicago, etc., R. Co. (1892), 52 Fed. 716; Chicago, etc., R. Co. v. People (1875), 77 Ill. 443; Interstate Commerce Com. v. Cincinnati, etc., R. Co., supra; Sorrell v. Central R. Co. (1885), 75 Ga. 509; Burlington, etc., R. Co. v. Dey (1891), 82 Iowa 312, 48 N. W. 88, 12 L. R. A. 436, 31 Am. St. 477. But if a common-law shipment is requested it must he complied with, and the question is not material in this case, unless it can be said that the demand to ship without limitation would have been unavailing, and the evidence does not disclose such fact.

Appellant attacks the act of February 27, 1905 (Acts 1905 p, 58, §§3918-3920 Burns 1914), on the ground that these sections are in violation of §22, Art. 4, of the State Constitution, as being a special law, prohibited as to “regulating the practice in courts of justice”. In view of our conclusions, it is unnecessary to pass on that question, for if appellant is not affected by it, it is in no situation to present a question which might affect others. Gordon v. Corning (1910), 174 Ind. 337, 92 N. E. 59; Cummins v. Pence (1910), 174 Ind. 115, 91 N. E. 529; Hammer v. State (1909), 173 Ind. 199, 89 N. E. 850, 24 L. R. A. (N. S.) 795, 140 Am. St. 248, 21 Ann. Cas. 1034; Knight & Jillson Co. v. Miller (1909), 172 Ind. 27, 87 N. E. 823, 18 Ann. Cas. 1146.

It is to be observed that the practice act of 1905 (Acts 1905 p. 58, §§3918, 3919 Burns 1908) was approved February 27, and the Railroad Commission Act (Acts 1905 p. 83, §5531 et seq. Burns 1908) was approved February 28, though both went into effect April 15, 1905, but the latter act had a clause repealing all laws, and parts of laws in conflict with it. The presumption against implied repeal of statutes enacted at the same session, or close together, is strong, and they should be so construed as to give effect to both if possible, or at least to any portions which may be reconciled (Cummins v. Pence, supra), but laws are also presumed to be passed with deliberation, and with knowledge of existing laws on the same subject, and when there is, as here, an express repeal of all laws in conflict, the intention is obvious, that the purpose was to sweep away all existing acts on the same subject. It is clear therefore, that the legislature in adopting the Federal act, did so with the construction then put upon it, that the rate filed with the commission and published, is conclusively, certainly prima facie, a reasonable rate, unless, and until changed upon application to the commission, and a sufficient consideration, whether under a common-law, or limited liability carriage and this being so, the provisions (§3919, supra) of the act of February 27, 1905, for a trial of those questions, is in irreconcilable conflict with the act of February 28, 1905, as a modification of the former, and of the common law, and both can not be applied at the same time, concerning the same questions (State, ex rel. v. Board, etc. [1908], 170 Ind. 595, 621, 85 N. E. 513), in addition to the fact, that if the rate is only prima facie reasonable and as furnishing a sufficient consideration, it would have to be attacked in like manner with any other contract, but even that was not done in this case, though we do not mean to express an opinion that it may be done. It is so manifest that §3918, supra, would not have been enacted without §3919, supra, that both must be regarded as repealed. If §3918, supra, stood alone, we would be called upon to determine the constitutionality of that provision.

At common law the burden of showing the rate claimed as reasonable is on the carrier. Does the act of February 27, 1905, do any more than declare the common-law rule? If it stood alone and unaffected by the later act, we should have little difficulty with it on that question, but we are confronted with the act passed the next day with an express repealing clause of all laws and parts of laws in conflict with it (Acts 1905 p. 83, supra), and by §5 it is expressly provided that the rates filed and published “shall be held, deemed and accepted to be reasonable, fair and just, and in such respects shall not be controverted” in actions, except in direct actions to modify the same under other sections, and by §7 the burden is expressly laid on the complaining party to show that the classification, rates, etc., are unreasonable and unjust. These provisions are in direct conflict with the common-law rule, and with the act of February 27. As at common law there may be some limitation by contract, so there may be under the unlimited liability rule. The act of February 28, goes farther than the Interstate Commerce Act, and makes the rate prima facie reasonable, just and on a sufficient consideration, precisely as the Supreme Court of the United States has construed the Interstate Commerce Act to mean. It is therefore evident that the two acts could not operate at the same time as to the same subject-matter. Except for the act of February 28, we might be justified in construing the act of February 27, as only'declarative of the common law as applied to intrastate commerce, a matter of State control, as to burden of proof as to reasonablesness of rates and consideration, and on the same analogy escape the claim of uneonstitutionality of that act, as applied to intrastate commerce, but what could the legislature have meant in passing the act of February 28, wherein it expressly made the rate as filed, prima facie reasonable, and on a sufficient consideration, provided how and how only it can be changed, and put the burden on him who claims it unreasonable ? If the act of February 27, could be separated so as to remain a complete and enforceable act by eliminating all that portion of §3918, supra, after the clause providing that a special contract shall be pleaded and shall not be admissible under the general denial, we might hold so much of it as valid except-for the other question of its constitutionality under §22 of Art. 4, but it is apparent that no such construction can be put on it for the reason that the pith of the section is in the provisions of the next clause, declaring what the answer shall be, and can not be disconnected from the former portion of the section, and is in manifest and direct conflict with the express provisions of the act of February 28, on the specific points. Suppose a shipment under either an unlimited liability, or limited liability rate, and contract with special permissible limitations as at common law, then eliminating the latter clause of §3919, supra, if the special contract is pleaded to a complaint under §3918, supra, it would be a defense under well-established rules of law, a result certainly not intended, or if intended, then we are confronted with a charge of unconstitutionality, as being a special law in practice in courts of justice. The fact that at the session of 1907 (Acts 1907 p. 454), very different provisions are made, does not restore §§3918, 3919 Burns 1908, Acts 1905 p. 58. The act of 1907 removes the provisions of §§5, 6 and 7, Acts 1905 p. 83, as to the conclusiveness of rates, the manner of attack on them, and placing the burden of proof on the carrier by §6, when the rate is attacked, but it still remains that the act of February 27, 1905, was repealed, as entirely inconsistent with the act of February 28, 1905. Detroit, etc., R. Co. v. Barnes Paper Co. (1912), 172 Mich. 586, 138 N. W. 211; Ex parte Sohncke (1905), 148 Cal. 262, 82 Pac. 956, 2 L. R. A. (N. S.) 813, 113 Am. St. 236, 7 Ann. Cas. 475; State, ex rel. v. Board, etc., supra.

It appears from the evidence, that there was no inquiry for, or denial of a common-law carriage, and that a demand for it would have been complied with, and that the application for shipment was made on Sunday, and the actual delivery for carriage was not made until 7 p. m. Monday, so that we are unable to concede appellee’s contention that such demand would have been unavailing.

An ingenious and forceful argument is made by the learned counsel for appellee, while not attacking the validity of the Railroad Commission Act, to the point, that the common-law right of shipment at a reasonable rate without limitation of liability can not be taken away, or the court divested of the power, or relieved from the duty of determining what are fair and reasonable rates, by any commission, which shall take the place of courts. While recognizing the force of the argument, we do not perceive that that has been done, or that it has been sought to be done in this case, but as here presented unless the Railroad Commission Act is invalid, the rate must be presumed to be fair, and upon a sufficient consideration, whether a common-law, or limited liability shipment, in addition to the fact that there may be limitations under a common-law carriage, and the further fact that as here presented, it is a voluntary shipment under a special contract, recognized by the Railroad Commission Act, if the latter is valid, and its validity is not assailed. It is insisted by appellee, however, that the Railroad Commission Act of 1905 (Acts 1905 p. 83) evinces a declared public policy of the State to prohibit the making of a contract of the character of the one before us, and that while a compliance with Acts 1905 p. 58, §3919 Burns 1908, was pleaded in the third paragraph of the answer, there was no proof of consideration for the limitation, or reasonableness of the rate, and the limitations. Subdivision d, §5541 Burns 1908, Acts 1907 p. 454 as we understand it, is no more than a declaration of the common law, that there shall be no limitation of liability for negligence, implying, as the schedule and classification of tariffs provide, that there may be limitations of value or other limitations on which rates are based, and as to §3919, supra, the rates and classifications being filed with the commission, they must be taken as both reasonable and based on a sufficient consideration, and if in conflict with §§3918, 3919, supra, as superseding them. It is therefore unnecessary to consider the question of the constitutionality of that act, tested by §22, Art. 4 of the State Constitution, raised by appellant, as to “practice in courts of justice”.

The views expressed by the writer in which Erwin, J., concurs as to the act of February 27, being superseded by the act of February 28, and as to the first, third and fifth paragraphs of answer being good, but provable under the other answers, and that the evidence does not show that demand for an unlimited liability shipment would not have been complied with, are not the views of the majority of the court, which entertains the view that the act of February 27 is still in force, and consequently that none of the answers are good in any event, which views are set out in the concurring opinion, which becomes the prevailing opinion on those questions.

For the error in giving instruction No. 4 and refusing instruction No. 4 requested by appellant as pointed out herein, with respect to the execution of the contract, the judgment must be reversed, with instructions to the court below to sustain appellant’s motion for a new trial, and for further proceedings not inconsistent with this opinion.