
    Harold Frank, Plaintiff, v. Michigan Central Railroad Company, Defendant.
    Fourth Department,
    July 7, 1915.
    Carriers —negligence — interstate commerce — contract limiting liability to valuation recited therein — interstate carrier not exempted from liability for negligence.
    Where a shipper of a carload of horses from one State to another chose a low published rate based upon the condition that the carrier assume liability on the horses to the extent only of an agreed valuation, and beyond which valuation neither the carrier nor any connecting carrier should be liable, and the horses, which were invoiced at about half their actual value, were injured in transit through the fault of the carrier, but none of them was worth less after the injury than the value at which it was invoiced, the carrier is not liable for more than such proportion of the actual loss as the declared valuation bears to the actual value.
    The valuation clause in such a contract is not an exemption of an interstate carrier from liability for its own negligence.
    Merrell, J., dissented.
    Submission of a controversy upon an agreed statement of > facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      L. P. Hancock, for the plaintiff.
    
      Lester F. Gilbert, for the defendant.
   Kruse, P. J.:

The plaintiff shipped a carload of twenty-four horses over the defendant’s railroad from Chicago to Buffalo. The horses were injured in transit through the fault of the carrier, and the question is whether the plaintiff is entitled to recover of the defendant any damages, and if so, what amount.

The defendant’s tariffs had been filed with the Interstate Commerce Commission, and posted as required by act of Congress, and the shipping contract under which the animals were transported was in conformity thereto. The plaintiff chose the lower published tariff rate, based upon the condition that the carrier assumed liability on the horses to the extent only of an agreed valuation, upon which valuation as recited in the contract was based the rate charged for the transportation of the animals, and beyond which valuation neither the defendant nor any comiecting carrier should be liable. The valuation of the horses, as stated in the shipping contract, was not to exceed .$100 each, and in no event should the carrier’s liability exceed $1,200 upon any carload.

The plaintiff contends that he is entitled to recover the entire loss, because it is less than the amount limited by the terms of the shipping contract. The defendant contends, First, that it is not liable for any of the loss, because the evidence shows that the horses were worth, after being injured, more than the valuation placed upon each of the horses, and, second, that in any event it is not liable for more than such proportion of the actual loss hs the declared valuation bears to the actual value, - namely, $230.24.

The actual loss sustained by the plaintiff was $888.82, there being a loss upon each of the horses except two, but none of the horses was worth less than $100 after the injury.

I am of the opinion that the plaintiff is entitled to recover, but only the lesser amount. I shall not stop to analyze the .various decisions which have been cited. It is not claimed that any are precisely in point, and I am not aware of any authoritative decision upon the exact question here involved. The reasoning of the cases, I think, sustains the conclusion here reached. As is well stated in Hutchinson on Carriers (3d ed. § 429): “ Where the parties have stipulated that the carrier’s liability in case of loss shall not exceed the sum at which the goods are valued, it is hardly reasonable to suppose that it was thereby intended that the carrier, in the event of only a partial loss, should be liable for an amount which might be equal to the sum fixed as the value of the goods, thus making it possible for the same amount to be recovered where the loss was only partial as would be recoverable where the loss was total.”

The valuation clause in question here is not an exemption of the defendant from liability for its own negligence. Such exemption is not permissible under the Federal rule (Adams Express Co. v. Croninger, 226 U. S. 491), by which this case must be determined, as the shipment was interstate. In the last case cited it was held that the limitation as to value has no tendency to exempt from liability for negligence; that it does not induce want of care, but exacts from the carrier the measure of care due to the value agreed on. The decision of that case was placed upon the distinct ground that such a contract is valid when fairly made, as a basis for a freight rate, and a proper and lawful mode of securing a due proportion between the amount for which the carrier may be responsible and the freight he receives and of protecting himself against extravagant and fanciful valuations.

The horses shipped were invoiced at about half their value. If there had been a total loss, the carrier would have been liable for but half their actual value. I think the rule holds good where there is a partial loss.

Judgment is, therefore, directed in favor of the plaintiff against the defendant for the sum of $280.24, together with interest thereon from the 7th day of August, 1911, the date of delivery of the animals by the defendant carrier to the plaintiff, together with costs.

All concurred, except Merrell, J., who dissented and voted for directing judgment for plaintiff for the amount of actual damages sustained, viz., $888.82.

Judgment directed in favor of the plaintiff upon the submission for the sum of $230.24, with interest thereon from- August 7, 1911, together with costs of the submission.  