
    A. G. S. Ry. Co. v. McCleskey.
    
      Damages for Failure to Deliver Goods.
    
    (Decided April 29, 1909.
    49 South. 433.)
    1. Commerce; Intrastate Commerce; Regulation; Contract.— Where the contract of shipment of goods is made within the state and is to be wholly performed within the state, the decisions and opinions of the interstate commerce commissions or the acts of congress upon which they are based have no binding force in determining the effect of state statutes on the contract.
    2. Carriers; Goods; Limiting Liability. — The Commodity Act (General Acts 1907, p. 209, and General Acts 1 S. S., p. 125) does not operate to validate provisions of bills of lading exempting carriers from liability for loss of goods, but the law remains as before the enactment of those statutes.
    Appeal from Bessemer City Court.
    Heard before Hon. William Jackson.
    
      Action by J. M. McCleskey against the Alabama Great Southern Railway Company for loss of goods and damage to goods while being shipped over its lines. Judgment for plaintiff and defendant appeals.
    Affirmed.
    A. G. & E. D. Smith, for appellant.
    .Counsel insist that the act known as the 110 Commodity Act, passed the general assembly in 1907, and the act of the 1st special session, had.the effect to validate bills of lading limiting the liability of the railroad to the amount fixed in the bill of lading, and that if this limitation is valid, it is binding on the plaintiff although he did not. read the bill of lading. — Jones v. G. 8. & M. R. R. Go., 89 Ala. 376. The railroad company must stand on the contract of shipment made for it by law, and not even mistake .on the part of the railroad company can alter this contract. — 119 Ala. 539; 158 U. S. 98.
    Pinkney Scott, for appellee.
    The bill of lading as to the liability clause thereof is not binding, and was not rendered so by the acts of the legislature of 1,907. No excuse was offered for a failure to deliver the goods, and a carrier cannot limit its liability for negligence —A. G. 8. v. Little, 71 Ala. 611; Mouton v. L. & N. R. R. Go., 128 Ala. 537.
   MAYFIELD, J.

This is • an action by a shipper against a common carrier for failure to deliver freight —one trunk .and contents — which was received by the carrier at Valley Head, to be delivered by it at Bessemer, Ala., for a reward. By agreement the case was tried by the court without a jury on an agreed statement of facts, under the general issues, either party to have any advantage to which he might be entitled had such matter been properly and specially pleaded. The agreed statement of facts is as follows: “That the defendant is a common carrier with its lines running from Valley Head, Ala., to Bessemer; that plaintiff on the 3rd day of December, 1907, shipped certain goods from Valley Head to Bessemer, prepaying the amount of $9.60, the-goods being set out on the bill of lading hereto attached, marked ‘Exhibit A,’ and made a part of this agreement; that said goods consisted of household goods and old furniture, and the value was limited to $5 per 100 pounds in case of total loss, as shown on said bill of lading, and that the said goods were packed and each article tagged or marked; that the said $9.60 was the rate provided by the classifications of the defendant, the defendant having provided by its classifications a higher rate for such goods where the value of the saméis not limited to $5 per 100 pounds in case of total loss ;• that defendant’s rates were posted and kept in its depot at Valley Head as provided by law; that plaintiff did not examine the same nor ask to examine the same; that all of said goods were delivered except the trunk and its contents; that the weight of the said trunk and contents was, to wit, 150 pounds, and that the said trunk and contents was a total loss; that the actual value of said trunk and contents was eighty ($80) dollars, including damage to rocking chair, it being claimed by the-plaintiff that he should have and recover in this action $80, and it being claimed by the defendant that the-plaintiff should only have and recover in this action $7.50 or at most $10; that the bill of lading hereto- attached and referred to was the bill of lading under which the said goods were shipped; that, when the plaintiff applied for the shipment of his household goods over the defendant’s line from said Valley Head to Bessemer, agent for the defendant stated only the rate of $9.60 on the shipment, issued to the plaintiff the bill of lading hereto attached, and at the time written as here appears, but did not call plaintiff’s attention to the words, Nal. Rel.,’ ‘$5.00 cwt.,’ but simply-handed the same said bill of lading to the plaintiff after receiving the household goods, and plaintiff having paid the freight as stated to him, and thereafter plaintiff presented the bill of lading for his household goods to the agent of the defendant at Bessemer, and went in the car where he had packed them at Valley Head, and found one rocldng chair broken all up, SO' that the same was a total loss, and the trunk and contents missing from the car, which chair, trunk, and contents were worth $80.” The trial resulted in a judgment for plaintiff for $80, from which the defendant appeals.

But one insistence is urged by the appellant. It insists that this contract of shipment was made under the recent act of the legislature known as the “Commodity Act” (Gen. Acts 1907, p. 209), and under and by the subsequent act passed at the special session relating to the same subject (Gen. Acts Sp. Sess. 1907, p. 125), and that the object as well as the effect of these acts was to validate contracts as to shipments made thereunder, which would not otherwise be valid; that their effect was to fix rates of shipment, and to validate provisions in contracts of shipment limiting and fixing the liability of the carrier in the case of loss. We cannot agree with counsel for appellant that the object or effect of either or both of the statutes was to validate these provisions in contracts of shipment. In other words, the defendant claims that the contract of shipment as shown by the bill of lading was that the shipper paid $9.60 to the carrier to deliver this freight to him at Bessemer; that a part of this contract limited the liability of the carrier in case of loss to $7.50; that this rate was fixed by the statute, and that, therefore, all the other parts of the contract, including that limiting the liability, were thus fixed by statute, or at least that the statute had the effect to validate the contract, when, but for the statute, it would be invalid, and cites some federal decisions and opinions of the Interstate Commerce Commission in support of the proposition.

It is unnecessary for us to discuss these authorities, or the acts of Congress upon which they are based, to compare or to contrast those statutes or contracts of shipment under consideration with our statutes referred to and the contract in this case, for the reason that we would neither be bound thereby, nor be willing to follow them if in point; this shipment being wholly within the state and made within the state.

We are of the opinion, however, that the statutes referred to did not have the effect, as insisted by appellant, to validate the provisions of bills of lading exempting the carrier from liability for loss, except as to the amount stipulated in the bill of lading. The law as to these provisions in contracts of shipment remains now as it was before, and it is conceded by counsel for the appellant that the carrier would be liable under the law as it existed before these statutes were enacted.

There being no error in the record, the judgment is affirmed.

Affirmed.

Dowdell, C. J., and Simpson and Denson, JJ., concur.  