BROWN and WALKER, JJ., dissenting. This action was originally brought by the plaintiff against the Seaboard Air Line Railway and the Louisville and Nashville Railroad Company to recover $310 for the death of a mule alleged to have been caused by the negligence of the defendants in the course of transportation from East St. Louis, Ill., to Raleigh, N.C. The mule in question was one of a car-load of twenty-six shipped by the Maxwell-Crouch Mule Company to the plaintiff company on 3 March, 1911. The mules arrived at Raleigh 8 March, 1911. The injury to the mule was apparent when he was unloaded, and he was sent to the stable of a veterinary surgeon by the defendant's agent. A few days after being sent to the stable, the mule died.
At the trial the court instructed the jury that there was no evidence of negligence on the part of the Louisville and Nashville Railroad Company, and the verdict rendered placed the responsibility for the mule's death entirely on the Seaboard Air Line Railway.
The defendant pleaded the provisions of the Act to Regulate Commerce, as amended, as restricting the plaintiff's right to recover more than $100 for the death of this mule, and offered in evidence tariffs and classifications on file with the Interstate Commerce Commission, from which it appeared that the rate charged and the valuation fixed in the contract upon which this shipment moved are in accordance with the published tariff rate. The defendants also pleaded the provisions of the contract of shipment, fixing the value of the mule at $100, as a bar to plaintiff's right to recover more than that amount under the law as declared by the Supreme Court of North Carolina.
The contract recited a rate of $170 per car, and contained this provision: "Should damage occur for which the said carrier may be liable, the value at the place and date of shipment shall govern the settlement, in which the amount claimed shall not exceed . . . for a horse or mule $100 . . . which amounts it is agreed are as much as such animals as are herein agreed to be transported are worth." *Page 179
The defendant also offered evidence tending to prove that the rate on horses and mules from National Stock Yards, Ill., to Raleigh, (219) N.C. via Louisville and Nashville Railroad Company and Seaboard Air Line, is $170 per standard car, plus $1 bed charges and feed charges en route, when regular live-stock contract is executed, which limits liability of carrier not to exceed $100 per animal in case of loss or damage. In case the shipper desires not to accept contract limiting liability, he can increase the valuation of the animals, but for every increase of 100 per cent or fraction thereof in the value of his animals the freight rate is increased 20 per cent more on the car.
The jury returned the following verdict:
1. Was plaintiff's mule injured by the negligence of the defendant Louisville and Nashville Railroad Company, as alleged in the complaint? Answer: No.
2. Was plaintiff's mule injured by the negligence of the defendant Seaboard Air Line Railway, as alleged in the complaint? Answer: Yes.
3. Did the plaintiff comply with the contract of shipment as to the giving of notice to the railroad company (Seaboard) as to his claim for damages? Answer: Yes.
4. What damages, if any, is plaintiff entitled to recover? Answer: $285.
His Honor, being of opinion that the clause in the bill of lading limiting the value to $100 did not prevent the recovery of the damages sustained by negligence, and that to permit such a recovery did not interfere with the Act to Regulate Interstate Commerce, rendered judgment in favor of the plaintiff for $285 and costs, and the defendant excepted and appealed. The execution of a bill of lading by a railroad company establishes a contractual relationship between it and the shipper, the carrier agreeing, for a consideration, to transport and to deliver, and the shipper agreeing to pay the consideration. This is the contract. 4 Elliott on Railroads, sec. 1415. In addition to the obligations contained in the contract, the law imposes upon the company other obligations and duties, and justifies its right to do so because the (220) company is a creation of the law, enjoys a virtual monopoly of the carriage of freight within a certain distance, and exercises the right of eminent domain, which can only be conferred in consideration of public service. Branch v. R. R., 77 N.C. 349. *Page 180
"He (the common carrier) exercises a public employment, and has duties to the public to perform." York Co. v. R. R., 70 U.S. 112.
"Property does become clothed with a public interest when used in a manner to make it of public consequence and affect the public at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created." Munn v. Illinois, 94 U.S.
"Railroads are common carriers, and owe duties to the public." Joy v. R.R., 138 U.S. 51.
These duties of the common carrier, as such, do not rest upon contract, but are imposed by law (Elliott on Railroads, vol. 4, sec. 1454), and exist independently of contract, having their foundation in the policy of the law. Merritt v. Earle, 29 N.Y. 122.
Among these duties imposed by law, independent of contract, are to carry safely and to deliver within a reasonable time, and a breach thereof is a tort. Peanut Co. v. R. R., 155 N.C. 150, and at p. 164.
In Robinson v. Threadgill, 35 N.C. 41, and in Bond v. Hilton,44 N.C. 308, Nash, C. J., says: "Where the law, from a given statement of facts, raises an obligation to do a particular act, and there is a breach of that obligation, and a consequential damage, an action on the case founded on the tort is proper," and in Williamson v. Dickens, 27 N.C. 265, although the plaintiff could have sued in contract, he was allowed to sue in tort, and thereby avoid the defense of a discharge in bankruptcy.
These cases are approved in Solomon v. Bates, 118 N.C. 315, and the principle was approved by the Supreme Court of the United (221) States in Guardian Co. v. Fisher, 200 U.S. 57, where the Court says: "Doubtless in the same transaction there may be negligence and breach of contract. If a railroad company contract to carry a passenger, there is an implied obligation that he will be carried with reasonable care for his safety. A failure to exercise such care, resulting in injury to the passenger, gives rise to an action ex contractu for breach of the contract, or as well to an action for the damages on account of the negligence — an action surrounding in tort."
These authorities and many others not only hold that an action in tort may be maintained for breach of duty, resulting in damage, although the duty is imposed because of the relationship created by contract, but they go further, and classify the action as one to recover damages for negligence.
"In every case involving negligence there are necessarily three elements essential to its existence: (1) The existence of a duty on the part *Page 181 of defendant to protect plaintiff from the injury; (2) failure of defendant to perform that duty; and (3) injury to plaintiff from such failure of defendant." 29 Cyc., 419.
If these views are sound, we come to the consideration of the question of the right of the common carrier to limit its liability by contract.
Prior to 1776, the common carrier was an insurer, and liable for losses occasioned by all causes except the act of God and the King's enemies, and without power to limit its responsibility (Fish v. Chapman, 2 Ga. 349,46 A.D. 393); but this rule has been modified to the extent that the extraordinary liability as an insurer may be limited. 5 Eng. Rul. Cases, 346, note.
The courts have not, however, gone further and permitted the carrier to absolve itself from the consequences of its own negligence. Moulton v. R.R., 31 Minn. 85; R. R. v. Wynne, 88 Tenn. 320; Hudson v. R. R., 92 Iowa 231;R. R. v. Hall, 124 Ga. 322; Express Co. v. Blackman, 28 Ohio St. 156;R. R. v. Lockwood, 84 U.S. 357; R. R. v. Solan, 169 U.S. 135;Calderon v. Steamship Co., 170 U.S. 272.
The consensus of opinion on this question is stated in Cyc., vol. 6, 385 and 388, as follows: "While considerations of public policy have been potent in determining the courts to recognize a rule of liability in the case of common carriers much stricter than that recognized as applying in the case of ordinary bailees, the courts have not (222) thought it necessary to deny the parties to a contract of carriage the right to exonerate the carrier from his extraordinary liability, and the general proposition has been almost universally recognized that by special agreement, or by notice to the shipper, acquiesced in by him, the common carrier may limit his liability to that of a private carrier. It is, therefore, stated as a general proposition in many cases that the common carrier may by contract limit his liability, except for damages or loss resulting from the negligence of the carrier or his agents or servants"; and on page 388: "The proposition amplified in the last subdivision, that a common carrier may by contract reduce his liability to that of a bailee for hire, is not to be extended so as to authorize him as such bailee for hire to exempt himself from liability for negligence. Whatever may be the rule as to ordinary bailees, it is well settled that it is contrary to public policy to allow a common carrier to relieve himself in any capacity from liability for negligence or misconduct. A different conclusion has been reached by the New York courts, and it has been held in a line of cases which are out of harmony with the great current of authority, that inasmuch as the shipper has a right to insist on the common-law liability of the carrier if he sees fit, a contract exempting the carrier from liability for his own negligence will be sustained. Outside of New York the current of authorities is almost unbroken *Page 182 that for reasons of public policy carriers cannot exempt themselves by any contract, notice, or stipulation from liability for the consequences of their own negligence." The author, Judge McClain, of the Supreme Court of Iowa, comments on the New York cases in the note, and says: "Even the courts of New York regard the rule as so anomalous that they qualify it by the further rule, that a general contract of exemption from loss, even from loss of a particular description, will not be interpreted as an exemption from loss due to the carrier's own negligence, unless it is expressly so stipulated. Wilson v. R. R., 97 N.Y. 87; Holsapple v. R. R., 86 N.Y. 275."
(223) It is the settled policy of this State that the common carrier cannot, by contract, exempt itself from liability, partial or total, caused by negligence. Phifer v. R. R., 89 N.C. 316; Capehart v. R. R.,81 N.C. 438; Mitchell v. R. R., 124 N.C. 238; Parker v. R. R.,133 N.C. 335; McConnell v. R. R., 144 N.C. 90.
In the Phifer case, supra, this Court said: "It is well settled that no conditions in a common carrier's bill of lading can be allowed to exempt it from liability for losses occasioned by the negligence or mismanagement of its own servants and employees; for protection against such liability is a duty inseparable from their occupation as public agencies. This responsibility cannot be avoided, and a stipulation to this effect will not be enforced against such as may require their services, even when by reference inserted in the contract of transportation, the parties to it in this respect not standing upon equal footing.
"Amidst varying adjudications upon the extent to which common carriers may limit their liabilities by special agreement, we are disposed to accept the guidance of those made in the Supreme Court of the United States, not only because of the great learning and ability of the judges who constitute it, but that there ought to be uniformity in the law and its administration in all the States, and interstate and local commerce ought to be settled upon a permanent and well understood basis. We shall, therefore, seek instruction from that source to aid in arriving at a satisfactory conclusion as to the question now before us. Mr. Justice Field remarks, in reference to such special limitations: `Where such stipulation is made, and it does not cover losses from negligence or misconduct, we can perceive no just reason for refusing its recognition and enforcement.' York Co. v. R.R., 3 Wall., 113. So in R. R. v. Mfg. Co., 16 Wall., 328, Mr. Justice Day says: `Whether a carrier, when charged upon his common-law responsibility, can discharge himself from it by special contract, is not an open question since Navigation Co. v. Bank, 6 How., 344, and York Co. v. R. R., 3 Wall., 113. In both these cases the right of the carrier to restrict or diminish his general liability by special contract, which does not cover losses by *Page 183 negligence or misconduct, received the sanction of this Court.' After (224) a full and elaborate examination of the authorities, Mr. JusticeBradley announces the result in these words: `(1) A common carrier cannot lawfully stipulate for exemption from responsibility where such exemption is not just and reasonable in the eyes of the law. (2) It is not just and reasonable in the eyes of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his agents.' " And in the McConnell case: "The defendant could not, by any stipulation in the bill of lading, contract to limit its liability for negligence in transporting goods which it receives for carriage."
It is upon these principles that we have held that the valuation clause in a bill of lading is inoperative when relied on to exempt from liability for negligence, and cannot diminish the recovery of damages caused by such negligence. Gardner v. R. R., 127 N.C. 293; Everett v. R. R., 138 N.C. 71;Stringfield v. R. R., 152 N.C. 128; Kissenger v. R. R., 152 N.C. 247;Harden v. R. R., 157 N.C. 238.
It has heretofore been recognized that Jones v. R. R., 148 N.C. 449, andWinslow v. R. R., 151 N.C. 250, are not in harmony with the authorities in this State and elsewhere, and they are now overruled.
We are not inadvertent to Hart v. R. R., 112 U.S. 331, declaring a different rule as to valuation clauses in bills of lading, which has been followed in some States and denied in others; but this authority, while entitled to the greatest respect on account of the high source from which it emanates, is not controlling, as it has been held in the Federal jurisdictions that no Federal question is raised upon the facts presented by this record.
In Latta v. R. R., 172 F. 850, the plaintiff brought suit in a State court of Nebraska to recover damages to a mare and colt, caused by the negligence of the defendant in transporting from one State to another. The case was removed to the Circuit Court of the United States for the District of Nebraska, and there tried, and upon the trial the defendant relied upon the valuation clause in a bill of lading, limiting the recovery to $220. The Circuit Court sustained the contention of (225) the defendant, but on appeal the Circuit Court of Appeals reversed this holding upon the ground that the Supreme Court of Nebraska had decided that the valuation clause was void under the Constitution of Nebraska, providing that "The liability of railroad corporations as common carriers shall never be limited," and that the Federal court was bound by this construction.
In Hughes v. R. R., 191 N. S., the plaintiff brought suit in the courts of Pennsylvania for negligent injury to a horse, shipped from Albany, N.Y., to Cynwyd, Pa., under a bill of lading containing a valuation *Page 184 clause. A recovery was had in excess of the value in the bill of lading, and upon appeal the judgment rendered was affirmed by the Supreme Court of Pennsylvania. The case was then carried to the Supreme Court of the United States, by writ of error, and that Court affirmed the judgment of the courts of Pennsylvania, saying in the course of the opinion: "The first error assigned in the common pleas court raised the question as to the law of the contract. It does not assert that any Federal right was invaded or denied. It seems to have been conceded at the trial that the law of the State of New York, where the contract was made, permitted the making of a contract limiting the liability of the carrier to the agreed valuation in consideration of the lower freight rate for carriage, the shipper having the opportunity to have the larger liability for the value of the goods if the higher rate of freight for carriage was paid. This rule also prevails in the courts of the United States (Hart v. R. R., 112 U.S. 331), wherein it was held that a contract fairly made and signed by the shipper, agreeing on a valuation of the property carried, with a rate of freight based on such valuation, on the condition that the carrier assume liability only to the extent of such agreed valuation in case of loss by the negligence of the carrier, will be upheld as a proper and lawful mode of securing a due proportion between the amount for which the carrier is responsible and the freight received, and of protecting the carrier against extravagant valuations. But this is not a question of Federal law wherein the decision of (226) the highest Federal tribunal is of conclusive authority. In Grogan v. Express Co., 114 Pa., 523, 60 Am. Rep., 360, the Supreme Court of Pennsyvania [Pennsylvania] expressly declined to follow the rule laid down in Hart v. R. R., adhering to its own declared doctrine denying the right of a common carrier to thus limit its liability for injuries resulting from negligence. The cases are numerous and conflicting, different rules prevailing in different States. The Federal courts in cases of which they have jurisdiction will doubtless continue to follow the rule of the Hart case, but the highest court of Pennsylvania may administer the common law according to its understanding and interpretation of it, being only amenable to review in the Federal Supreme Court where some right, title, immunity, or privilege, the creation of the Federal power, has been asserted and denied."
In the case before us the action is based on the common law, as in theHughes case, and we have held that the valuation clause cannot have the effect of diminishing the recovery for damages caused by negligence, following a long line of decisions in this Court, and the same course was followed in the Pennsylvania case; and it would seem that if no *Page 185 Federal question could be found in the Hughes case, none can be found in this, in so far as the determination of the effect of the valuation clause in the bill of lading is concerned.
The defendant contends further, that if it is held that the plaintiff is entitled to recover $285, when the rate of freight was fixed upon the valuation of $100, that this would be a discrimination in favor of the plaintiff and an interference with the Interstate Commerce Act, and further, that Congress having legislated upon the subject-matter of this action, the courts of this State are without jurisdiction.
The principle involved is important, and has not been heretofore decided in this Court, although considered in the Kissenger case, where there is a clear intimation against the contention of the defendant.
We do not question the power of Congress to regulate interstate commerce, nor do we doubt the correctness of the decisions, chiefly relied on, that where Congress, acting within the power conferred by the Constitution, has legislated with reference to the matter involved (227) in the litigation, the legislation of Congress is exclusive, and the courts of the State are without jurisdiction. R. R. v. Oil Co.,204 U.S. 426; R. R. v. Mugg, 202 U.S. 543; R. R. v. Coal Co.,215 U.S. 481; Robinson v. R. R., 222 U.S. 506; R. R. v. Reid,222 U.S. 424.
These cases, however, go no further. In the Oil Co. case the shipper sought to recover freights which he alleged to be unreasonable, but which were such as had been established and approved under the Interstate Commerce Law; in the Mugg case the shipper sued to recover the difference between a rate quoted to him by the carrier and the regular classified rate filed and approved by the Commission, which he had paid; in the Pitcairncase, to compel by mandamus the discontinuance of certain regulations adopted by certain railroad companies for the distribution of cars to coal mines in a time of car shortage, which regulations were alleged to be in violation of the Interstate Commerce Act; in the Robinson case, a schedule of charges for loading coal into cars was filed and approved by the Commission, under which 50 cents more per ton was charged for loading from a wagon than from a tipple. The plaintiff's shipment came under the higher rate, and conceiving that the schedule unjustly discriminated between shipments loaded from wagons and those loaded from tipples, he brought action to recover the excess.
We have stated the subject-matter of these cases for the purpose of showing that in each case a clause of the Interstate Commerce Act, or a rule or regulation of the Commission, was directly involved, and we, therefore, conclude that they are not decisive of the question before us.
We will hereafter refer to the Reid case.
We come then to the contention of the defendant, that to permit a recovery of more than $100, when the freight rate was fixed on the basis *Page 186 of that value, would be a discrimination, and that, therefore, the Interstate Commerce Act abrogates the common-law right of action to recover damages.
If we turn to the act itself, no language can be found which (228) in express terms purports to have this effect, and the defendant must rely upon an abrogation of the right of action by implication.
This being true, the Supreme Court of the United States has laid down the rules by which the contention of the defendant is to be tested.
In the Oil Co. case, after recognizing the right at common law to recover freight charges in excess of a reasonable rate, and holding that the Commission having approved the rate, the courts could not, in the first instance, inquire into its reasonableness, the Court says: "As the right to recover, which the court below sustained, was clearly within the principles just stated, and as it is conceded that the act to regulate commerce did not, in so many words, abrogate such right, it follows that the contention that the right was taken away by the act to regulate commerce rests upon the proposition that such result was accomplished by implication. In testing the correctness of this proposition, we concede that we must be guided by the principle that repeals by implication are not favored, and, indeed, that a statute will not be construed as taking away a common-law right existing at the date of its enactment, unless that result is imperatively required; that is to say, unless it be found that the preexisting right is so repugnant to the statute that the survival of such right would in effect deprive the subsequent statute of its efficacy; in other words, render its provisions nugatory."
Again, it has been held in numerous cases, that the fact that Congress has created the Interstate Commerce Commission, and given to it a large measure of control over interstate commerce, does not deprive the State of the right to enforce laws which may incidentally affect commerce, in the absence of action by Congress or the Commission as to the particular matter to be inquired of. A number of instances of such laws are collected in R. R. v. Illinois, 177 U.S. 514, and the Court there says: "Few classes of cases have become more common in recent years than those wherein the police power of the State over the vehicles of interstate commerce has been drawn into question. That such (229) power exists and will be enforced, notwithstanding the constitutional authority of Congress to regulate such commerce, is evident from the large number of cases in which we have sustained the validity of local laws designed to secure the safety and comfort of passengers, employees, persons crossing railroad tracks, and adjacent property-owners, as well as other regulations intended for the public good. We have recently applied this doctrine to State laws requiring locomotive *Page 187 engineers to be examined and licensed by the State authorities (Smithv. Alabama, 124 U.S. 465; 1 Interest. Com., 804); requiring such engineers to be examined from time to time with the respect to their ability to distinguish colors (R. R. v. Alabama, 128 U.S. 96; 2 Interest Com., 238); requiring telegraph companies to receive dispatches and to transmit and deliver them with due diligence, as applied to messages from outside the State (Tel. Co. v. James, 162 U.S. 650); forbidding the running of freight trains on Sunday (Hennington v. Georgia, 163 U.S. 299); requiring railway companies to fix their rates annually for the transportation of passengers and freight, and also requiring them to post a printed copy of such rates at all their stations (R. R. v. Fuller, 17, Wall, 560); forbidding the consolidation of parallel or competing lines of railway (R. R. v. Kentucky, 161 U.S. 667); regulating the heating of passenger cars, and directing guards and guard-posts to be placed on railroad bridges and trestles and the approaches thereto (R. R. v. NewYork, 165 U.S. 628); providing that no contract shall exempt any railroad corporation from the liability of a common carrier or a carrier of passengers, which would have existed if no contract had been made (R. R. v. Solan, 169 U.S. 133), and declaring that when a common carrier accepts for transportation anything directed to a point of destination beyond the terminus of his own line or route, he shall be deemed thereby to assume an obligation for its safe carriage to (230) its point of destination, unless at the time of such acceptance such carrier be released or exempted from such liability by contract in writing, signed by the owner or his agent) R. R. v. Tobacco Co.,169 U.S. 311). In none of these cases was it thought that the regulations were unreasonable, or operated, in any just sense as a restriction upon interstate commerce."
The same rule was applied in R. R. v. Larabee Mills, 211 U.S. 612.
The expressions in R. R. v. Reid, supra, that Congress having taken possession of the field — having taken control — are relied on to sustain the argument that this rule has been extended, and that now the State has no power to enforce any law which may remotely affect interstate commerce; but the language referred to must be read with the context, and when this is done it will be seen that the principle is sustained.
In the Reid case the Court quotes with approval the following from R. R.v. Larabee Mills, supra: "In other words, the mere grant by Congress to the Commission of certain National powers in respect to interstate commerce does not of itself and in the absence of action by the Commission interfere with the authority of the State to make those regulations conducive to the welfare and convenience of its citizens. . . . Until specific action by Congress or the Commission, the control of the State over those incidental matters remains undisturbed," and *Page 188 then says: "The duty which was enforced in the State court was the duty of a railroad company engaged in interstate commerce to afford equal local switching service to its shippers, notwithstanding the cars concerning which the service was claimed were eventually to be engaged in interstate commerce. This duty was declared (p. 624) to be a common-law duty which the State might, "at least, in the absence of Congressional action, compel the carrier to discharge.' The principle of that case, therefore, requires us to find specific action either by Congress in the Interstate Commerce Act or by the Commission covering the (231) matters which the statute of North Carolina attempts to regulate."
The decision in the Reid case was upon the ground that, "By the specific provisions of the act to regulate commerce, as amended, Congress has taken control of rate making and charging for interstate shipments, and in that respect such provisions supersede State statutes on the same subject; and that a statute of North Carolina requiring common carriers to transport freight as soon as received to interstate points under penalties for failure, conflicts with the requirement of section 2 of the Hepburn Act of 29 July, 1906, ch. 3591, 34 Stat., 584, forbidding transportation until rates had been fixed and published, and is therefore unenforcible."
Tested by these rules, the right of action of the plaintiff, as it existed at common law, is unimpaired, unless its recognition by the courts would render the act to regulate commerce nugatory, or unless Congress has acted on the subject-matter of this controversy.
Congress has legislated and the Commission has made rules and regulations to compel the performance of duty, and not for the purpose of excusing negligent conduct. The rates prescribed are to afford transporting property safely, and with reasonable care, and are not based upon the assumption that the carrier will not perform its duty, and neither Congress nor the Commission has provided a remedy for negligence, nor purported to relieve from its consequences.
A jury has found in this action that the property of the plaintiff has been damaged $285 by the negligence of the defendant, and if he cannot recover that sum in this action, he is without remedy. He cannot go to Congress, nor can he go to the Commission; and if the contention of the defendant is sustained, an act of Congress designed to regulate commerce and the rules of a commission created to administer its provisions will have the effect of reducing his claim to $100.
Conceding that the right of action exists at common law, it does not render the act of Congress nugatory to enforce it, and in the absence of action by Congress or the Commission upon the subject-matter of (232) the controversy, there is no implied abrogation of the right. *Page 189
The implication we are asked to infer compels us to write into the act of Congress words that cannot be found there, and words which, if written in the bill of lading itself, would be void, according to our authorities, to wit, "that in consideration of the rate paid the carrier shall not be liable for negligence."
Hughes v. R. R., 191 U.S. 477, seems to be directly in point against both contentions of the defendant. In that case the plaintiff brought his action in the court of Pennsylvania to recover damages for negligent injury to a horse shipped from New York to Pennsylvania, and the defendant relied on the valuation clause in the bill of lading, and also urged that to permit a recovery for a larger amount than that named would be in conflict with the Interstate Commerce Act. The Supreme Court of Pennsylvania held against the defendant on both points, and rendered judgment in favor of the plaintiff for the full amount of his damages, and this judgment was affirmed by the Supreme Court of the United States. In the course of the opinion, the Court says: "Upon the authority of R. R. v. Elliott, 184 U.S. 533, it may be admitted that the question of the decision of the State court being in contravention of the legislation of Congress to regulate interstate commerce was sufficiently made, and the adverse decision to the party claiming the benefit of that act gives rise to the right of review here. In refusing to limit the recovery to the valuation agreed upon, did the State court deny to the company a right or privilege secured by the interstate commerce law? It may be assumed that under the broad power conferred upon Congress over interstate commerce, as defined in repeated decisions of this Court, it would be lawful for that body to make provision as to contracts for interstate carriage, permitting the carrier to limit its liability to a particular sum in consideration of lower freight rates for transportation. But upon examination of the terms of the law relied upon, we fail to find any such provision therein. The sections of the interstate commerce law relied upon by the learned counsel for plaintiff in error (24 Stat. at L., 379-82, ch. 104, U.S. Comp. Stat., 1901, pp. 3154-3159, 25 (233) Stat. At L., 855, ch. 382, U.S. Comp. Stat., 1901, p. 3158) provide for equal facilities to shippers for the interchange of traffic; for nondiscrimination in freight rates; for keeping schedules of rates open to public inspection; for posting the same in public places, with certain particulars as to charges, rules, and regulations; for the publication of joint tariff rates for continuous transportation over one or more lines, to be made public when directed by the Interstate Commerce Commission; against advances in joint tariff rates except after ten days notice to the Commission; against reduction of joint tariff rates except after *Page 190 three days like notice; making it unlawful for any party to a joint tariff to receive or demand a greater or less compensation for the transportation of property between points as to which a joint tariff is made different than is specified in the schedule filed with the Commission; giving remedies for the enforcement of the foregoing provisions and providing penalties for their violation; making it unlawful to prevent continuous carriage, and providing that no break of bulk, stoppage or interruption by the carrier, unless made in good faith and for necessary purpose, without intention to evade the act, shall prevent the carriage of freights from being treated as one continuous carriage from the place of shipment to the place of destination. While under these provisions it may be said that Congress has made it obligatory to provide proper facilities for interstate carriage of freight, and has prevented carriers from obstructing continuous shipments on interstate lines, we look in vain for any regulation of the matter here in controversy. There is no sanction of agreements of this character limiting liability to stipulated valuations, and until Congress shall legislate upon it, is there any valid objection to the State enforcing its own regulations upon the subject, although it may to this extent indirectly affect interstate commerce contracts of carriage? It is well settled that the State may make valid enactments in the exercise of its legislative power to promote the welfare and convenience of its citizens, although in their operation they may have an effect upon interstate traffic."
The Court then considers several cases, and among them R. R. (234) v. Solan, 169 U.S. 133, in which a statute of Iowa was upheld which invalidated a valuation clause in a bill of lading, and concludes as follows: "We can see no difference in the application of the principle based upon the manner in which the State requires this degree of care and responsibility, whether enacted into a statute or resulting from the rules of law enforced in the State courts. The State has a right to promote the welfare and safety of those within its jurisdiction by requiring common carriers to be responsible to the full measure of the loss resulting from their negligence, a contract to the contrary notwithstanding. This requirement in the case just cited is held not to be an unlawful attempt to regulate interstate commerce, in the absence of Congressional action providing a different measure of liability when contracts such as the one now before us are made in relation to interstate carriage. Its pertinence to the case under consideration renders further discussion unnecessary."
This case was approved in Tel. Co. v. Milling Co., 218 U.S. 406, in which, after holding that intercourse between the States by telegraph is *Page 191 interstate commerce, a statute of Michigan was sustained declaring that "telegraph companies shall be liable for any mistakes, errors, or delays in the transmission or delivery, or for the nondelivery of any repeated or nonrepeated message, in damages to the amount which such person or persons may sustain by reason of the mistakes, errors, or delays in the transmission or delivery, due to the negligence of such telegraph company or its agents, to be recovered with the costs of suit by the person or persons sustaining such damage," although on the face of the telegram there was a stipulation that the company should not be liable for the telegram, the Court saying in conclusion: "The telegraph company in the case at bar surely owed the obligation to the milling company to not only transmit the message, but to deliver it. For the failure of the latter it sought to limit its responsibility, to make the measure of its default not the full and natural consequence of the breach of its obligation, but the mere price of the service, relieving itself, to some extent, even from the performance of its duty. A duty, we may (235) say, if performed or omitted, may have consequence beyond the damage in the particular instance. This the statute of the State, expressing the policy of the State, declares shall not be. For the reasons stated we think that this may be done, and that it is not an illegal interference with interstate commerce."
The Supreme Court of South Carolina has recently decided both questions presented by this appeal against the contention of the defendant. Elliottv. R. R., 94 S.C. 129.
There is also authority for the position that the Interstate Commerce Act, as amended in 1906, instead of taking away the right of action of the plaintiff, preserves it.
In Latta v. R. R., 172 F. 850, the plaintiff sued to recover damages for injuries caused by negligence to a mare and colt, shipped from Nebraska to Iowa, under a bill of lading containing a valuation clause, and the action was removed to the Circuit Court of the United States. Upon the trial, the defendant relied on the clause in the bill of lading limiting the amount of recovery, and it was also shown "that the rate of $24.38 charged by the defendant for the transportation of the animals mentioned was its regular tariff based upon the valuation stated in the contract. It was also conceded at the trial that said tariff rate had been filed with the Interstate Commerce Commission, and published as required by law, and that the rules, regulations, and tariffs of the defendant on file with the Interstate Commerce Commission disclosed that the above-named rate applied to the limited liability contract in use by *Page 192 the company for the transportation of live stock." Upon appeal, the Circuit Court of Appeals held that the plaintiff had the right to recover the full amount of his damages, and that the Interstate Commerce Act, instead of taking away this right, preserved it, the Court saying in reference to the last question: "It is claimed, however, that Congress has legislated upon the very subject now under discussion, and that in consequence thereof the law of Nebraska, so far as it is sought to enforce the same against the provisions of a contract in relation to interstate commerce, is inoperative. In this connection our attention is called to Act June 29, 1906, ch. 3591, sec. 7, 34 Stat. 595 (U.S. Comp. St. (236) Supp., 1907, p. 909). In the section referred to is found the following language: "That any common carrier, railroad or transportation company receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass; and no contract, receipt, rule or regulation shall exempt such common carrier, railroad, or transportation company from the liability herein imposed: Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing laws.' It plainly appears from a reading of the above language that Congress has legislated upon the subject of the liability of railroad corporations as common carriers when engaged in interstate commerce. If it were not for the proviso accompanying the language above quoted, we should feel compelled to determine the validity of the contract in question with reference to the law of Congress. We think that the proviso found in the law above quoted was placed therein to cover just such a case as is now presented. Congress, undoubtedly, was aware of the many conflicting decisions by the courts in reference to the question as to how far common carriers could limit their common-law liability by contract, receipt, rule, or regulation. It therefore was aware that the Constitution of Nebraska, as interpreted by her Supreme Court, was in conflict with the rule established by the United States Supreme Court in Hart v. R. R., supra; and was also aware that the Supreme Court of Pennsylvania in Grogan v.Adams Express Co., 114 Pa., 523, 60 Am. 360, refused to follow the rule established by said case of Hart v. R. R., supra, and therefore, in view of these conflicting opinions, very wisely provided that the legislation by Congress should not deprive `any holder of such receipt or bill of lading of any remedy or right of action which he had under existing law.' We are therefore of the opinion that the right which the *Page 193 plaintiff in this case had under the law of Nebraska to sue for the (237) full value of his property was not taken away by the legislation of Congress herein referred to, but was preserved to him, and that he may now enforce that right as he has attempted to do."
We conclude, upon reason and authority:
(1) That under the common law as administered in this State, the valuation clause in a bill of lading does not relieve from the consequences of negligence.
(2) That if the common law was different, the Legislature of the State would have the power to pass an act providing that such a clause should not relieve against negligence.
(3) That the Supreme Court of the United States recognizes and follows the decisions of the courts of the State on this question, in cases originating in the State courts, whether based on the common law or statute, although it would hold otherwise in cases originating in the Federal jurisdiction.
(4) That Congress has not, in the act to regulate commerce, purported to relieve against negligence.
(5) That Congress having failed to act in this particular, this State may administer its own laws and enforce its settled policy.
(6) There being no express language in the act of Congress abrogating the common-law right of action of the plaintiff, if abrogated at all, it must be by implication.
(7) That the abrogation of the right will not be implied, unless to permit it to exist would render the act of Congress nugatory.
(8) That the enforcement of the right of action is not in conflict with the terms or purpose of the act of Congress, and therefore its abrogation will not be implied.
(9) That if Congress has legislated upon the matter in controversy, the right of action of the plaintiff is preserved by the proviso in the act.
We are, therefore, of opinion there is
No error.