concurring.—I concur in the judgment, but I do not agree that the conditions expressed in the bill of lading amount to an agreement as to the value of the packages. I think the implication is exactly the reverse, to wit, that because the’ value is not stated and is therefore unknown, the carrier will not be liable for loss or damage for any sum exceeding fifty dollars. For this reason this case is not within the cases cited upon this subject by Mr. Justice McFarland.
I do not question the proposition that a common carrier is exonerated by such a stipulation, except in the cases mentioned in section 2175 of the Civil Code. Sections 2175 and 2176 must be read together, and, so read, the law is that a carrier may limit his liability for packages, the value of wdiieh is not stated, except when the loss or damage results from the gross negligence, fraud, or willful wrong of himself or his servant; and for loss or damage so caused he cannot thus exonerate himself.
It may be true that to agree upon the value of the goods to be carried is not to limit the liability of the carrier, and, hence, the materiality of the consideration here. I contend, as already stated, that the agreement here not only is not an agreement as to the value, but plainly implies that no such agreement has been made.
The complaint does not show that the loss occurred through the “gross” negligence of the defendant. I do not see how under the code we can say that there is no dfference between “negligence” and “gross negligence.” Had gross negligence been averred, the averment could not have been held immaterial, save upon the theory that proof of such negligence would be matter of rebuttal in evidence and of replication in pleading, and I think such is the case.
The defendant is charged with the violation of its duty as a common carrier. The answer sets up a special contract, limiting *692its liability. I think this plea was necessary, and that the demurrer was improperly sustained. Had the demurrer been overruled, the law would have permitted proof of gross negligence, as though it had been pleaded by a replication, and, in ease such gross negligence had been shown, in my opinion the plaintiff would have been entitled to recover.
Henshaw, J., concurred.