This was an action against the railway company for the recovery of the full value of a barrel of whisky it had failed to deliver to the consignees. The material portions of the contract under which the whisky was shipped appear in the reporter’s statement, which also sets forth the facts necessary to an understanding of this case. The delivery of the whisky by the defendant company at a flag-station, and to a person to whom it was not consigned, was grossly negligent, and this was fully conceded by counsel for the company. Indeed, this wrong delivery, which occasioned to the plaintiffs a total loss of their goods, was neither more nor less than a conversion by the carrier, and makes it liable for the full value of the goods.
We have vei’y carefully examined the special contract *807under which the whisky was shipped. Although it fixes upon the goods a valuation less than their real market value, which stipulation the shipper agreed to in consideration of the rate of freight being reduced, there is nothing in its terms which would relieve the carrier from damages occasioned by its own negligence in making a wrong delivery. Granting that it was competent for this to be done, it is enough to say that in the present case it was not even attempted. Among the numerous stipulations in the contract of shipment, special attention is called to the following: “ Negligence shall not be. presumed as against any carrier under this bill of lading, and no liability shall exist therefor, without actual and affirmative proof thereof.” It will thus be seen that the contracting carrier which issued the bill of lading in behalf of itself and all other carriers which might be concerned in the transportation, contemplated liability from the carrier’s negligence, and only provided that negligence should not be presumed but should be positively proved.
. As will appear from what has been said above, the question as to whether a carrier may lawfully contract against liabilities for injuries or damages caused by its own negligence, is not presented by the facts of the present case. Ve have accordingly refrained from entering unnecessarily upon a discussion of this question. It may be incidentally remarked, however, that in the case of Georgia Railroad & Banking Company v. Reid, 91 Ga. 377, 17 S. E. Nep. 934, cited and relied on by counsel for the plaintiff in error, no such issue was either raised or passed upon, nor was there any negligence on the part of the carrier affirmatively shown. Neither do we now recall any decision by this court rendered in a case where the contract was signed by the shipper, in which the question has been directly made and passed upon. In the cases of Berry et al. v. Cooper et al., ex’rs, 28 Ga. *808543, Purcell v. So. Ex. Co., 34 Ga. 315, and Georgia R. R. Co. v. Gann & Reaves, 68 Ga. 350, it does not appear that any one of the contracts under which the shipments were made was signed by the shipper. In Central R. R. Co. v. Pickett & Blair, 87 Ga., the writer, on page 737, remarked offhand that “No railroad company can lawfully contract against liability for injuries caused by its own negligence,” and added, “ and defendant did not attempt to do so in this case.” So the question was not really involved in that case. Should it hereafter arise, this court will, after full investigation and careful consideration, undertake its definite and authoritative solution. Judgment affirmed.