ON MOTION FOR REHEARING.
Jenkins, J.,concurring specially. It appears that J. D. B. DeBów, the plaintiff in this case, delivered to the Western Railway of Alabama, at Montgomery, certain property, the value of which is sued for, and received from that road a through bill of lading for its transportation to the fair grounds at Shreveport, La. The defendant company, by its return bill of lading, consigned the property to DeBow at Montgomery, “D. H. to Meridian a/cLa. *734State Fair.” By the twelfth clause of defendant’s shipping agreement it was provided that “In case said live stock is to be transported over the line or lines of any other railroad company, the party of the first part shall be released from liability of every kind whatsoever after said live stock shall have left its road, it being agreed that it shall not be held or deemed liable for anything occurring beyond its line of road, except that it shall protect, in so far as it legally can, the through published rate of freight. The conditions of this contract, however, shall inure to the benefit of all carriers transporting said live stock, unless otherwise stipulated by them, but in no event shall one carrier be liable for the negligence of another.” There was a clause in this bill of lading limiting the liability of the carrier to an agreed valuation of $10, and it was further stipulated that such agreement was voluntarily entered into by reason of the reduced rate obtained. The injury occurred on the lines of an intermediate connecting carrier, after the property had left the hands of the defendant company on its return shipment to Montgomery.
1. Assuming that the defendant was an initial carrier, I do not agree with its contention that by reason of the quoted clause in the bill of lading, limiting liability to acts of its own negligénce, it was relieved from liability for negligence of its connecting carriers. Prior to the passage' of what is known as the Carmack amendment to the Hepburn interstate-commerce act (34 Stat. 595, 3591, § 7, pars. 11, 12), and the enactment of the Georgia statute relative to intrastate shipments in conformity thereto (Civil Code of 1910, § 2777), it was the rule that a common: carrier was not bound to issue a bill of lading for transportation of freight beyond its own terminus; and if it did so, it might stipulate, as a condition to the undertaking, that its liability should extend only to injuries occurring on its own lines. Central R. Co. v. Avant, 80 Ca. 195 (5 S. E. 78); R. & D. R. Co. v. Shomo, 90 Ga. 496, 500 (16 S. E. 220); Kavanaugh v. Southern Ry. Co., 120 Ga. 62 (2), 65 (47 S. E. 526, 1 Ann. Cas. 705). Whether under the Federal statute a common carrier can now refuse an interstate shipment designated for a point beyond its own lines was left an open question by the Supreme Court of the United States in Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186 (31 Sup. Ct. 164, 55 L. ed. 167, 31 L. R. A. (N. S.) 7); but *735the decision therein rendered distinctly upheld the validity of the provision of the Carmack amendment imposing liability upon the initial carrier for loss occasioned anywhere en route, whether on its own lines or not, where it voluntarily receives such a shipment, and in spite of any agreement or stipulation limiting liability to injuries occurring on its own lines.
2. It also appears to be true that the act of Congress as amended, stipulating that “nothing in this act shall prevent the carriage, storage, or handling of property free or at reduced rates for the United States, State or municipal governments, or for charitable purposes, or to or from fairs and expositions for exhibition thereat,” etc., permits the shipper and the carrier to enter into a special contract governing the terms of such a shipment, and that since such a shipment does not fall within the provisions of the act regulating the publication of rates and schedules (see ruling to that effect by Interstate Commerce Commission, Watkins on Shippers & Carriers (2d ed.) 847), no presumption arises “from the terms of the bill of lading and of the published schedule filed with the interstate-commerce commission” that knowledge was had by the shipper that the rate was based on value.
3. What appears to be the main difficulty involved in this case lies in the question as to whether or not under the facts, the defendant was in fact an initial carrier. Grave doubt upon this question is likewise shared by Wade, C: J. All of the judges agree that if the defendant be not an initial carrier, then there would be nothing in the acts of Congress or in the record which would prevent giving effect to the provision in the defendant’s contract of shipment limiting its liability to acts of its own negligence. In their brief, counsel for the defendant say that “He [the shipper] received from said road [meaning the Western Eailway of Alabama at Montgomery] its bill of lading, which provided for carriage from Montgomery to Shreveport at the full rate, and it was expressly agreed that there would be no charge for the return carriage.” An examination of the bill of lading, however, does not disclose any provision or agreement whatever relative to a return ,shipment.- It is true that the record discloses that the Western Eailway of Alabama, which issued the original outgoing contract of shipment, had in fact previously filed with the interstate-commerce commission a classification sheet showing its tariff rates of *736freight, wherein it was provided that "Shipments intended for fairs or expositions shall pay tariff rates from point of shipment to point of destination, and may be returned' free via the same route,” subject to certain conditions therein named. Since, however, it was not incumbent upon the carrier to thus file with the commission a schedule governing any special rates by which such shipments might thus be returned without additional charge, it does not seem that such a schedule of tariffs, though actually filed, must be taken as if included in the original contract of shipment, and (under the authority of the Hooker case, cited in paragraph 3 of the decision in this case) "binding upon shipper and carrier alike.” Especially would this seem true where the record in no wise disclosed that the shipper had actual knowledge of the offer thus made by the filing of such proposal. If the Western Bailway of Alabama, as the- original outgoing carrier, had actually contracted with the shipper for a return carriage of "the property, it would seem clear to all of us that the defendant company, as its connecting carrier, would have been acting for it in issuing the return shipping receipt in accordance with the original contract had with the railroad company at Montgomery. It appears that the defendant company itself had issued and posted its circular whereby it had agreed that shipments for exhibition at fairs and expositions should be returned over its own lines free of charge. Though it had received its portion of the original freight charge from the other company, it in fact entered into a contract with the shipper himself, whereby it issued its bill of lading for the return carriage of the property consigned to Montgomery “D. H. Meridian a/c La. State Fair.” If the Alabama railway company was not obligated to make such return carriage, the contract thus made must have been on the part of- the defendant and on its own behalf, and under it the defendant became the initial carrier. While the point would seem a close one, I have concurred in the judgment rendered, for the reasons indicated.