Opinion by
Head, J.,In this action the plaintiffs seek to recover from the defendant, a common carrier, the value of a package of jewelry delivered to it in the city of Reading for carriage to them in the city of Philadelphia. In its affidavit of defense the defendant admitted “having received at Reading, Pennsylvania, on January 5, 1903, a package consigned to plaintiffs at Philadelphia, and that said package was lost, stolen or mislaid while in the custody of the defendant.” Had there been nothing else in the case the jury would have been warranted, under all of the authorities, in rendering a verdict for the plaintiffs for the value of the package. This value was testified to by one of the plaintiffs, and as, apparently, there was ho real controversy on this question of fact, his testimony was *472received without objection, the witness dismissed without cross-examination and the plaintiffs rested their case. On the following day it appeared that the testimony of the witness was based on the records of the firm not made by him personally. The court was then asked to strike out his evidence but refused to do so, and this refusal is assigned for error. We think the motion to strike out, under the circumstances, was, at most, but an appeal to the discretion of the trial judge and we are unable to say that discretion was abused. The assignment is dismissed.
The réal defense set up to avoid the liability that, prima facie, would flow from the undisputed facts already adverted to, is disclosed in the following averments contained in the affidavit of defense: “The facts in connection with said shipment are that Mrs. Richmond L. Jones of Reading requested plaintiffs to express to her, on approval, several jeweled rings, with which said request plaintiffs complied. In the package containing said rings was a request signed by plaintiffs to the effect that when Mrs. Jones returned said rings to do so in a plain wrapper and not to disclose the contents or value thereof to the express company. . . . The said Mrs. Jones in returning the said rings refused to inform the defendant’s agent of the contents of the package or the value of the same although thereto requested, and the same was shipped and received as a package of small value and handled accordingly. ... As plaintiffs perpetrated a fraud upon the company, in requesting the consignor to conceal the true contents and value of said package,” the limited liability clause in the contract of shipment should be enforced and the recovery confined to the $50.00 therein mentioned.
We may concede, as an abstract legal proposition, that where a shipper, without any intention to defraud, but through ignorance, carelessness, or other like cause, so prepares his valuable goods for shipment, as to delude even the reasonably careful agents of the carrier into the belief they are not of any especial value, he may not afterwards recover such especial value in case of loss. This is founded in reason and justice because such conduct, on the part of a shipper, even though *473not immoral because not consciously wrong, results in the same injurious consequences to the carrier, as if it had been the offspring of an intention to defraud, “for it goes to deprive the carrier of the compensation he is entitled to, in proportion to the value of the article intrusted to his care and the consequent risk he incurs; and it tends to lessen the vigilance the carrier would otherwise bestow:" Relf v. Rapp, 3 Watts & S. 21.
We are unable, however, to discover, either in the pleadings or evidence, anything that should have demanded, at the hands of the learned trial court, a discussion of this legal principle or warranted its application to the facts of the case. The issue of fact tendered in the affidavit of defense did not assert, even by implication, that the shipper had so carelessly or improperly prepared her package for shipment that the defendant was fairly and reasonably induced to believe that it was of but little value. And had such facts been averred they would have been wholly without support in the evidence because it was not denied that the rings had been returned packed in the same box, wrapped in the same paper in which they had been sent down, and that the package, so prepared, was plainly addressed to the plaintiffs, a long established and well-known firm of jewelers and silversmiths in the city of Philadelphia.
The defense actually set up was that the shipper had perpetrated a willful and intentional fraud on the express company in that she “refused to inform the defendant’s agent of the contents of the package or the value of the same although thereto requested;” and that the plaintiffs should be visited with the consequences of such misconduct by her because she acted under their direction and for their benefit. Upon the issue of fact thus tendered the case went to trial and the parties produced their testimony. It was conflicting. In submitting the question to the jury the learned trial court said, inter alia, “I shall leave the question entirely to you, in this case, to determine whether, under the facts as you have heard them testified to, there was, in what transpired at the time of the actual delivery of this package between Mrs. Jones and Harvey Scott (her servant) and Harvey Scott and the driver (the *474defendant’s agent), or in the manner of wrapping up this particular package, such evidence as satisfies your mind that there was a deliberate and intentional effort upon the part of J. E. Caldwell & Co., the original shippers, or on the part of Mrs. Jones, so far as she represented them in sending this package back, an intention to defraud. That is whether the facts amounted to a fraudulent concealment of things which this company ought to know. If you find that the evidence does satisfy your minds that there was a fraudulent concealment and that the company was thereby defrauded, your verdict should be for the defendant.” That the shipper was not obliged, as a condition precedent to plaintiffs' right to recover, to volunteer - information as to the contents or value of the package, if no inquiry was made, seems to be conceded-as the following quotation from the opinion of Mr. Justice Rogers in Camden & Amboy R. R. Co. v. Baldauf, 16 Pa. 67, printed in appellant’s brief, will show: “It is proper here to remark that neither concealment nor fraud can be imputed to the plaintiff. He was not bound to disclose the nature or character of the goods unless inquired of by the carrier, in which case he must answer truly. ”
Did the shipper then, under direction of the plaintiffs, “refuse to inform the defendant’s agent of the contents of the package or the value of the same although thereto requested?” If she did, manifestly a willful and intentional act of concealment, amounting to a fraud, was practiced on the defendant. Upon its ability to establish its averment of fact just quoted the defendant rested its defense. The evidence was conflicting, and a submission to the jury was necessary. Under the instruction previously quoted and the answers to defendant’s points, the jury were clearly given to understand that if they accepted the defendant’s evidence as to the conduct of the shipper, the plaintiffs’ right to~recover was gone. ■ If on the other hand they accepted the evidence of Mrs. Jones and her servant, then no wrong was done either by the shipper or the plaintiffs, the only defense set up had failed, and the prima facie case of the plaintiffs was in no way overcome.
We think it would be useless to consider separately the *475numerous assignments of error, many of which are in violation of our rules of court. The real question involved in the case is thus stated by the learned counsel for the appellant in the opening sentence of his brief: “ Whether or not one of the large jewelry firms of the United States can defraud an express company of its lawful charges by not declaring the value of a shipment, when asked, or by so disguising the shipment that there is nothing about it to denote its true value.” The jury have answered that there was no refusal to declare value when asked, and the record shows no trace of any attempt to disguise the package or that it was prepared in any other form than that usually assumed by like shipments. In our view the charge of the court truly directed the attention of the jury to the real issue and gave to the defendant the benefit of every legal principle it could fairly invoke in attempting to establish the single defense it set up.
Judgment affirmed.