ON REHEARING.
Opinion delivered April 8, 1912.
Wood, J.If the appellant accepted the articles to be transported free, as baggage, when it knew or had notice that such articles were freight, it would be liable for their loss as a common carrier of freight; for, under the present statutes requiring railroad companies to provide printed schedules of tariff charges and to keep same posted, etc., and prohibiting discriminations in rates, a railroad company can not accept freight to be carried as baggage, knowing or having notice that same was freight, and escape the liability for its loss. See sections 6802, 6803, 6804 and 6813, Kirby’s Digest. A contract of that kind is void, and the parties to it will be held to the mutual duties and obligations of shipper and carrier imposed by the statutes. The railroad company would be compelled to charge, and the shipper to pay, according to the regular schedule of tariff charges fixed as the law requires. Sections of the Digest supra.
The purpose of our law in requiring the schedule of rates and prohibiting discriminations is to guaranty to all shippers for the same service and under the same conditions the same tariff of charges. As was said by Chief Justice White, in speaking of the Interstate Commerce Act: “The great purpose of the act, whilst seeking to prevent'unjust and unreasonable rates, was to secure equality' of rates as to all, and to destroy favoritism, this last being accomplished by requiring publication of tariffs, and by prohibiting secret departures from such tariffs and prohibiting rebates, preferences and all other forms of undue discrimination.” New York & N. H. Ry. Co. v. Interstate Commerce Com., 200 U. S. 351-391; Armour Packing Co. v. United States, 209 U. S. 56-72; Louisville & N. Ry. Co. v. Mottley, 219 U. S. 467, 476 to 478.
This court, in Myar v. St. Louis S. W. Ry. Co., 71 Ark. 552, held that a station agent of a railway company “could not lawfully discriminate in favor of one shipper by charging him for transportation at lower rate than was allowed to others, and such did not come within the apparent scope of his authority.”
In the recent case of St. Louis, I. M. & S. Ry. Co. v. Wolf, 100 Ark. 22, we held, quoting syllabus: “Where a railway agent, by mistake, inserted in a bill of lading for an interstate shipment 'a rate less than the published rate, the railroad company is not bound thereby, and it is immaterial in such case that the shipper and the agent were both ignorant of the published rate.” See Kansas City S. Ry. Co. v. Tonn, 102 Ark. 20.
It follows that, if the articles in controversy had not been lost, appellant could have collected from appellee the regular schedule freight tariff on such articles. If appellant knew or had notice that such articles were freight, as we have stated, it would be liable for their loss, although it shipped them as baggage. But, on the other hand, if appellant did not know, and was not put on notice by appellee, that such articles were freight, and appellant shipped them as baggage, then appellant would not be liable for their loss unless through gross or wilful negligence; because in such case appellant, at most, could sustain no higher relation to appellee than that of a gratuitous bailee. There would be no contract of carriage whatever between appellant and. appellee. Appellant would be a mere mandatary without pay of the goods for the exclusive benefit of the bailor; and the loss, except for gross or wilful negligence, would have to be borne by appellee. 5 Cyc. 186.
The motion for a rehearing is denied.
Hart, J., concurs for the reasons given in the original opinion.