ON PETITION EOR REHEARING.
Beard, Chiee Justice.The defendant in error has filed a petition for rehearing, but no questions not discussed and decided in the opinion handed down are presented. Counsel does not seem to keep in mind the distinction between the liability of a common carrier as an insurer and for negligence, and argues *424'the case on the theory that the contract was invalid because the law forbids such carrier to contract for exemption ■from liability on account of its negligence. But this is not that kind of a case. Negligence, in order to'be proven, ■must be alleged; and we think we quite clearly explained that the petition in this case does not charge negligence. It is further urged that the agency of the Storage Co. was not established, because agency cannot be established by the declarations of one claiming to be agent. Here, again, we have no such .question. No declarations or statements of the agent were offered in evidence. Mr. Blyth testified that he directed the storage company to pack and ship the goods, and the agent who did ship them was on the stand as a witness. It is true that agency cannot be established by the mere declarations of one claiming to be an agent; but it is equally true that such a one is a competent witness to prove his agency. It is further claimed that the railroad company admitted its liability by offering to confess judgment for $20. But nowhere did it admit that the loss Was the result of any negligence on its part; and the plaintiff below might have taken judgment on the pleadings for $20. It is now argued that we should have directed such judgment to be entered instead of remanding the case for further proceeding. Probably, under our statutes, we might have done so; buff we did not think we should deprive the plaintiff below of the privilege of applying to the district court for leave to amend his petition, if the facts would warrant an amendment and lié be so advised. We see no good reason for departing from the decision as handed down, and therefore a rehearing is denied.
Rehearing denied.
Scott and Potter, JJ., concur.