ON REHEARING.
In his motion for a rehearing, plaintiff attacked the soundness of our declaration in the concluding paragraph of the foregoing opinion that the written contract was supported by the consideration of a reduced rate and, consequently, that plaintiff had expressly released defendant from liability on account of its breach of the prior oral contract. Onr attention was called by this motion to the case of George v. Railroad, 214 Mo. 551, decided by the Supreme Court in November, 1908, and later, counsel brought to our notice the provisions of the amendment to the Interstate Commerce Act, which went into effect August 28, 1906 (commonly called the Hepburn Bill). We sustained the motion for a rehearing and since then, counsel have reargued the case and have filed briefs in which the following questions are exhaustively discussed:
*718First. Do the recitations of the written contract disclose a consideration in the shape of a reduced rate and, second, with respect to interstate shipments, may a common carrier reduce its common law liability by contract supported by a consideration?
The only evidence in the record dealing with the questions which we shall make the subject of this supplemental opinion is the written contract introduced by defendant. We thought the recitation that the rate charged (though referred to as the tariff rate) was less than the rate that would be charged for a shipment under a non-release contract, constituted prima facie evidence that the contract was supported by the consideration of a reduced rate and in the absence of evidence to the contrary, became conclusive.
In this conclusion, we were abundantly sustained by other decisions of courts of last resort in this State. In Wyrick v. Railroad, 74 Mo. App. l. c. 414, we said, speaking through Smith, P. J.: “The recitals of the contract prima facie established that the plaintiff shipped his animals in consideration of a special or reduced fate. And since these recitals axe not contradicted or overthrown by any evidence in the case they must be deemed conclusive.” Speaking of that case, we said recently in Myers v. Railway, 120 Mo. App. 288: “But in'that case the written contract of affreightment expressly recited a reduced rate' as the consideration given for the release agreement and we held that such recital was prima facie evidence of the truth thereof and cast the burden of proof on the shipper,” etc.
In Manufacturing Co. v. Railroad, 196 Mo. l. c. 669, the Supreme Court cited the Wyrick case, and in Wabash v. Sloop, 200 Mo. 198, the same court say: “But the real question in the Wyrick case was that the shipper had signed a written contract in which it was recited that the company had two rates upon live stock and that the rate given was a special rate and under*719stood to be less than tbe published tariff rate. That by reason of having signed this contract without fraud, deceit, imposition or mistake, he was bound by the statements therein and that these recitals were prima facie evidence and established the fact of a reduced rate as consideration for the contract.” The soundness of this proposition was not questioned by the Supreme Court in that opinion.
And further, we thought the employment of the word “tariff” to designate the rate charged did not militate against the recital that it was a reduced rate. Tariff rate can mean nothing but a regular schedule rate as distinguished from a special rate. That common carriers may have two schedule rates applicable to shipments of a given class of property would seem to be consistent. Certainly it is compatible to have one rate for shipments under a non-release contract and a lower rate for those under a released contract and in such case, the latter rate as compared to the former would be a reduced rate. But in this last conclusion, we find ourselves to be at variance with the decision of the Supreme Court in George v. Railroad, supra. In that case the defendant was the same ¡as the present defendant and we infer the contract was substantially the same as that now under consideration. The court held that the word tariff referred to the highest rate the defendant could charge and, consequently, that the subsequent recitals to the effect that it was a reduced rate, however strong, were inconsistent with the statement that the tariff rate had been exacted and on that account should be rejected. We quote from the opinion:
“The contract which defendant produced in evidence in this case recited that the price charged for the transportation was “at the rate of-tariff-per cwt.” A shipping contract in exactly the same words in this respect was construed by this court in Kellerman v. Railroad, 136 Mo. 177, to mean that the *720price charged was the full tariff rate. The statute (sec. 1136, R. S. 1899) requires the railroad company to print and keep posted in their stations a schedule of freight rates and it is forbidden to charge shippers more than those rates. The highest rate that this defendant could have charged the plaintiffs for that shipment was the tariff rate, and that rate covered all that the carrier could demand for the performance of all its common law or statute duty in respect of that shipment. Therefore, when the contract shows that that was the rate charged it was vain to recite therein that it was dess than the rate charged for shipments transported at carrier’s risk.’ The plaintiff is not here contending that the carrier assumed anything more in the way of a risk than that embraced in the duty which the law imposes upon a railroad company in the transportation of live stock carried at the regular tariff rate.”
We are constrained to place the same interpretation on the contract before us, and accordingly- must hold that the term “tariff” refers to the rate charged for shipments under a non-release contract and that controlling effect must be accorded this declaration that the highest rate was charged.
But, defendant argues that a vital distinction exists between the case at bar and the George case. It is pointed out that the Supreme Court was dealing with an intrastate shipment, while we have before us an interstate shipment, and it is argued that interstate shipments are governed entirely by the provisions of the Interstate Commerce Act and that we must follow the decisions of the Federal Courts in our construction of that Act and of contracts relating to interstate shipments. That may be true, but in attempting to escape the doctrine of the George case by seeking refuge in the Federal sanctuary, defendant but jumps from the frying pan into the fire. We concede the ruling of the Supreme Court of the United States in Cau v. Railway, 194 U. S. 428, and in Arthur v. Railroad, 204 U. S. *721505, cannot be harmonized with what was said by onr Supreme Court in the George case. In the Cau case, it was said:
“It is again urged that there was no independent consideration for the exemption expressed in the bill of lading. This point was made in York Co. v. Central Railroad, supra. In response it was said: ‘The second position is answered by the fact that there is no evidence that a consideration was not given for the stipulation. The company, probably, had rates of charges proportioned to the risks they assumed from the nature of the goods carried, and the exception of losses by fire must necessarily have affected the compensation demanded. Be this as it may, the consideration expressed was sufficient to support the entire contract made.’ In other words, the consideration expressed in the bill of lading was sufficient to support its stipulations. This effect is not averted by showing that the defendant had only one rate. It was the rate also of all other roads, and presumably it was adopted and offered to shippers in view of the limitation of the common law liability of the roads.”
But neither this case nor the Arthur case is in point, for the reason that they deal with the Interstate Commerce Act as it stood before the Hepburn amendment, while the shipment in the present case occurred after that amendment went into effect. That amendment contains the following pertinent provisions:
“That any common carrier, railroad, or transportation company receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury, to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and *722no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.
That the common carrier, railroad, or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transportation company on whose line the loss, damage, or injury, shall have been sustained, the amount of such loss, damage or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof.”
So far as we are advised that amendment has not been construed by the Federal courts. In Smeltzer v. Railroad, 158 Fed. Rep. l. c. 666, Judge Rogers said: “The evident purpose of Congress in the enactment of the statute under consideration was to enable the shipper to have recourse to the receiving carrier and leave it to its recourse upon the particular company which inflicted the injury.”
But in that observation, the learned judge did not deal with the question of whether the amendment deprived common carriers of the right to enter into “released” contracts with their shippers. The language of the Amendment is susceptible of no other reasonable interpretation than that Congress intended to give a shipper of an interstate shipment recourse against the receiving shipper for any loss, damage or injury to the property caused by such carrier or any connecting carrier. The scope of the word “caused” as thus employed is coextensive with the full measure of a carrier’s liability at common law. And it is expressly provided that no contract the carrier may make with the shipper, whether or not it be supported by a consideration shall have the effect of releasing any part of the ■ carrier’s common law liability. Such, evidently, was the con*723elusion of Judge Goode in Blackmer v. Railroad, 119 S. W. 1; — Mo. App. —: “We observe that if a receipt is construed to be a through contract, it is so for the purpose of extending the initial carrier’s liability as an insurer as well as for negligence; and as the Interstate Commerce Act appears to forbid any limitation of a carrier’s liability as insurer when it contracts to carry through (section 20, Interstate Commerce Act Feb. 4, 1887, c. 104, 24 Stat. 386 (U. S. Comp. St. 1901, p. 3169), as amended by Act of June 29, 1906, c. 3591, sec. 7, 34 Stat. 593 (U. S. Comp. St. Supp. 1907, p. 906), this onerous obligation must attach to interstate shipments out of Missouri, unless the bill of lading is so drawn as to satisfy the courts it is for local carriage only.”
We conclude that from whatever angle it is viewed the written contract before us must be held void, its contractual stipulations ignored, and defendant held to the common law liability that would have obtained had no written contract been executed. In this view, we recede from that part of our decision in the foregoing opinion which holds that the instruction on the measure of damages was erroneous. It follows that the judgment must be affirmed. It is so ordered.
All concur.