The opinion of the Court was delivered by
Willard, A. J.Plaintiff’s trunk was delivered to Adams’ Express Co., at Philadelphia, to be transported from that place to Charleston, and a bill of lading taken containing the following clause, introduced after a stipulation of the terms of carriage and *241liability, as between the shipper and Adams’ Express Co., viz: “ And if the same is entrusted or delivered to any other express company, or agent, (which said Adams’ Express Co. is hereby authorized to do,) such company or person so selected shall be regarded exclusively as the agent of the shipper or owner, and as such alone liable; and the Adams’ Express Co. shall not be in any event responsible for the negligence or non-performance of any such company or person ; and the shipper and owner hereby severally agree that all the stipulations and conditions in this receipt contained shall extend to and enure to the benefit of each and every company or person to whom the Adams’ Express Co. may entrust •or deliver the above described property for transportation, and shall define and limit the liability therefor of such other company or person.”
Under this agreement, the Adams’ Express Co. delivered the trunk to the defendants at Richmond, to be conveyed by them and delivered at Charleston. Delivery was made accordingly. The plaintiff now sues the defendants, alleging the loss, through negligence of defendants, of valuable jewelry contained in the trunk at the time it was delivered to Adams’ Express Company.
The Circuit Judge was requested to charge “ that the defendants were entitled to the benefit of any contract appearing on the receipt, and any transaction between Adams’ Express Co. and the plaintiff in reference to the trunk.” This request to charge was refused, and the refusal was clearly erroneous. As between the Adams’ Express Co. and the owner the terms of the bill of lading are to be regarded as modifying, in certain particulars, the common law liability of the company as common carriers. — Stadtucker vs. Combs, 9 Rich., 193 ; Singleton vs. Hilliard, 1 Strob., 205 ; Swindler vs. Hilliard, 2 Rich., 286 ; Baker vs. Brinson, 9 Rich., 201.
The shipper having authority to ship must be regarded as authorized to bind the owner by a contract containing special terms of shipment.— York Co. vs. Railroad, 3 Wall, U. S., 107. Adams’ Express Company had express authority to employ the defendants as common carriers, and to fix the terms of the contract in conformity with the terms stipulated between the shipper and themselves. It is to be presumed, as the case stands, that the defendants accepted the trunk on the terms of the original bill of lading, and such acceptance is accordingly special, and subject to such terms. The last clause of this request to charge is broadly stated, but must *242be construed as confined to such transactions as appeared in evidence. The case shows no transaction between Adams’ Express Company and the plaintiff or shipper that could be drawn into improper consideration by the concluding clause of the request. If anything appeared on the trial that would be placed in an improper light before the jury by such concluding clause it was for the parties to bring it before us. As the case stands, we must regard the “ transactions ” spoken of in the request as the contract itself, and such matters as formed part of the res gestee.
The refusal to charge was clearly erroneous.
The second request to charge was “that from these” (namely, the transactions between Adams’ Express Company and the shipper,)- “ it had the right to assume that it did not contain articles of special value, and for such articles it was not then responsible, nor for any injury to the trunk beyond the $50, the limit of responsibility without notice stated in the receipt.” This request to charge was also refused. This request implies that, as matter of legal conclusion derived from the terms of the contract itself, the defendants must be regarded as in the same position as if the shipper had informed them that the whole value of the trunk and its contents did not exceed fifty dollars. Such a representation would, doubtless, affect the liability of the defendants, for they are bound to a greater degree of care where articles known to be of large value are committed to their care than when the value is small. The rule of ordinary care and diligence leads to this result. Especially is it so in a case of loss by robbery when the risk increases with the temptation as the value of the goods increases. But the bill of lading here will not bear the construction thus attempted to be put upon it. It is not to be assumed that the amount of fifty dollars was put into it with any special reference to the trunk in question, as the result of any estimate of its value; on the contrary, it must be assumed to have been placed there in conformity with some general regulation of the Adams’ Express Company by which their liability was to be limited in all cases, in the absence of special circumstances, or of the payment of a special rate covering insurance to a larger amount.
It cannot, therefore, be considered equivalent to a guaranty as to value, nor a representation of value made by the shipper. If the defendants were warranted in concluding that the trunk did not contain articles of special value calling for particular care, that, *243regarded as an inference from attending circumstances, can only be drawn by the jury, and under this view the matter requested to be charged and refused could not have been charged without an assumption on the part of the Court of functions proper to the jury.
The Circuit Judge charged “ that the defendants were responsible for articles of special value in the trunk, whether known to it or not, and that it is enough to charge them that the goods were in the .trunk, and lost therefrom while it was in possession of the defendants, and that the foot notes to the receipt of an Express Co. are not to be considered, and that, notwithstanding the limitation of loss to fifty dollars, in the absence of any other value mentioned, the defendant was responsible for what may have been the real value of the articles.” This proposition virtually holds that the defendants are liable as insurers, without proof of negligence, for the full value of the trunk and its contents, without regard to the limitation of fifty dollars. This charge was contrary to the settled law of this State, defendants’ liability as insurer being limited to that sum.
According to the bill of lading, as produced before us, the terms in contest are in the body of the instrument, and not attached merely as forms of notice; but had it been otherwise, the position of the terms on the paper would not have been decisive of the question whether they entered into the contract evidenced by it, but, in addition to that, the character of the terms and their relation to the body of the bill of lading would have to be considered as bearing on that question.
The limitation of fifty dollars forms part of the contract in this case, and affords ground sufficient for holding the charge to be erroneous. As the question of negligence on the part of the defendants is not involved in the exceptions, we are not called upon to consider that aspect of the case. In the event of a new trial it may become important, in pursuing the enquiry, whether the defendants exercised the amount of care and diligence to which they were bound, are chargeable either directly or inferentially with-the knowledge of the fact that the value of the trunk and its contents greatly exceeded the amount of fifty dollars, the limit of their liability as insurers ; but for want of a proper basis of fact to apply them to, the rules of law controlling such enquiry cannot be appropriately stated at this time.
There should be a new trial.
Moses, C. J., and Wright, A. J., concurred.