(concurring). Having carefully considered the reasoning of Justice Smith, and being firmly convinced that he has placed a wrong construction upon the words of Justice Eurton quoted from the Croninger case, I feel constrained, in view of the. unusual importance of the question before us, to add a few words to what seems to me to be a most clear and convincing discussion thereof by Justice MeCOY.
When construing the language of any opinion, the one thing which, above all others, should always be kept in mind, is: What was the real question before the court for consideration and which was necessarily answered by such decision. Having ascertained what was the question considered, then, presuming, as one should, that every word used was intended to have some bearing upon such question, it should be possible to arrive at an absolutely corned: construction of such opinion. What was the question before the' court in the Croninger case? It was certainly not the question of the right of a shipper to sue a connecting carrier, as such question was not in the remotest degree connected with the case. Two questions were before the court in that case: (i) Did the Carmack Amendment or the law of Kentucky control the validity of the contract whose terms fixed a limitation of value upon the property described in a bill of lading, the shipment being interstate? (2) Was such limitation valid under federal statute? It was the first of these questions that demanded the chief attention of the federal court, and it was in connection with the discussion thereof that Justice Eurton used the words quoted by Justice SMITH and upon which, as I am convinced, he has placed an erroneous construction. Previous to the enactment of the Carmack Amendment, it had been held that the state law — statutory or 'otherwise — controlled the validity of a contract entered into within a state even though such contract related to an interstate shipment. Penn. R. Co. v. Hughes, 191 U. S. 477, 24 Sup. Ct. 132, 48 L. Ed. 268. It was contended that the body of this amendment was enacted for the purpose of rendering the initial carrier *65liable for damages resulting from negligence regardless of which carrier was guilty of negligence, but that the proviso left the validity of that provision of the contract relating to limitation of liability, and therefore the measure of liability, to be determined by the law of Kentucky. That the effect of such amendment was to render the initial carrier liable was not questioned, but it was the view of the court that, if state laws were to control the validity of the provision of a contract entered into under such amendment, it “would cause the proviso' to destroy the act itself.” This ivas clearly the controlling thought of the jurist who wrote the opinion. He said:
“Prior to that (Carmack) amendment the rule of carrier’s liability, for an' interstate shipment of property, as enforced in both federal and state courts, was either that of the general common law as declared by -this court and enforced in the federal courts throughout the United States (Hart v. Pennsylvania R. Co., 112 U. S. 331, 5 Sup. Ct. 151, 28 L. Ed. 717), or that determined by the supposed public policy of a particular state (Pennsylvania R. Co. v. Hughes, 191 U. S. 477, 24 Sup. Ct. 132, 48 L. Ed. 268), or that prescribed by the statute laws of a particular state (Chicago, M. & St. P. R. Co. v. Solan, 169 U. S. 133, 18 Sup. St. 289, 42 L. Ed. 688).”
He thus called attention to three classes of law, distinguished the one from the other according to the source from whence each sprang, and noted that the federal court had, prior to such amendment, recognized all three of these classes of law as controlling the liability of carriers in particular cases; in answer to the contention that the proviso' in such amendment had the effect o£rendering the terms of interstate contracts still subject to all the above three classes of law, Justice Lurton says:
“This view is untenable. It would result in the nullification of the regulation of a national subject and operate to maintain the confusion of the diverse regulation [the common law as declared by- the federal court, the law as determined by the .supposed public policy of a particular state, and the statutory law of a particular state] which it was the purpose of Congress to put an end to.”
Justice Lurton recognized that there was a limitation to the *66éffect of the body of the amendment, which was established through the enactment of the proviso; but he held that such limitation must be one in harmony with the “purpose of Congress to put an end to” the then existing “diverse regulation.” He therefore 'held that the words, “existing law,” as found in such proviso, meant the “general common law, as declared by ■that court”; but held that the words “existing law” did not refer to that law “determined by the supposed public policy of a particular state, or that prescribed by statute law of a particular state.” H|e said:
“To construe -this proviso as preserving to the holder of any such bill of lading any right or remedy which he may have had under existing- federal law at the time -of his action gives to it a more rational interpretation than one which would preserve rights and remedies under existing state laws, for the latter view would * * * destroy the act itself.”
He thus announced what “existing law” must still be recognized in determining- what remedy or right of action one had tinder the Carmack Amendment, but he did 1 not, in any manner, determine against whom such right of action existed; this question not being before the court. But, >as • illustrating how this federal law would be controlling, even in an action brought against the connecting carrier, who, of course, would not be a party to the shipping contract, and, by the same words, clearly recognizing the continuance of a right of action by the shipper against the. -connecting carrier, Justice Burton continued :
“One illustration would be a right to a remedy against a succeeding carrier, in preference to proceeding against the primary carrier, for -a loss or damage incurred upon the line of the former. The liability -of -such succeeding carrier in the route would be that imposed by this statute, and for which the first carrier might have been- made liable.”
In other words, Justice Burton said: One illustration of the -effect of -this amendment is that, if a party elects to proceed against a succeeding -carrier in- preference to proceeding against the carrier with whom his contract is made, yet, under such amendment, the terms of such contract will fix the liability of the succeeding carrier just as it would have fixed that of the primary carrier if such party had elected to take advantage. of *67the ' privilege given by such amendment and had proceeded against such primary carrier. Varnville Furniture Co. v. Charlestown & W. C. Ry. Co., 98 S. C. 63, 79 S. E. 700. I can find no word or words in the opinion in the Croninger case that either directly or by the remotest inference infers or implies that the common-law right to proceed against the connecting carrier, as such right had theretofore been recognized by the federal courts, had been destroyed by such amendment; but said -decision -clearly holds that, ' regardless of which -carrier ' an action is brought against, its liability can be no greater than w-o-uld be the liability of -the initial carrier, whenever such party has, under the provisions of the 'Carmack Amendment, entered into a shipping contract containing fair and .reasonable limitations as to liability.
If anything more was needed to establish the correctness of the above conclusion, it is -found in the following: In referring to the -effect o-f the Carmack Amendment, Justice Day, in Boston & M. R. Co. v. Hooker, 233 U. S. 97, 34 Sup. Ct. 526, 58 L. Ed. 868, says:
“T-he subject of interstate transportation of property has ■been regulated by federal law to the exclusion of the power of •the states to -control in such respect by their own policy or legislation.”
And he cites the Croninger case as supporting the above. And in the -same case Justice Pitney, referring to- the Croninger case, says that therein it was held:
“That by the Carmack Amendment the subject-matter of the liability -of railroads under bill-s of lading issued for interstate freight is -placed under federal regulation so as to supersede _ the local law and policy of the several states, whether evidenced bv judicial decision, by statute, or by state Constitution.”
And Justice Pitney also s-ays that the Croninger case held affirmatively:
“That in matters not covered by its own express terms it had the effect of establishing the common-law rules respecting the carrier’s liability, as laid -down in the -previous decisions of this court, and adopted generally by the federal courts.”
If there was left any doubt as -to -the holding in the Croninger case, if there was room- for one to infer, fro-m the lan*68guage thereof, that the court -had not only passed upon the two questions presented U> it, but upon the right of the shipper to sue the connecting carrier — a question clearly not raised by the issues of the cause — yet there was left no room for any such inference when, within a very few weeks after writing the opinion in the Croninger case, Justice Lurton wrote the opinion in Kansas City S. R. Co. v. Carl, 227 U. S. 639, 33 Sup. Ct. 391, 57 L. Ed. 683. This was an action originally brought in a state court, and from the Supreme Court of that state an appeal was taken to the federal court; it was :an action wherein the shipper was suing- a connecting- carrier. As stated in the opinion, the sole question passed upon by the state court and the' sole question before the federal court was:
“As to whether the plaintiff in error, as the final carrier in the route, was entitled to the benefit of the stipulation in the release signed, releasing the * * * primary carrier 'and all ■other railroad and transportation companies over whose lines the * * * property may pass to destination, from any loss or damage the propery ma}*- sustain in excess of $5 per hundredweight.’ ”
Remembering that the consideration of this question, when raised in an action between a shipper and connecting carrier, must assume a right of action by the shipper against the connecting carrier for a recovery of an amount not exceeding $5 per hundredweight, it’ is clear that the case proceeded upon the •theory that the shipper had a right to sue such connecting carrier. Remembering, also, that it was the liability to the shipper that was under consideration, it is clear that it was 'this liability to tire shipper that Justice Lurton was referring to when he said :
“The liability of any carrier in the route over which the articles were routed, for the loss or damage, is that imposed by the act as measured by the original contract of shipment so far as it is valid under the act.”
It is absolutely inconceivable that the learned Justice would have gone into an elaborate discussion of the question of limitation in amount upon the carrier’s right of recovery, if, but a few days prior thereto, the court, through himself, had held that, under said Carmack Amend'ent, there could be no' liability *69of the connecting carrier to the shipper. Again, in the case of Missouri, K. & T. Co. v. Harris, 234 U. S. 412, 34 Sup. Ct. 790, 58 L. Ed. 1377 (which case is referred to by Justice McCOY and which was a case wherein the shipper was suing the connecting carrier, we find the court, in harmony with what was said in both the Hooker and 'Carl cases, declaring that the Croninger decision, as well as the many decisions based thereon, held “that the special regulations and policies of particular states upon the subject of the carrier’s liability for loss or damage to interstate shipments and the contracts of carriers with respect thereto have been superseded”; and, by its decision in such case recognizing fully the liability of the connecting carrier to the shipper by sustaining a judgment for costs, which right to costs could rest only upon the existence of a right of action by such shipper against the connecting carrier.