On Eehearing.
The petition of the plaintiff for a rehearing having been granted, a reargument of the case was had, and extended briefs were filed
*277At the beginning of paragraph 3 of the main opinion, the writer hereof made an error in saying, “Because it is not contended that there was any proof of notice given under the terms of this special contract.” There is evidence that such notice was given, and counsel for defendant does not dispute the fact. The petition for rehearing was based largely upon this inadvertent misstatement of the evidence. We wish to say, however, that the language of the opinion, with the above-quoted words omitted, expresses the real and paramount thought, and what follows is not changed in the slightest degree by a reversal of that particular statement of fact. The record was being discussed in the light of the pleadings, the evidence, and the motion made. From such discussion, the conclusion followed that “plaintiff charged a tort, proved a contract, and asked judgment,” which cannot be permitted, unless, indeed, the rule of pleading is different when a common carrier, and not a private citizen, is being sued.
In the case at har, the defendant made a lawful contract with plaintiff. That contract in no manner violated the provisions of § 5678, Bev. Codes 1905, with reference to exempting defendant from liability for negligence. Plaintiff must have known that fact. His counsel in argument concedes it; and yet, because the suit is brought against a common carrier, a special privilege is invoked, which would result in violating well-settled rules of pleading, to the utter confusion of that uniform practice so essential in securing justice in the courts of the land.
The discussion of the matter by counsel upon the rehearing, and their complete briefs filed, serve only to amplify and make clear the rule adopted by the court in the first instance. In addition to the cases cited and considered in the main opinion counsel for plaintiff calls attention to the cases of Nicoll v. East Tennessee, V. & G. R. Co. 89 Ga. 260, 15 S. E. 309, and Estes v. Denver & R. G. R. Co. 49 Colo. 378, 113 Pac. 1005, and cases in that opinion cited.
In Nicoll v. East Tennessee, Y. & G. R. Co. supra, there is no discussion of the principles invoked whatsoever. It is simply a per curiam decision, “Judgment reversed.”
In the Colorado case (Estes v. Denver & R. G. R. Co.), it must be conceded that language is used fully sustaining plaintiff’s contention. Yet, when the pleadings are examined, .it will-be noticed that, unlike *278tbe case at bar, there is found no general denial; while in the answer a special contract was pleaded, and a reply followed, admitting the contracts. A failure to deny the allegations of the complaint was tantamount to admitting them to be true, and evidently reliance was laid wholly upon the defense of a contract. The facts in that case seem also to be different from those in the case at bar. The court, in referring to them, uses this language (49 Colo. 387, 113 Pac. 1008) : “Where, then, as in the present instance, the carrier undertakes by special contract to exempt itself from liability for negligence [the italics are ours], such contract to that extent is a nullity. Consequently the carrier is still liable for negligence as at common law, and necessarily suit may be maintained by the shipper for a breach of the carrier’s duties in this respect. In other words, in such circumstances, the carrier is not liable for the violation of the terms of a special contract, but for the violation of a duty imposed by law, which it cannot escape by contract.”
In the case at bar, we are not dealing with a contract which undertakes “to exempt itself [the defendant] from liability for negligence,” but, upon the contrary, with an agreement, every part of which concededly recognizes the liability for negligence, but, coupled with that, for the consideration of reduced rates given, are found new contractual relations between the parties, every one of which is legal.
In attempting to analyze the apparent conflict between the cases, it seems to us there has been a failure to recognize certain fundamental principles always found existing in cases where dealings are had with common carriers. Counsel for defendant, on rehearing, have pointed out so clearly these relations that we quote directly from their brief (page 6) : “It seems that this case is made intricate and puzzling only because of a failure to carefully discriminate between the common-law liability, and the contractual liability, and the use of general expressions, which, it is claimed, cover both situations. If we had a case where the statutory and contractual liability was the same as the common-law liability, then it is possible, and it would not be unreasonable, to establish a rule that all of the matters in controversy could be determined in one action; for there would then be no conflict as between the common-law liability and the contractual liability, and the modifications contained within the contract would not change the nature of the liability, but would merely go to incidents connected with the same *279Jcind of liability that was present tinder both the common-law liability and the contractual liability; and this is where counsel has been misled, and where some of the decisions do not discriminate when they use the term ‘special contract.’ In many of the cases, the special contract referred to is nothing more nor less than a bill of lading, a shipping receipt, or an instrument signed by both parties — papers which do not change the nature of the liability, nor the relations of the parties, but merely contain restrictions or modifications of that liability. That, however, is not the fact in this case; for we do not have a contract in which the liability is the same as a common-law liability, but we have a contract in which the liability of the carrier has been absolutely .and directly changed by the agreement of the parties for a special consideration going to the benefit of the shipper, and which he accepts. It cannot be disputed but that there is an entire change in the nature of the liability, and, in fact, the entire groundwork of liability is different.”
As was stated in Baltimore & O. S. W. R. Co. v. Ragsdale, 14 Ind. App. at page 410, 42 N. E. at page 1107: “The complaint declares upon the common-law liability. It did not declare upon the special contract, — the bill of lading. It seems to be settled by the decisions in this .state that, if the shipper declares upon an implied contract, or the common-law liability, and it appears that the shipment was made in pursuance of a special contract, or bill of lading, he must fail. The moment it appears that the contract is a special one, and was not an implied one, there is a fatal variance, and it would be the duty of the court to instruct or find for the defendant.” See also Stewart v. Cleveland, C. C. & St. L. R. Co. 21 Ind. App. 218, 52 N. E. 91; Honeyman v. Oregon & C. R. Co. 13 Or. 352, 57 Am. Rep. 20, 10 Pac. 630; Brounton v. Southern P. R. Co. 2 Cal. App. 173, 83 Pac. 265; Stump v. Hutchinson, 11 Pa. 533; Nashville, C. & St. L. R. Co. v. Parker, 123 Ala. 683, 27 So. 323, 324; Harris v. Hannibal & St. J. R. Co. 37 Mo. 309, 310; Indianapolis, D. & V. R. Co. v. Forsythe, 4 Ind. App. 326, 29 N. E. 1138; Baltimore & O. S. W. R. Co. v. Ragsdale, 14 Ind. App. 406, 42 N. E. 1107, supra; Davidson v. Graham, 2 Ohio St. 132; Parrill v. Cleveland, C. C. & St. L. R. Co. 23 Ind. App. 638, 55 N. E. 1031; Lake Shore & M. S. R. Co. v. Bennett, 89 Ind. 471; Kimball v. Rutland & B. R. Co. 26 Vt. 247, 62 Am. Dec. 567; Baltimore & O. R. Co. v. Rathbone, 1 W. Va. 87, 88 Am. Dec. 665; Squire v. New *280York C. R. Co. 98 Mass. 239, 93 Am. Dec. 165-167; Camp v. Hartford & N. Y. S. R. Co. 43 Conn. 333; George N. Pierce Co. v. Wells, F. & Co. 110 C. C. A. 645, 189 Fed. 561. And, as involving tke principles, see also Exposition Cotton Mills v. Western A. R. Co. 83 Ga. 441, 10 S. E. 113; Harris v. Hannibal & St. J. R. Co. 37 Mo. 307; Hackett v. Bank of California, 57 Cal. 336; Minneapolis Harvester Works v. Smith, 30 Minn. 399, 16 N. W. 466; Walter v. Bennett, 16 N. Y. 253; Kewaunee County v. Decker, 34 Wis. 378. See also 3 Enc. Pl. & Pr. 849; 6 Cyc. 513.
Tbe order and judgment of tbe lower court are affirmed.
Burke, J., disqualified.