dissenting:
I concur in the veiw' that the liability of the plaintiff in error, in this case, was that of a common carrier, and not that of a warehouseman. I am constrained, however, to dissent from the conclusion reached by a majority of the court, that the plaintiff in error was not entitled to limit its liability, in the event of loss or damage to baggage, in consideration of a reduced charge for transportation.
A common carrier cannot lawfully stipulate for exemption from liability for the consequence of its own negligence, or that of its servants. This is the common law doctrine, which has beén more than once announced by this court. Railroad Co. v. Sayers, 26 Gratt. 328.
'At the time of thé purchase of the ticket here involved (March 1, 1903), this common law rule had been carried into section 1296 of the Oode of 1887, which provides as follows: “No agreement made by a common carrier for exemption from liability for injury or loss occasioned by his own neglect or misconduct, shall be valid.”
When the fire was first discovered, it was burning on the inside of the station building. Its origin does not clearly appear, but assuming that it was the result of negligence on the part of thé agents of the defendant company, the question to be determined is, whether, in view of sec. 1296, supra, a common carrier can ináke a valid and binding contract, not exempting the carrier froln liability for the negligence of itself or its servants, but limiting the amount in which the carrier shall be liable, in consideration of carriage at a reduced rate.
*803Tliis question was settled in this State by a well considered opinion, in which it is held, that the statute was merely declaratory of the common law, and that such a contract fairly entered into is valid and binding', the court saying': “We see no reason why, when its terms are just and reasonable, it should not be. The test to be applied in all such cases is, was the contract fairly entered intoj and are its terms just and reasonable ?” Richmond & D. R. Co. v. Payne, 86 Va. 481, 10 S. E. 749, 6 L. R. A. 849.
In the case at bar, there is no question that the contract was fairly made, that Dudley secured a reduced charge for transportation, and that he signed the contract agreeing to a valuation of $100.00 for any loss or damage to his baggage, in consideration of the reduced charge for travel.
The cases involving this question are numerous and conflicting, different rules prevailing in different States. In the Payne Case, supra, this court followed the view repeatedly announced by the Supreme Court of the United States. I think the weight of authority and the better reason is in favor of that rule. It rests upon the theory that the agreement to limit the liability, in consideration of a reduced charge, is nothing more than a contract in advance, by which the parties agree upon and fix the value of the thing transported so that the shipper cannot pay for shipping property of one value at a reduced rate and when loss occurs demand payment upon another and higher valuation. The traveler or the shipper has two courses open to him, either of which he has the free and untrammeled right to adopt. He can either pay the regular fare and carry his goods at an unlimited valuation; or he can pay the reduced charge and carry them at the valuation then agreed upon in consideration of such reduced cost of transportation. No reason is perceived why such a contract, fairly made, should not be valid and binding. It is not inconsistent with public policy. Indeed, it has been said that to permit a party to repudiate such *804a contract would be repugnant no less to public policy than to fair dealing. Hart v. Penn. R. Co., 112 U. S. 331, 28 L. Ed. 717, 5 Sup. Ct. 151, and cases cited. The principle settled by this case has been followed in a number of subsequent decisions of the Supreme Court. See the more recent cases of Chicago, &c., R. Co. v. Solan, 169 U. S. 133, 42 L. Ed. 688, 18 Sup. Ct. 289; Calderon v. Atlas Steamship Co., 170 U. S. 272; 42 L. Ed. 1033, 18 Sup. Ct. 588; Penn. R. Co. v. Hughes, 191 U. S. 477, 48 L. Ed. 268, 24 Sup. Ct. 132, and the cases there cited.
Apart, however, from the merits of the question at issue, it is, in my opinion, upon well settled principles, beyond the reach of further judicial inquiry, so far as this jurisdiction is concerned. As already seen, this court in Richmond & D. R. Co. v. Payne, supra, construed section 1296 of the Code of 1887, holding that, notwithstanding the statute, a common carrier could limit its liability in consideration of reduced charges for transportation, if the contract was fairly entered into and its terms were just and reasonable. By act approved January 18, 1904, before this cause of action arose, section 1296 of the Code of 1887, was re-enacted by the Legislature, in practically the same words, as follows: “No agreement made by a transportation company for exemption from liability for injury or loss occasioned-by its own neglect or misconduct as a common carrier shall bo valid.” Acts, 1902-3-4, p. 968; cl. 25, sec. 1294c, Ya. Code, 1904. It has now been fifteen years since section 1296.of the Code of 1887, was construed in R. & D. R. Co. v. Payne, supra. During all of that time, although recently reenacted by the Legislature, no change has been made in the statute which affects the interpretation then given to it.
. In Mangus v. McClelland, 93 Va. 786, 22 S. E. 364, this court said: “It is a familiar rule of construction that, when a statute has been construed by the courts, and is then re-enacted by the Legislature, the construction given to it is presumed to be sanctioned by the Legislature, and thenceforth becomes obli*805gatory upon tbe courts. See Anable’s Case, 24 Gratt. 563, where this rule of construction was held to be binding upon courts even in a criminal case, and a fortiori is binding upon them in civil cases.”.
This doctrine has long been accepted and acted upon as settled law in this State, in those cases where foreign statutes are adopted by our legislature, as well as where our own statutes are re-enacted. Doswell v. Buchanan, 3 Leigh. 394, 23 Am. Dec. 280; Danville v. Pace, 25 Gratt. 1, 18 Am. Rep. 663; M. & W. Ry. Co. v. Old Dom. Bag. Co., 99 Va. 111, 37 S. E. 784, 50 L. R. A. 722; Swift & Co. v. Wood, 103 Va. 496, 49 S. E. 643.
In the light of these authorities, I am of opinion that, whatever may be the view of this court upon the question involved, as an original proposition, it cannot now b.e re-opened. With full knowledge of the judicial interpretation given the statute, it has been accepted and acquiesced in for fifteen years, and'now that it has been re-enacted, “the construction given to it is presumed to be sanctioned by the legislature and has, therefore, become obligatory upon the courts.”
For these reasons, I am of opinion that the judgment should be reversed.
Affirmed.