Decided June 22, 1911.
On Petition for Rehearing.
[116 Pac. 1070.]
Opinion
Per Curiam.In the petition for rehearing, it is urged that the limitation of the liability was based on a special consideration, viz., a reduction in the price of the ticket. But defendant’s counsel mistake the terms of the stipulation in the ticket. The reduction of the price of the ticket is not made in consideration of the limitation of the *176baggage. The ticket is in form a first-class ticket. Whether it is sold as a first or second class ticket is to be indicated, as the one or the other, by the place it is punched on the first coupon. The contract of the ticket contains seven specifications. The third one states that, if sold as a second class, the purchaser is only entitled to second-class passage, and each of the other six conditions of the ticket apply alike to the holder of the ticket, whether first or second class; and the seventh condition, limiting the liability of the baggage, applies to all holders of the ticket, regardless of the price for which it was purchased, and has no bearing on the price of the ticket, other than it may have been considered in fixing the fare specified in the schedule filed with the Interstate Commerce Commission. But it is held in the case of Normile v. Oregon Nav. Co., 41 Or. 177 (69 Pac. 928): “No sort of consideration, whether it is based upon a different or lower tariff, or whatever it might be, will therefore exempt the carrier, in whole or in part, from liability attributable to his own negligence; and, where such is the essential purpose of the contract, it cannot be upheld.”
13. Defendant also mistakes the effect of the seventh clause of the contract, limiting the liability of the company. It is not a stipulation of the value of the goods shipped, but limits the liability to $100 in any case, and is not an agreed value of the goods shipped. “The baggage liability is limited to wearing apparel only, not exceeding $100 in value,” and the passenger does not participate in fixing the amount. He is required to accept the stipulation on the ticket, or leave his baggage. This is conceded in the second brief filed on this motion, where it is contended that the limitation is fixed by the schedule of rates filed by the company with the Interstate Commerce Commission, and has the force and effect of a law. Without assenting to that statement, certainly there was no agreement as to the value of the goods shipped.
*177Mr. Justice Wolverton, in Normile v. Oregon Nav. Co., 41 Or. 177 (69 Pac. 928), makes the distinction between an attempt by the. carrier to stipulate against liability, regardless of the value, and a stipulation fixing the value of the freight to be carried; and counsel for defendant claim that this case comes within the latter class, but in this he is in error. It is said at page 184 of 41 Or. (69 Pac. 930) : “It is a sound and wholesome doctrine, based upon considerations of public policy and fair dealing, that a common carrier will not be permitted to stipulate against liability for the loss or injury of property intrusted to it for carriage and transportation occasioned by its own negligence. * * Nor can the carrier be permitted to stipulate or contract for partial or limited exemption from liability occasioned by its negligence with any more reason than it may for a total exemption.” And, on the other hand, he recognizes that the shipper may agree with the company upon the value of the goods shipped, and be bound thereby, and “if the plaintiff freely, and without restraint — that is, was laboring under no such inequality of conditions, as that he was compelled to enter into the contract, whether he would or not, in order to have his stock carried — executed the contract in question, he is bound by the stipulations as to the value.” Here there is no stipulation as to value, but there is an attempt to limit the liability, regardless of value.
14. In the second brief, it is contended that as by the first paragraph of section 6 of the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 380 [U. S. Comp. St. 1901, p. 3156]), railroads are required to print for public inspection “schedules showing the rates and fares and charges for transportation of passengers and property * * and shall also state separately the terminal charges and any rules and regulations which in any wise change or affect or determine any part of the aggregate *178of such aforesaid rates, fares and charges,” and by the fifth paragraph of section 6 it must “file with the commission, hereinafter provided for, copies of its schedule of fares, rates and charges which have been established,” that, therefore such schedules when filed with the commission are conclusive on the shipper and the carrier, and that as the schedule so filed by the defendant provides that “liability of this company and of other lines over which baggage is checked is limited to $100,” therefore both the company and the plaintiff were bound by that limitation. But we do not concur in these views. Rules and regulations affecting the rates are to be printed in the schedule kept by the company for public inspection; but it is the schedules of the rates, fares, and charges that are to be filed with the commission, and cannot be deviated from. There is nothing in the act that authorizes the company to limit its liability against its own negligence, or that makes a statement of limitation of liability in the schedule enforceable by the commission, or binding upon the shipper. In this case neither was it the subject of agreement between the company and the carrier, but was imposed by the company as a condition of the sale of the ticket, and in signing the ticket the plaintiff was laboring under such an inequality of conditions as that he was compelled to enter into the contract, whether he would or not, in order to have his baggage checked. As said in Normile v. Oregon Nav. Co.: “If the purpose of the contract was merely to place a limit on the amount for which the defendant shall be liable — that is to say, exempt it in any measure from full liability, as respects the value of the property concerned — then clearly, as to any losses resulting from negligence, it cannot be helped (upheld), and this upon the ground that it would not be just and reasonable.”
The petition is denied.
Affirmed: Rehearing Denied.