(after stating the facts). Counsel for the defendant asked the court to instruct the jury that the plaintiff’s damage should be computed upon the basis of the value, of the property being the bona fide invoice price to dhe plaintiff, including freight charges, at the city of Rogers at the time of shipment, and assigns as error the action of the court in refusing to give this instruction. His contention is (based upon the clause in the bill of lading, which provided that the invoice price at the city of Rogers, including the freight charges, should be the measure otf damages.
It has been repeatedly held by the Supreme Court of the United States in recent decisions that Congress has, by virtue of the Carmack amendment to the interstate commerce act, superseded all State statutes and regulations, and that the validity of any stipulation in a contract for an interstate shipment which undertakes to limit the carrier’s liability is a Federal question to be determined by the State and Federal courts under the rule as declared by the Federal courts. That rule is that while a comm on carrier can not exempt itself from negligence, it may by fair and reasonable exemptions limit the amount recoverable by a shipper to an agreed value made for the purpose of obtaining a lower rate of two or more rates, proportionate to the amount of the risk. Atchison, Topeka & Santa Fe Railway Co. v. Robinson, 233 U. S. 173; Boston & Maine Rd. Co. v. Hooker, 233 U. S. 97; Chicago, R. I. & P. Ry. Co. v. Cramer, 232 U. S. 490; Adams Express Co. v. Croninger, 226 U. S. 491; Kansas City So. Ry. Co. v. Carl, 227 U. S. 639; Missouri, Kansas & Texas Ry. Co., v. Harriman, 227 U. S. 657.
(1) In the application of this Federal statute we are controlled by the construction given it by the Supreme Court of the United States, and the rule has been followed in Kansas City So. Ry. Co. v. Mixon-McClintock Co., 107 Ark. 48, and United States Express Co. v. Cohn, 108 Ark. 115. Thus, it will be seen that the liability imposed by the Federal statute is the liability imposed by the common law upon a common carrier, and it may be limited or qualified by a special contract with the shipper, provided the limitation or qualification be just and reasonable and does not exempt from loss or responsibility due to negligence.
(2) At common law, where goods or commodities are shipped in the ordinary course of commercial traffic to be resold at a profit, the general rule is that in case of the loss or injury to the goods for which the carrier becomes liable, the measure of damages is the value of the goods at the point of destination.
In the case of St. Louis, I. M. & S. Ry. Co. v. Coolidge, 73 Ark. 112, we held that the general rule of damages for unreasonable delay in the transportation of goods is the difference between the market value of the goods at the time and place when and where they should have been delivered and their value when they were delivered, with interest.
In that case the court also held ¡that a contract limiting or restricting the common law rule as 'to the liability o'f a carrier for negligence in the shipment of goods is valid only when based on a consideration, usually a reduction in the rate of the freight charged. To the same effect see: Railway Company v. Cravens, 57 Ark. 112; St. Louis S. W. Ry. Co. v. Phoenix Cotton Oil Co., 88 Ark. 594; Southern Express Co. v. Hill, 81 Ark. 1.
(3) The record shows that there was only one tariff rate from Rogers, Arkansas, to Skiatook, Oklahoma, over the route the apples were shipped, and that the shipper paid that rate. Therefore, there was no reduction in the rate of freight charged as a consideration for restricting the liability of the carrier or for fixing the measure of damages other than that imposed by the common law. No other consideration appears in the bill of lading and under the decisions above cited, the common law liability of the carrier can only be limited or restricted where (there is a consideration for it. Otherwise, the carrier, without any consideration therefor, could impel the shipper to fix the measure of damages at the value which it should designate in the bill of lading.
Counsel for the defendant cites the cases of Kansas City So. Ry. Co. v. Mabry, 112 Ark. 110, 165 S. W. 278 (Arkansas), and Kansas City & Memphis Ry. Co. v. New York Central & Hudson River Rd. Co., 110 Ark. 612, but we do not think these cases have any application to the facts in the present case. It is true that in the Mabry case the opinion states that the measure of damages as stipulated in the bill of lading was 'the price of the articles shipped at the place of .shipment and does not state whether or not there was any consideration for such agreement. There, however, no contention was made that the measure of damages should be according to the price of the article at the place of delivery, and the court treated the contract as a valid contract between the parties because the parties themselves so treated it, and held that it was proper to consider the market price at Kansas City, Missouri, the place of destination, in order to determine the market price at Horatio, Arkansas, because there was no contention, from either side, that the Kansas City market was not the proper criterion in fixing .the market price at Horatio, transportation charges being deducted.
.So,, too, in the case of Kansas City & Memphis Ry. Co. v. New York Central & Hudson River Ry. Co., supra, neither party made any contention that the stipulation in the bill of lading that the loss or damage for which any carrier under the contract is liable shall be computed on the basis of the value of the property being the bona fide invoice price to the consignee was not the proper measure of damages. The parties themselves having treated the contract as valid, the court did not attempt to pass upon the validity of the contract, but treated it as valid as the parties themselves had treated it. It follows that the court did not err in refusing to give the instruction under consideration.
(4) It is also contended by counsel for the defendant that the court erred in permitting a witness for the plaintiff to state the market value of the apples at Pawhuska, but we do not agree with them in this contention. It was shown by the plaintiff that there was no market for the apples at the time they arrived at Sfeiatook and that Pawhuska was the nearest market for the apples. St. Louis S. W. Ry. Co. v. Kilberry, 83 Ark. 87.
(5) Finally, it is contended by counsel for the defendant that there is not sufficient evidence to warrant the verdict. The jury returned a verdict for the plaintiff in the sum of $181.75. The record shows that the apples were shipped in a refrigerator car, not iced, and that the hill of lading provided that tlhe vents should he kept open. The purpose of keeping the vents of the car open was that the air might circulate through it while the car was in motion. When the car arrived at Skiatook and the plaintiff was permitted to inspect the apples three of the vents were open and one of them was closed. It is true the testimony cf the defendant tends to show that the apples would have kept for a longer period of time than that during which the defendant delayed in delivering the apples to the plaintiff and that car loads of apples without ice usually keep longer than the period of delay in the present case. It must he remembered, however, that the testimony shows that the apples had begun to rot when they were delivered to the shipper and that when he unloaded them >at Pawhuska seventy-five bushels of them were so rotten as to be entirely worthless and that a good many more were rotten to such an extent that their value on the market was greatly reduced.
The plaintiff also testified that he sold the apples to the best advantage possible as soon as he could unload them, and that they sold for $126 'less than they cost him, •and that he paid the freight thereon in the sum of $67 Besides, the testimony shows that during the three days that the defendant held the car of apples at Skiatook and refused to deliver them to the plaintiff the price of apples at that time at Pawhuska was $1.50 per bushel and that it was only a few hours ’ run from Skiatook to Pawhuska. That after the apples were delivered to the shipper their price declined and that he sold what was left for the best price obtainable in their damaged condition. The plaintiff paid only 67% cents per bushel for the apples and his testimony in respect to the market price at Pawhuska and the price which he paid for the apples is undisputed. Therefore, the jury might well have placed his damage at a greater sum than $181.75.
We find no error in the record and the judgment will be affirmed.