DISSENTING OPINION.
Eolkes, J.I regret exceedingly my inability to concur with the majority of the Court in the opinion jugt rendered. To my mind a most dangerous and perplexing innovation is established, though clothed in the garb of harmless and well-settled propositions.
The objections to the opinion do not lie on the surface, hut lui’k in the application of those general principles to the particular facts of the case.
*444Let us analyze the decision, and ascertain what is exactly the point adjudged. It is this: That a railroad company, dealing with, a merchant who has been engaged for twenty, years as a shipper over its road, issues a bill of lading for a reduced rate, containing the familiar, if not now almost universal, clause of exemption from loss by fire. The shipper has been in the habit of shipping the same character of freight, on the same character of bill of lading, for six or nine years, containing the same exemption. Nearly three years after the goods were lost by fire, without negligence on the part of the company (so' far as any proof tends to show), the shipper institutes a suit before a Magistrate, in which it is stated upon the face of the warrant that it is for a “ debt due by failure to carry and deliver cotton according to contract.” A judgment is rendered for the plaintiff simply and alone because it was developed in the proof that the agent of the railroad company did not have on hand, at the time of shipment, any other form of bill of lading than the one used, and that no demand or request was made for any other form of bill of lading; but that if the shipper had requested a form of bill of lading with the common law liability .of the carrier unlimited, there would have been delay in the issuance of the same until such time as it would haye taken the agent to telegraph from Columbia, the point of shipment, to Nashville to the office of the head of the transportation department, when a reply would *445bave been instantly returned, authorizing the agent to issue the form of bill of lading requested, in which event the freight charge would have been $1.85 per bale instead of $1 per bale, the amount charged upon the bill of lading issued with the limited liability; that it is between forty and fifty, miles from Columbia to Nashville, and it does not appear that there was any immediate occasion for haste in the shipment of the cotton, nor that the time taken in telegraphing for instruction would have delayed shipment beyond the period that it would necessarily have been delayed in waiting for the next regular freight train.
Such a conclusion and such a holding is not sustained by the authorities, as I understand them. On the contrary, it appears to me to be in direct opposition to the principles settled in cases of the highest authority, which have been approved and announced by our own Court. It is stated to be placed, by the majority of the Court, upon the general principle that all contracts for the limitation of the common law liability of carriers must be fair and reasonable, a doctrine sound in its statement, but, as I respectfully submit, misconceived in its application to the ease at bar. The reasonableness per se of the rule which allows a stipulation for exemption from loss by fire, not occasioned by the negligence of the carrier, is abundantly established by the overwhelming weight of authority, and, jn the language of this Court in the case of Dillard Bros. v. Louisville and Nashville Railroad Company, *4462 Lea, 293, “ it subjects to less restraint the great interests of commerce, upon which so much of our modern civilization rests,” quoting in this case the language of the Supreme Court of the United States in Railroad Company v. Lockwood, 17 Wallace, 360, where it is said by Mr. Justice Bradley: “A modification of the strict rules of responsibility, exempting the carrier from liability from accidental losses, where it can be safely done, enables the carrying interest to reduce its rate of compensation, thus proportionally relieving the transportation of produce and merchandise from some of the burden with which it is loaded.” Again, “the natural presumption would be that the shipper was apprised of the contents of the receipt, and assented to its terms, and that a lower rate of freight, or something equivalent, will be a sufficient consideration for the stipulation; ” and, to quote from the language of Judge McFarland in the case of Owell v. Adams Express Company, “this would certainly be so where the terms of the contract were in accordance with the business of the company, to which the shipper had consented in previous transactions.”
The length to which the opinion of the majority goes makes extremely pertinent the language of this Court in the case of Dillard Bros. v. Louisville and Nashville Railroad Company, supra : “Some Courts, while yielding to the current of authority on the main point, have, at the same time, run counter to it, and involved themselves *447in useless refinements by refusing to recognize wbat Judge McFarland very properly calls the ‘ natural presumption ’ arising from the acceptance by the shipper of a bill of lading embodying the stipulations, and by requiring an uncertain quantum of evidence aliunde to establish a contract. It were better to adhere to the old law, and refuse to recognize the modern innovations than to resort to such niceties, which must lead to harrassing litigation, and render it difficult, if not impossible, for the profession to advise. It is the dictate of common sense that when a written instrument is received, in the execution of a contract, its contents are known and assented to, and a fortiori if there be nothing to raise a contrary presumption.”
. Row, I respectfully but earnestly submit that the opinion of the majority in this case is doing just exactly what was so strongly reprehended in the cases from which I have quoted, where the language of Judge McFarland in the Owell case was adopted as deploring the introduction of any modification requiring an “uncertain quantum of evidence, and resorting to such niceties as must lead to harrassing litigation, and render it difficult, if not impossible, for the profession to advise.”
Heretofore, when the shipper presented to his counsel a bill of lading containing the “fire clause,” further inquiry was made for the ascertainment as to whether or not there had been any negligence on the part of the company, and when told that there was no proof of negligence attainable, *448tbe lawyer could, with certainty, state that there was no liability.
Under the new order of things which this opinion establishes, as I understand it, the attorney would proceed to inquire whether the shipper had been tendered or offered any other form of bill of lading, and when told that no such offer had been made, he would then be told the company was. liable because he, the shipper, “ had not had an opportunity of exercising the option” of accepting a limited or unlimited liability bill of lading, and if the shipper should further inform his attorney that he had made no request for a different form of bill of lading, and that he had for years been shipping on identically the same form of bill- of lading, he would be told that that would not prevent a recovery for the value of the freight, for the reason that in the case of Louisville and Nashville Railroad Co. v. Gilbert, Parkes & Co. it had been decided that the railroad company would be liable unless it should, with the burden of proof upon it, affirmatively show that such opportunity had been tendered to the shipper and declined by him; and that it would make no difference if in twenty years as a shipper no such bill of lading had been asked for, where the company had failed to provide such a form, or authorized its agent to issue one if the shipper had asked for it. In other words, it is not necessary to show that the shipper wanted another form of bill of lading, and it is not sufficient to show that he knowingly *449accepted the bill of lading containing the “fire clause;” hut you must go further, and ascertain whether the agent of the railroad company would have issued him another form containing the common law liability if he had asked for it.
I very much fear that such a conclusion can but lead to unnecessary litigation, and great confusion and uncertainty in the administration of justice. It invites and renders necessary the performance of an idle ceremony, meaningless and deceptive, as a preliminary to the obtaining of the benefit by the common carriers of the country of the privilege that is abundantly and universally admitted to exist. The carrier must have on hand, and tender, a form of bill of lading which the previous dealings with the shipper has informed the carrier is not wanted.
The plaintiff shows by his own testimony that he knew all the facts; that for twenty years he had been a shipper of cotton over this road.
The opinion of the majority'is not as full as it might be in its statement of the testimony of the plaintiff, Parkes, in this: That after stating that the Merchants’ Exchange in Nashville had protested against the introduction of the “fire clause” in the • defendant’s form of bill of lading, and had given notice, of that protest, it fails to show that this was after the loss of these goods by fire, or at least that the language of the witness is susceptible of this interpretation.
The language of this plaintiff’ is as follows: “As *450a member of tbe Merchants’ Exchange I know that the Exchange held a meeting and protested against the insertion of this fire clause in this bill of lading, and a copy of this protest was served against the railroad company after the loss of these goods by fire I went to Louisville to see Mr. Knott who is the general traffic manager of this railroad. I told him that myself and other merchants of Nashville were anxious that he should make two rates for the shipment of cotton, one of which should exclude the fire clause.”
There being no punctuation of the above in the transcript, it is difficult to say whether the language, “ after the loss of these goods by fire,” applied to the time of the protest or to the time of his going to Louisville' to see Mr. Knott. But it is immaterial, for the reason that if it applies to the time of the protest, it shows affirmatively that he had knowledge of the fire clause, and that, with that knowledge, purposely accepted a bill of lading giving him the benefit of a reduced tariff, without calling fo.r the common law liability; and if it applies to the time of his going to Louisville, of course it was incompetent, and should not have been admitted in evidence.
That the “fire clause” is not unfavorably considered is shown by the case of York Company v. Central Railroad, 3 Wallace, 107. In that case the plaintiff’s positions were (1) that Trout & Co., agents at Memphis, who shipped the cotton and received the bill of lading, had no authority to *451consent to suck a condition; (2) tkat it did not appear tkat any consideration existed for suck limited liability in tke reduced . rate of fare or otherwise.
Let us see bow this tribunal answered these questions. It said: “ Tke first of these positions is answered by tke fact tkat it nowhere appears tkat tke agents disclosed their agency when contracting for tke transportation of tke cotton. So far as tke defendant could see, they were themselves tke owners.” Tke second proposition is answered by the fact tkat there is no evidence tkat a consideration was not given for tke stipulation. Tke company probably had rates of charge proportioned to tke risks they assume from tke nature of tke goods carried, and the exception of losses by fire must necessarily have affected tke compensation demanded. Be this as it may, the consideration expressed was sufficient to support tke entire contract made.” This case has in terms been approved by this Court in Owell v. Adams Express Co., supra.
If tke spirit of this decision is followed, there is no trouble in reaching a fair and reasonable result in tke case at bar. It would say tkat Embry did not disclose kis principals. He confessedly knew of tke fact tkat tke company had two' rates — one with and one without tke “ fire clause;” for he had, in tke- language of tke witness, “frequently talked wftk Embry, tke plaintiffs’ agent, about the two rates before this shipment”— *452and that his knowledge and acceptance was the knowledge and acceptance of the plaintiff; second, it would say that- the proof shows that if dissatisfaction had been expressed with the $1 rate, accompanied with the limited liability, the shipper could have obtained the $1.85 rate if he had waited for a few moments for a telegram from the agent at Nashville, and that, in the absence of proof that the necessity for the shipment of the cotton was so pressing that a delay would have been injurious, such delay would not be wrong or negligent on the part of the carrier, especially where it does not appear that there would have been any delay in the shipment; for the company was under no obligation to send this cotton by a special lightning express, but had the right to hold it until the next regular freight-train coming to Nashville. It would further say that a limitation in favor of the company, and with a reduced rate, will not deprive the company of its benefit when the shipper has bad the advantage of such reduced rate, simply because it appears in a suit brought nearly three years afterward that the company did not have on hand a form of common law bill of lading. Moreover, it. would have been held that, having gotten the benefit of the lower rate for six or nine years, it was too late now to say that he was not bound because he was not offered any other rate.
The shipper is charged with knowledge of the law that authorized him to demand a common law *453liability of the carrier; and his acceptance in silence of the bill of lading with the “ fire clause ” is a waiver of such demand or right, in the absence of fraud, where it appears that there was a difference in the freight charges for a limited and for an unlimited liability. Rot having spoken when it was his duty to have done so, the law now enjoins silence, when he has for years pocketed the fruits of his silence heretofore.
The limitation of the carrier’s liability as an insurer against fire is not to be confused with limitations that are not favored, and with efforts to avoid the consequences of the negligence of the carrier or his agents.
When, therefore, we have to deal with a limitation against loss by fire, without fault or negligence on the part of the carrier, there is no reason why the same general principles applicable to knowledge and estoppel between individuals other than carriers should not apply. For instance, the presumption of acquiescence is made where the shipper receives without complaint a bill of lading containing this limitation; and he is estopped to say that he was ignorant of the contents of the bill of lading, as we have already seen is fully established in this State in Railroad v. Brumly, 5 Lea, 401, and Dillard Bros. v. Railroad, 2 Lea. But suppose our predecessors had looked at the cases cited, and decided them in the spirit and on the logic of the case at bar, such presumption and estoppel would have been refused recognition. *454In tbe language of the opinion of the majority here, the inquiry there would have been, Is the limitation “fair and reasonable?” to be determined upon the facts of each case as it arises, “with the burden of proof on the carrier to show it fair and reasonable in each case.” And it would have been held unfair and unreasonable to bind the shipper to a loss that, in his ignorance of the terms of the bill of lading, he had never assented to.
But we have only to turn to approved textbooks to see that this fire limitation is favored, and that knowledge does estop in a contract with a common carrier as with other people.
Mr. Hutchison, in his excellent work on Carriers, says, speaking of knowledge: “ The theory upon which they all stand is that, if a party, knowing his published terms, employs the carrier without objection, a contract according to those terms is implied between the employed and employer.”
Again this author says: “ Every man of ordinary intelligence knows that no individual or company engaged in the business of carrying to distant places now undertakes to carry his goods subject to the old common law liability of the carrier. He knows, moreover, that bills of lading are constantly given, not only as the evidence of the receipt of the goods, but as an express and direct notice that they will be carried on certain terms. Knowing this, he cannot be willfully blind, and *455plead ignorance when, it was his duty to know; and knowing in such cases is assenting. If it was his 'intention to hold the carrier to his common law liability, he should have said so, and have either declined to employ him or sued him for his refusal, after tendering a reasonable sum for his services or risk.” And he says this is in accordance- with the English and American decisions, and adds: “ Nor is there any thing unreasonable in this.” Hutch, on Car., Secs. 238-240.
How, if this be true of a shipper making his first shipment, how much more emphatic is it by way of estoppel against a shipper of twenty years with the same company, where the last six or nine years’ business was upon the identical bill of lading sued on here.
Does not his previous acquiescence and acceptance of this particular bill of lading, without complaint or demand, amount to a waiver of the offer or tender of another form ? It would seem so. And if the offer or tender be waived, then it must be that the company need not, as to such shipper certainly, have had on hand, or been prepared to issue instanter, a common law bill of lading, that the shipper’s long course of dealing led the carrier to believe would not be called for.
Again, at Section 241 of Hutchison on Carriers, it is said: “ Accordingly, when the owner of the goods accepts such a [bill of lading or receipt] he is conclusively presumed, in the absence of fraud *456and imposition, to have assented to its terms and conditions.”
"We have, at the present term, held what had been heretofore approved by this Court: That an insurance company would be conclusively adjudged to have waived a written stipulation in its policy concerning the void character of insurance upon property on leased ground, where that fact is not written on the policy, because it would be a fraud upon the assured to allow the insurance company to hold the premium on a policy known by it to have been void at the time of its issuance.
Now, we are unable to see why the same principle would not preclude a party who has for years accepted the benefit of a reduced rate of freight, in consideration of a limited liability of the carrier, from defeating that stipulation by saying, after the loss, that “You did not give me an opportunity to elect which form of bill of lading I would take.” The shipper, having gotten the benefit of the reduced rate, should not be heard to say the contract was void, and so known to him at the time. If the one proposition can be accepted as sound, I see no occasion for refusing to apply the same principle to this case. They both relate to insurance against fire only. It will not do to say. that the public character and the public duties of the carrier require that a different rule should be applied to it than would be applied in the case of the insurance company; for in the case at bar it concerns alone the benefit or ad*457vantage that the particular shipper has already derived by his silence, and gives the company the benefit of a clause which has been repeatedly said to be reasonable. ETor does it suffice to say that this Court has held, in Marr v. Telegraph Company, 85 Tenn., that it is not necessary for a party dealing with one of these public corporations to speak. In the Marr case there were four alternatives presented, all of which were held to be “unreasonable and oppressive,” and the effort was to escape liability for a loss occasioned by the negligence of the telegraph company, while the exemption of the carrier from the liability of an insurer, for a sufficient consideration, is not unreasonable nor unfavored. On the contrary, as we have seen and have said, adopting the language of the Supreme Court of the United States in York v. Central Railroad Company, 3 Wallace, that there is “ no good reason or principle why parties should not 'be permitted to contract for a limited responsibility. The transaction concerns them only; it involves simply rights of property, and the public can have no interest in requiring the responsibility of insurance to accompany the service of transportation, in the face of a special agreement for its relinquishment.”
But 'the opinion of the majority attempts to make out a case, and seems to -take it for granted that it has made out a case, where, as a matter of fact, there was no consideration for such limited liability, because, forsooth, it is said *458the rate of $1 on the hill of lading with the “ fire clause ” was the same as the rate six or nine years before on the hill of lading without such “fire clause.”
The fact that the rate to-day on the bill of lading with the fire limitation is the same as it was years ago loithout such limitation, is no proof that the rate of to-day is not fixed in consequence of such limited liability, even in the absence of all other proof on the subject.
Before any probative effect can be given this fact or circumstance to overcome the presumption of a consideration, you have to negative the idea and destroy the right of the carrier to change its tariff of charges, from time to time, to meet competition and other exigencies. I say, in the absence of proof (except that relied on by the majority as showing no consideration, to wit: $1 before and $1 after the adoption of the “fire clause”), it does not follow that at the time of the issuance of the particular bill of lading sued on here there was not •another and a higher rate for the full common law liability. The consideration need not be great, because, in the language of the books, some consideration, however slight, is sufficient, and the consideration will be presumed from the manifest and absolutely necessary difference of responsibility. But we are not left to fall back on these well-settled principles, nor to indulge in presumption; for the proof is clear and uncontradicted that at the time of the issuance of this bill of lading the *459rate for cotton, with the common law liability, was $1.85. This positive and uncontroverted proof surely cannot be overcome by a presumption predicated upon the mere fact that six or nine years before this time the company carried the common law liability at $1, the same price that it now charges for the limited liability; nor can this proof be affected one way or the other by the fact that the company had no printed bill of lading on hand, and had not instructed its agent in relation thereto.
"While, in the opinion of the majority, this fact may make the company liable as not giving the shipper opportunity to get something he did not ask for and did not want, it cannot disprove the uncontradicted fact that there were two rates — one of which could be obtained instanter at $1 with the limitation, and the other at $1.85 without any limitation, obtainable by waiting until the agent could telegraph to the general freight department at Nashville.
It must be noticed that there was no occasion to telegraph to Nashville to ascertain what the common law liability rate was. This was known to the agent, and it is positively testified to by him that it was $1.85 per bale; and this was. also known to the plaintiffs, through their agent, Mr. Embry. The telegram was therefore not necessary to ascertain the rate, but merely to get instructions as to the issuing of such a form.
It does seem that there was no more necessity *460for the company to keep on hand a form of bill of lading that was never called for than there would be for a merchant to keep on hand goods for which there is no demand. Indeed, it may be safe to say that the company would have a right to make a rule, that where it was to be held liable as an insurer against loss by fire for such combustible material as cotton, notice should be given the home office by the local agent, so that special provision might be made to protect itself by obtaining re-insurance, provided that it did not cause such delay as would incommode or injure the shipper. If the shipper wanted insurance there were two avenues open to him to obtain it — one by paying the company the increased rate of freight, the other by insuring in a regular insurance company; and it is a matter of common information that insurance can be obtained from an insurance company generally for a smaller amount than is usually charged by the carriers for the insurance liability.
Certainly, it seems to me, with due deference to my learned associates, that every principle of justice and fairness revolts at the idea of allowing the shipper to have insurance where he has knowingly refused to apply and pay for it, either to the transportation company or to the insurance company. To hold the transportation company now liable as an insurer, is to do so upon ex post facto inquiry, aliunde the contract, and in violation of what I regard as elementary principles of law and morals.
*461If the opinion of the majority concerned alone the disposition of the case in hand, I would have been content with the mere announcement of my non-concurrence; but where the spirit and . tendency of the decision appears to me hurtful, I deem it my duty to point out, even at the expense of weariness to myself and the bar, the dangers to which it may lead.
The spirit and tendency to which I refer is to be found in the strictness with which the common law liability of the carrier is sought to be enforced, and the severe conditions imposed as necessary to obtaining the benefit of a ,contract for limited liability.
Indeed, the difference between myself and the majority may be said to be, that in my opinion a contract for exemption from loss by fire not resulting from the negligence of the carrier, should be construed liberally and fairly, in accordance with the intention of the parties, in the absence of fraud or imposition, while the majority opinion applies a degree of strictness in considering such contract which, in many cases in practice, would amount to prohibition. It seems to me that every exemption or condition is, in the opinion of the majority, placed upon the same footing and construed with equal strictness, without regard to the policy which should govern in the treatment of the sundry exemptions.
This is happily illustrated by the quotation with which the majority opinion closes, as follows: “The *462carrier and Ms customer do not stand on a footing of equality. The latter is only one individual of a million. He cannot afford to higgle, or stand out and seek redress in the Courts. His business will not admit of such a course. He prefers rather to accept any bill of lading, or sign any paper the carrier presents; often, indeed, without knowing what the one or the other contains. In most cases he has no . alternative but to do this or abandon his business.”
Such language may be well enough in the case in which it was used, when applied, as was done there, to a case where the carrier was seeking to obtain the benefit of a contract exempting it from a claim for damages for a personal injury to a passenger, occasioned by the carrier’s own negligence; but the same language, when applied to a contract exemption for loss by fire, without negligence, becomes misleading, and tends, though unintentionally, to inflame the mind of the trier, whether Judge or jury. The quotation, I respectfully suggest, is as inapplicable to the facts of the case at bar as it is to the law.
To my mind the case in hand, instead of being viewed in the light of the quotation above, should have been decided in the light, of the language of the same Judge in the same case, where, speaking of such exemption as is the subject of decision in the case at bai’, he says: “A modification of the strict rules of responsibility, exempting the carrier from liability for accidental losses, where it can be *463safely done, enables the carrying interest to rednce its rate of compensation, tbus proportionally relieving tbe transportation of produce and -merchandise from some of the burdens with which it is loaded.” Which, as we have seen, has been approved by our own Court.
For the reasons stated; I am constrained to dissent from the views of the majority, both as to the conclusion reached and the reasoning upon which such conclusion rests. This I do with great respect for my esteemed associates, whose views are the result of a careful consideration of the case.
From my point of view the judgment of the Circuit Court should be reversed and judgment rendered here for the defendant.