(After stating the foregoing facts.)
This was a suit against the Southern Express Company to recover damages for delay in delivering goods shipped from New York to Georgia, the Adams Express Company being the initial carrier, and issuing the receipt. The goods readied the point of destination, but there vwas delay in delivering them. It appears from the record, that, during the charge, the court inquired of counsel for defendant if he admitted liability to the extent of fifty dollars, and counsel replied that he did, and tendered that amount and the goods, which were in the defendant’s hands. The court thereupon charged on the basis that some liability was admitted. The question was thus one as to the effect of the stipulation in the express receipt, and as to the measure of damages. It did not appear at what point or in what condition the goods were delivered te the defendant, nor was anjr question made as to that, the defendant relying on-the terms of the receipt.
1-3. It is declared by the Civil Code, § 2276, that “A common carrier can not limit his legal liability by any notice given, either by publication or by entry on receipts given or tickets sold. He may make an express contract and will then be governed thereby.” It is well settled tha,t a mere inclusion by a common carrier, in a bill of lading or receipt for goods, of a provision for limiting his liability, and the reception thereof by the shipper, will not servo in this State to create an express contract within the meaning of the section of the code quoted. In some States it has been ruled that the shipper’s acceptance of a receipt which contains a limitation of liability will suffice to show an assent to its terms and constitute an agreement, whether he reads the receipt or not. But such is not the law in Georgia. Southern Express Company v. Newby, 36 Ga. 635 (91 Am. D. 783); Southern Express Co. v. Barnes, 36 Ga. 532. In one or two of the cases such expressions were used as that the carrier must make an express contract, independent of his receipt, or outside of his receipt. This negatived the idea that the inclusion of limitations on liability in the receipt delivered to the shipper and his mere acceptance of it constituted an express contract; but it did not hold that the parties might not use the terms set out in the receipt as a basis on which an express contract could be made. Thus where a special contract was incorporated in a bill of lading, which was signed by both parties, upon a consideration this
It will be noted that by the terms of the receipt the express company does not even concede that the valuation is fifty dollars, or fix that amount as the value, but declares that, in the absence of a valuation, it shall not be liable “for more than fifty dollars if no value is stated herein.” Whether it will admit liability to that extent or claim that the goods were worth less is left open. At the bottom of the receipt is also an entry stating: “Liability limited to $50 unless a greater value is declared.” In the place prepared for inserting an actual valuation are the words “Valued at $-.” Taking these portions of the prepared form of receipt -together, it seems quite clear that a place was left blank for inserting-an actual valuation, but this was not used; and instead of relying on an
A common carrier can not, 'even by express contract, limit its liability for damages arising from negligence of its agents. The section of the code quoted at the beginning of this opinion has not been construed as intending to authorize such a limitation. Central of Georgia Ry. Co. v. Hall, 124 Ga. 322 (52 S. E. 679, 110 Am. St. R. 170, 4 L. R. A. (N. S.) 898). It was there said that “The requirement of diligence on the part of a common carrier is one involving public policy, and it would be contrary to such policy to allow him to relieve himself from his duty in this regard by contract. A common carrier can not, therefore, by special contract exempt himself from liability for loss of goods intrusted to him, where the loss arises from his own negligence.” A number of previous decisions of this court were cited in support of this statement, including Georgia Railroad Co. v. Gann & Reaves, 68 Ga. 350, 353, and Georgia Railroad & Banking Co. v. Keener, 93 Ga., 808 (21 S. E. 287, 44 Am. St. R. 197). In the latter case the dis
In the Kensington, 183 U. S. 263, 268 (22 Sup. Ct. 102, 46 L. ed. 190), involving a transportation of baggage from Antwerp to New York, with stipulations in the passenger’s ticket for limitation of liability for damages arising from negligence, which would have been valid by the Belgian law, Mr. Justice White said: ' “It is settled in the courts of the United States that exemptions limiting carriers from responsibility for the negligence of themselves or their servants are both unjust and unreasonable, and will be deemed as wanting in the element of voluntary assent; and, besides, that such conditions are in conflict with public policy.” The doctrine of public policy as applicable to such a case was fully discussed (pp. 269 et seq.). See also Railroad Co. v. Lockwood, 84 U. S. 357 (21 L. ed. 627); Grogan & Merz v. Adams Express Co., 114 Pa. 523 (7 Atl. 134, 60 Am. R. 360); Adams Express Co. v. Stettaners, 61 Ill. 184 (14 Am. R. 57); 5 Am. & Eng. Enc. Law (2d ed.), 308, 333.
It has been held in Pennsylvania, that a carrier has a right to make inquiry, and to have a true answer as to the nature and character of'goods, but that if he makes no inquiry and no artifice is used to mislead him, he is responsible for any loss, however great the value may be; and the duty to state the nature and value of property is not on the shipper, in the absence of inquiiy, and in the absence of fraud or artifice on his part. Camden & Amboy R. Co. v. Baldauf, 16 Pa. 67 (55 Am. D. 481); Relf v. Rapp, 3 Watts & S. 21, 26 (37 Am. D. 528); Story on Bailments, 567. Our own code (Civil Code, § 2290) declares that “The carrier may require the nature and value of the goods delivered to him to be made known, and any fraudulent acts, sayings, or concealment by his customers will.release him from liability.” This contemplates a requirement by the carrier, not a general duty on the part of the shipper to disclose, without such requirement. In the Keener case, supra, weight seems to have been given to the fact that no inquiry was made by the carrier.
4, 5. It was contended that if the insertion in the receipt of the express company of the clause in regard to limiting the value in the absence of actual valuation did not amount to an express contract
In Alabama Great Southern R. Co. v. Little, 71 Ala. 611, it was-said that a common carrier may, by special contract, limit or qualify his liability as an insurer, or his common-law liability for losses occurring by unavoidable accident; “but public policy and every consideration of right and justice forbid that a common carrier should be allowed to stipulate for exemption from, or limitation of, his liability for losses or injuries occurring through the want of his own skill or diligence, or that of the servants or agents he may employ, or through his or their willful default or tort.” This was said in a ease where a shipment was made from Cincinnati, Ohio, to a point in Alabamá, and where the bill of lading was issued by the initial carrier. Such was also the shipment involved in Louisville & Nashville R. Co. v. McGuire & Co., 79 Ala. 395. In Union Locomotive and Express Co. v. Erie Ry. Co., 37 N. J. L. 23, 25, it was said: “A contract valid elsewhere will not be enforced if it is condemned by positive law, or is inconsistent with the public policy of the country, the aid of whose tribunals is invoked for the purpose of giving it effect.” See also Thomson v. Taylor, 65 N. J. L. 107 (46 Atl. 567). In Southern Express Co. v. Rothenberg, 87 Miss. 656 (40 So. 65, 112 Am. St. R. 466), goods were shipped from New York to Mississippi, and were destroyed in a wreck. Suit was brought in the latter State. It was held that a limitation similar to that now involved was contrary to public policy and would not be enforced. The ground for holding that even an express contract seeking to relieve a common carrier from liability for negligence will not be enforced being that it is contrary to public policy, comity, which is at last the foundation of the doctrine of enforcing thelex loci contractus, will not compel the courts of this State to violate its public policy and to enforce a contract which would have-such effect, as to property to be brought into this State by a common carrier and here, delivered, certainly not as to injury resulting from negligence here committed, merely because the contract was made beyond its borders. A contract of carriage, as to ship
We are aware of the fact that there are rulings contrary to .that here made. But in some of the decisions the question of public policy was apparently not raised or considered. The Supreme Court of Massachusetts differs directly with the Supreme Court of the United States on the subject of public policy, and holds that a contract of a common carrier, valid at the lex loci contractus, will be enforced in Massachusetts, where the carriage terminates, although contrary to the public policy of that State. Fonseca v. Cunard Steamship Co., 153 Mass. 553 (27 N. E. 665, 12 L. R. A. 340, 25 Am. St. R. 660). The same court has, however, held that whether the receipt, by the shipper, of a contract signed only by the carrier will show an assent by the shipper to its terms is to be de-{ termined by the lex fori, — a ruling which can not be reconciled with the current of authority. Hoadley v. Northern Transportation Co., 115 Mass. 304 (15 Am. R. 106). In Ohio a contract made in another State in regard to a shipment into that State was held not to relieve the carrier from the result of its negligence, although it would have had that effect in the State where it was made. The decision was, perhaps somewhat inaccurately, placed upon the ground that the law of the place of delivery generally would be applied, rather than on the distinct ground that the contract was contrary to public policy. The. question whether the inclusion of certain terms in a bill of lading or express receipt and its delivery to the shipper is sufficient to constitute a contract between him and the carrier is one thing; the question whether, if it be conceded that according to the lex loci contractus this is sufficient to make a contract, it is violative in all or some of its terms of the public policy of the State where the delivery is to be made, and the contract is sought to be enforced, is quite another thing. Apparently in New York the extent of the liability of a common carrier, though arising from negligence, may be limited. Belger v. Dinsmore, 51 N. Y. 166 (10 Am. R. 575); Magnin v. Dinsmore, 62 N. Y. 38 (20 Am. R. 442); Kirkland v. Dinsmore, 62 N. Y. 171 (20 Am. R. 475). But contrast Curtis v. Delaware etc. R. Co., 74 N. Y. 116 (30 Am.
The distinction between contracts relieving a common carrier from liability not arising from negligence, and those which seek to relieve it in whole or in part from liability arising from negligence, has been recognized in this State. In Western & Atlantic R. Co. v. Exposition Cotton Mills, 81 Ca. 522 (7 S. E. 916, 2 L. R. A. 102), machinery was shipped from Massachusetts to a point in this State. In the bill of lading it was stipulated that the railroad company should not be held liable for “any loss or damage arising from the following causes, viz., fire from any cause, on land or water, . . explosions, accidents to boilers and machinery, . . insufficiency of package in strength or i otherwise, rust, dampness,” etc. It appeared that, while this stipulation in the bill of lading would not have constituted an express contract with the common carrier, under the Georgia law, it was a good contract in Massachusetts. In so far as it sought to relieve the carrier from liability other than that arising from its own negligence, it was held enforcible in Georgia. But Simmons, J., said: “Of course none of the carriers could exempt themselves from liability arising from their own negligence. Although the goods were shipped at the owner’s risk, and the carriers were not to be liable for damages caused by weather or rust, still if the damage was caused by the weather or rust, occasioned by the negligence of the carrier or by unreasonable delay upon the road, the carrier guilty of, the negligence would be liable. . . The carrier should be held liable- only for his own negligence, or for the damage caused by its unreasonable detention on the road.”
6. It was urged that the shipper was guilty of a fraud upon the carrier. But we fail to see how the mere acceptance of a receipt containing printed words by which the carrier sought to limit its liability in the absence of valuation would constitute fraud on the part of the person to whom it was delivered. In some jurisdictions it would be held to create a contract. But we have found no case in which it has been held to constitute a fraud by the shipper. In the cases in this State where the shipper was held to be guilty of fraud, there was either some direct misrepresentation made, or artifice employed, or something done which was calculated to mislead the carrier or throw him or his agent off his guard as to the nature or character and value of the property.
7. The court was requested to charge, that the contract of shipment was made in New York, and ought to be construed as to its validity and effect by the laws of that State; that the Georgia courts were bound, in construing contracts made in another State, by the construction placed upon the common law even, by the highest courts in that State, as shown by its published reports; and that, as the contract under consideration limited the amount of liability of the carrier to fifty dollars, as shown in the receipt sued on, this limitation was binding upon the shipper. It does ’ not appear from the brief of evidence that it was proved what was the law of New York. Probably we might have dismissed this contention for the reason that the presiding judge is not required to
8. It was contended in the brief of counsel for plaintiff in error that the interstate-commerce law of the United States had the effect of abrogating the ruling that limitations of liability stated in a receipt given by an exjoress company for an interstate shipment would not relieve it from full liability resulting from negligence. We do not find that this point was distinctly made or passed on by the trial court. At any rate, it seems to be without merit. Chicago, Milwaukee & St. Paul Ry. Co. v. Solan, 169 U. S. 133 (18 Sup. Ct. 289, 42 L. ed. 688); Pennsylvania R. Co. v. Hughes, 191 U. S. 477 (24 Sup. Ct. 132, 48 L. ed. 268); In the matter of Released Rates, 13 I. C. C. 550.
9-11. The presiding judge admitted evidence as to the profit which the plaintiff would have made if he had received the goods and sold them. He also charged the jury, in reference to the-measure of damages, as follows: “If you believe that the goods remained in the office of the Southern Express Company here about thre'e months by reason of the negligence of the Southern Express Company to notify .the consignee and deliver these goods to him, they are liable to him for the market value of the goods at the time they ought to have been delivered in Thomasville, if the failure was the result of their, negligence in not making this delivery.” Pie refused to charge a "different measure of damages. These rulings were erroneous. There was no evidence of any special damages, such as expenses incurred. The case rested on the general rule as. to damages for delay by a common carrier in delivering goods.The general rule is that the measure of damages for unreasonable delay by a common carrier in the delivery of goods shipped is the difference between their market value when they should have been delivered and their market value when they were delivered, with interest from the former date, less the freight, if unpaid. East Tennessee, Virginia & Georgia Ry. Co. v. Johnson & Shahan, 85 Ga. 497 (11 S. E. 809); Goodin v. Southern Ry. Co., 125 Ga. 630 (54 S. E. 720, 6 L. R. A. (N. S.) 1054); 5 Am. & Eng. Enc. L.