#### LUCILE COOPER v. NORFOLK SOUTHERN RAILROAD COMPANY et al.

(Filed 5 March, 1913.)

1. Carriers of Passengers — Tickets—Stipulations Limiting Liability —Intrastate Tickets — Void Stipulations.

Stipulations upon a railroad ticket, limiting the liability of the carrier in a specified sum “unless a greater value has been declared by the owner and excess charges paid thereon at the time of taking passage,” and similar provisions in a bill of lading for the transportation of freight, are held in this State to be void as an attempt on the part of the carrier to contract against its own negligence; and such stipulations are not enforcible on intrastate tickets or bills of lading.

2. S'ame — Interstate Tickets — Decisions of the United States Supreme Court.

The decisions of the Supreme Cburt of the United States are controlling as to the validity of stipulations on tickets of common carriers limiting their liability for baggage, and similar provisions on their bills of lading or receipts for the transportation of freight or express, only where the tickets and bills of lading are interstate.

AppeaE by defendant from Daniels, J., at September Term, 1912, of VaNCe.

Tbis action is to recover damages for the loss of a diamond, which the defendant admits was a part of the baggage of the plaintiff.

Plaintiff introduced testimony tending to show that she resided in Texas, and being on a visit at Henderson, N. C., she went with another or others from Henderson to Morehead City; that her trunk was packed and delivered, locked and in good condition, to the S. A. L. Railway, and checked by it through to Morehead late in the afternoon of 6 July, 1911; that her kinsman purchased a return ticket for her, which she signed when brought to her at a german about 9 p. m., 6 July; that her trunk contained her wearing apparel, a silver jewel case in which were a diamond star pendant and a belt buckle, which she was carrying for her own personal use, the diamond having been given to her by her father and cost $450, and owing to *401subsequent advances in diamonds was now worth' $500; that she left Henderson about 2 a. m., the 7th, and went on the first train leaving after purchase of her ticket, via S. A. L. to Raleigh, Southern to Goldsboro, and N.- and S. to Morehead, arriving there about 11 a. m. the 7th; that she gave her check to porter of Norfolk Southern Railroad just before arriving at Morehead, at his request, and the trunk was delivered to her room in the Atlantic Hotel, owned by defendant Norfolk and Southern Railroad, promptly after her arrival there, and when so delivered its lock was broken and hanging down. Upon examination she found the jewel case had been broken open and the breastpin and belt buckle gone, and that she at once made complaint to the authorities of the hotel and of all three of the railroads and demanded pay for her loss.

The stipulation in the ticket relied on to limit the liability of the defendant is as follows:

“5th. Baggage liability is limited to wearing apparel not' to exceed one hundred dollars ($100) in value for a whole ticket, and fifty dollars ($50) for a half ticket, unless a greater value has been declared by the owner and excess charges paid thereon at the time of taking passage.”

The following verdict was returned by the jury:

“Was the property of the plaintiff lost through the negligence of the Norfolk and Southern Railway Company? Answer: Yes.

“What amount of damages, if any, is plaintiff entitled to recover ? Answer: $450.”

Judgment was rendered thereon in favor of the plaintiff, and the defendant excepted and appealed.

A. G. & J. P. ZolUcoffer for plaintiff.

W. B. Rodman and T. T. Hicks for defendant.

AlleN, J.

The question presented by the appeal is as to the validity of the stipulation in the ticket limiting liability, and as the jury has found that the damage sustained was the result of negligence, and the transaction is intrastate, it is controlled by Mule Co. v. R. R., 160 N. C., 215.

*402Tbe cases of Express Co. v. Croninger, R. R. v. Latta, and R. R. v. Miller, relied on by tbe defendant, in wbieb opinions were filed by tbe Supreme Court of tbe United States on 6 January, 1913, decide tbat a stipulation in a bill of lading, similar to tbe one before us, is valid and limits tbe recovery, and these decisions would be controlling witb us if tbis was an interstate shipment* made upon a bill of lading, but as it is not, we follow them only in so far as they commend themselves to our judgment.

Tbe leading opinion was filed in tbe Croninger case, and Mr. Justice Lurton quotes witb approval from Solon’s case, 169 U. S., 133, discussing tbe effect of State legislation: “They are not, in themselves, regulations of interstate commerce, although they control in some degree tbe conduct and tbe liability of those engaged in such commerce. So long as Congress has not legislated upon tbe particular subject, they are rather to be regarded as legislation in aid of such commerce, and as a rightful exercise of tbe police power of tbe State 'to regulate tbe relative rights and duties of all persons and corporations within its limits”; and from Hughes v. R. R., 191 U. S. “While under these provisions it may be said tbat Congress has made it obligatory to provide proper facilities for interstate carriage of freight, and has prevented carriers from obstructing shipments on interstate lines, we look in vain for any regulation of tbe matter here in controversy. There is no sanction of agreements of tbis character limiting liability to stipulated valuations, and until Congress shall legislate upon it, is there any valid objection to tbe State enforcing its own regulations upon tbe subject, although it may to tbis extent indirectly affect interstate commerce contracts of carriage?”

In tbe Hughes case a judgment of tbe Supreme Court of Pennsylvania was affirmed which permitted tbe recovery of all damages caused by negligence, notwithstanding a clause in a bill of lading limiting tbe liability.

It is conceded in tbe opinion tbat these two cases establish two propositions:

(1) Tbat until Congress has legislated upon tbe particular subject, the State may regulate tbe relative rights and duties *403of all persons and corporations witbin its limits and may enforce its own policy, although’connected with an interstate shipment.

(2) That up to the time of the decision in the Hughes case there was no sanction in the legislation by Congress of agreements limiting liability to stipulated valuations.

The Court assumes that these two cases are decisive of the question that the States may enforce their policy as declared by statute or general law, and may award full damages for loss, the result of negligence, notwithstanding a stipulation limiting liability, unless the rule has been changed by act of Congress enacted subsequent to the decisions, and concludes that the Car-mack amendment of 1906 has this effect.

The Carmack amendment is as follows: “That any common carrier, railroad, or transportation company receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered, or over whose line or lines such property may pass; and no contract, receipt, rule or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: ProvidedI, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law. That the common carrier, railroad, or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transportation company on whose line the loss, damage, or injury shall have been sustained, the amount of such loss, damage, or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof.”

If the Supreme Court of the United States had not held otherwise, we would conclude that this amendment could not, by any rule of construction, have the effect of giving validity to a contract limiting liability for negligence, although contained in a bill of lading.

*404It purports to deal only with, the carrier receiving the goods —the initial carrier — and the common-law right of action against the connecting carrier is preserved by the proviso, “That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.”

And as to the initial carrier, the statute says in express terms that it “shall be liable” for “any loss, damage, or injury to such property,” and that “no contract, receipt, rule or regulation shall exempt such common carrier from the liability hereby imposed.”

“Any loss, damage, or injury” means all loss, damage, or injury, and the statute says the holder is entitled to recover this, notwithstanding a stipulation to the contrary in the bill of lading, and we do not see how such language can be construed to put life into a stipulation limiting liability and give it the effect of preventing a full recovery.

• ¥e are of opinion there is. no error.

No error.