Weiller v. Pennsylvania R.

Opinion, Mr. Justice Green: In the case of Elkins v. Transportation Co., 81* Pa. 315, no question of negligence, or of the carrier’s right to limit his liability for his acts of negligence, was raised, discussed, or decided, either in the court below or in this court. The reporter says the cause of action set out in the declaration was the loss of certain high wines delivered to defendant, but lost by negligence. This is the only reference to the subject of negligence to be found in the entire report of the case. The record shows that the case was not tried upon anjr theory of negligence, but exclusively upon the terms and interpretation of the contract, as contained in the bill of lading. No question was made upon the subject of the right of the carrier to limit his liability for loss occurring by his own negligence, and we are bound to assume that the facts of the case did not give rise to such a question. Nothing was said upon that subject, either in the argument of counsel, or in the charge of the court below, or in the opinion of this Court. It was for this reason that no reference was made to this case in the opinion of this Court in [314] the case of Grogan v. Express Co., 114 Pa. 523. The same reason is applicable now. It may be that the accident in the Elkins Case was not the result of any negligence of the carrier. Judging from the names of the counsel concerned, it is almost certain that if the facts had developed a case of negligence, and the question of the right of the carrier to limit his liability for acts of negligence, that question would have been promptly raised, discussed, and decided. In the present case, the question does arise under the conditions annexed to the bill of lading. Many enumerated causes of loss are expressly excepted, such as fire, riots, strikes, heating, freezing, leakage, rust, etc., and as to these the -right of the company to limit its liability must be affirmed in accordance with numerous decisions of this and other courts. But the final clause of the conditions stipulates that, “ when a valuation as agreed upon shall be named upon this shipping receipt, it is distinctly understood that such valuation shall cover loss or damage from any cause whatever.” As this necessarily includes loss arising from negligence, and as the testimony tended to establish a loss by negligence, the question of the efficacy of the clause under consideration to relieve the company from liability for negligence, beyond the agreed value, necessarily arises. Upon that subject we have so recently expressed ourselves in the case of Grogan v. Express Co., supra, that we think it unnecessary to repeat either the text or substance of the opinion there announced. So far as the question at issue is concerned, we can see no difference between that case and this. Judgment affirmed.