Daily capital journal. (Salem, Oregon) 1903-1919, 1911-06-27

Wells V. Great Nor. Ry. Co., MultnO-
nah County.
R. L. Wells, respondent, v. Great
Northern Railway Company, appel
liant. In the circuit court for Multi
nomah county, The Hon. E. C..
Bronaugh, judge. On petition for re-
hearing. Affirmed March IA, 1911.
ia Pac. 80. Omar c. Spencer, for
appellant. John F. Logan, for re-
spondent. Per Curtain. Denied.
Per Curtain. In the petition for re-
hearing it is urged that the limita-
ton of the liability was based on a
special consideration, viz: a reduc-
ton in the price of the ticket. But
defendants counsel mistake the
terms of the stipulation of the ticket.
The reduction of the price of the
ticket is not made in consideration of
the limitation of the baggage. The
ticket is in form a first class ticket.
Whether it is sold as a first or sec
ond class ticket is to be indicated as
the n or the other by the place it
is punched on the first coupon. The
contract of the ticket contains seven
specifications. The third one states
that, if sold as a second class, the
purchaser is only entitled to second
class passage, and each of the other
six conditions of the ticket apply
alike to the holder of the ticket,
whether first or second class; and
the seventh condition, limiting the
liability Of the baggage, applies to
all holders of the ticket, regardless
of the price for which it was pur-
chased, and has no bearing on the
price Of the ticket other than it may
have been considered in fixing the
fare specified in the schedule filed
with the Interstate Commerce Com
mission. But it is held in the case
of Normile v. Oregon Nav. Co., Al
Or. 145: mo sort of consideration,
whether it is based upon a different
or lower tariff, or whatever it might
be, will therefore exempt the carrier,
in whole or in part, from liability at
tributable to his W negligence, and,
where such is the essential purpose
of the contract, it cannot be upheld"
Defendant also mistakes the effect
of the seventh clause of the contract,
limiting the liability of the COM
pany. 1t is not a stipulation of the
value of the goods shipped, but lin
its the liability to 500 in any case,
and is not an agreed value of the
goods shipped. "The baggage liabil-
1ty is limited to wearing apparel
only, not exceeding 500 in Value
and the passenger does not partici-
pate in fixing the amount. He is re-
quired to accept the stipulation on
the ticket or leave his baggage. This
Is conceded in the second brief filed
on this motion where it is ~contended
that the limitation is fixed by the
schedule of rates filed by the COM
pany with the l., c. C. and has the
force and effect of a law. Without
asserting to that statement, certainly
there was no agreement as to the
value of the goods shipped.
Mr., Justice Wolverton, in Normile
V. Oregon Nav. Co., makes the dis
tinction between an attempt by the
carrier to stipulate against liability
regardless of the value, and a stipu-
lation fixing the value of the freight
to be carried; and counsel for de-
PENDANT claim that this case comes
within the latter class, but in this he
is in error. 1t is said at page 1874,
1T is a sound and wholesome doc
trine, based upon consideration of
public policy and fair dealing, that
a common carrier will not be per-