EIGHTEENTH ANNUAL YEAR BOOK — PART VII 415 



There is this to be remembered, that there has never been an absolute 

 liability as to live stock, for the reason that the absolute liability of the 

 carrier has always been predicated upon complete control. A carrier has 

 never had complete control of passengers, and could never be presumed 

 to have complete control of live stock. There is always a certain volition 

 in animals, and sometimes they will do themselves damage, or there 

 may be damage done for which the carrier can not possibly be held re- 

 sponsible, and can not be charged with negligence. So the question that 

 has always arisen in connection with live stock, tho not to the same 

 e.xtent as with passengers, has been whether the carrier has been negli- 

 gent. Of course in the case of loss by unreasonable delay there is always 

 that presumption. 



There has always been freedom of contract under the common law', 

 and the carrier, as you know, was in the habit of printing in his contracts 

 that you would have to give notice within a certain time, otherwise he 

 was not liable; and you might limit his liability under certain circum- 

 stances by placing a certain valuation upon the live stock or whatever the 

 goods were. This has been carried to a considerable extent in favor of the 

 carrier, and the courts went definitely on record that those contracts were 

 valid and enforcible practically without reference to their equity. It 

 would almost seem that the courts were unable to distinguish between a 

 marrs entering into a contract and being forced into it. H was decided 

 by the supreme court that those contracts with limitation of liability upon 

 the valuation of the stock were enforcible, valid contracts, and, further 

 than that, that any limitation as to the time of giving notice was valid. 

 In some instances a man had. contracted to give notice before he got his 

 stock off the cars, or within a few hours after, before they were mingled 

 with other stock. 



Congress has made several efforts in the form of legislative enactment 

 to cure this condition in the interest of the shipper. The most"*recent 

 of these is generally known as the Cummins amendment to the Carmack 

 act. While the statute is too recent To give the supreme court a trial at it 

 to see wiaat it means, I think there is very little question' but it covers 

 some of these questions that we have had up. As to limitation of liability, 

 there is no question as to ordinary live stock; that is made an exception. 

 As to other goods, where there are two charges filed and approved by the 

 Interstate Commerce Commission' there can be a valuation set upon them, 

 and if there is any consideration of a lower freight rate which has been 

 approved by the commission, there is no question but that valuation would 

 stick, and that would be the measure of damages in any event. In other 

 words, if it were valued at $100 for the lower rate, and the actual value 

 was $1,000, you would be limited in your recovery to $100. But there is 

 no such contract for limitation of the value or releasing as to ordinary 

 live stock. 



There is a provision in the Cummins amendment to the act to regulate 

 commerce wliich disposes of what is ordinary live stock as nearly as 

 can be. I don't think I can do better than to give you the language: 



"The term "ordinary live stock' shall include all cattle, swine, sheep, 

 goats, horses and mules, except such as. are chiefly valuable for breeding, 

 racing, show purposes, or other special uses." 



