made a special acecptance of the box, he was liable for the loss of the money. Sec. 329. (§ 212.) Same subject. But in a similar case, in which the attempt was made to hold the carrier liable for money delivered to him concealed in a bag filled with hay, although he had given notice that he would not be liable for money or valuables unless notice was given that they were contained in the package delivered to him to be carried, and with the payment of a higher price for the carriage accordingly, the object of the owner of the money being of course to impose upon and cheat the carrier, and by practicing a deceit to have the money carried without paying the price which he was entitled to, Lord Mansfield could not agree with the ruling of Rolle, and held that the plaintiff could not recover because of the fraud.1 And this opinion has been followed in numerous cases since that time both in this country and in England.2 Sec. 330. (§ 213.) Same subject-Neglect or failure to disclose contents or value.-Fraud may be as effectually practiced upon the carrier by silence as by a positive and express misrepresentation. A neglect or failure to disclose the real value of a package and the nature of its contents, if there be anything in its form, dimensions or other outward appearance which is calculated to throw the carrier off his guard, whether so designed or not, will be conduct amounting to a fraud upon him. The intention to impose upon him is not material. It is enough if such is the practical effect of the conduct of the shipper, as if a box or package, whether designedly or not, is so disguised as to cause it to resemble such a box or package as usually contains articles of little or no value, whereby the carrier is misled. For by such deception the carrier is thrown off his guard, and 1. Gibbon v. Paynton, 4 Burr. ratt, 1 East, 604; Southern Ex. 2298. Co. v. Everett, 37 Ga. 688; The Ionic, 5 Blatch. 538; Phillips v. Earle, 8 Pick. 182; The St. Cuthbert, 97 Fed. 340. 2. Batson v. Donovan, 4 B. & Ald. 21; Crouch . Railway Co., 14 C. B. 255; Relf v. Rapp, 3 Watts & S. 21; Edwards v. Sher neglects to give to the package the care and attention which he would have given it had he known its actual value.3 Sec. 331. (§ 214.) Same subject-Extent of carrier's liability. And if, under such circumstances, money or other valuables, concealed in a package, be lost by his negligence or carelessness, it would be unjust to charge him with their full value, because such concealment would be a fraud upon him as respects his compensation for the carriage, and a deception as to the degree of care which the package required and with which he would have guarded it had he been told the truth; as where money or jewels or other articles of great value are put into a valise or box which is generally used to contain things of comparatively small value, and delivery made to the carrier without informing him of the contents, there being nothing in the appearance of the valise or box to indicate or to apprise the carrier that it was of more than ordinary value, it would be au imposition upon him, and the law will not lend its aid in such a case to make him accountable for the money or other valuable contents if they should be lost.1 3. See post, §§ 795, 425-441; Warner v. The W. T. Co., 5 Robt. (N. Y.) 490; Orange County Bank v. Brown, 9 Wend. 85; Pardee v. Drew, 25 Wend. 459; Shaacht v. Railroad Co., 94 Tenn. 658, 30 S. W. Rep. 742, 28 L. R. A. 176, citing Hutchinson on Carr. Bottum v. Railway Co., S. Car. 51 S. E. Rep. 985, citing Hutchinson on Carr. The silence of the shipper touching the character and value of goods contained in a package which does not indicate that its contents are of great or unusual value, may, even in the absence of an inquiry by the carrier or of an actual intent by the shipper to defraud, absolve the car rier from liability on account of the loss or destruction of the contents. Express Co. v. Wood, 98 Ga. 268, 25 S. E. Rep. 436. 4. Chicago, etc., R. R. Co. v. Thompson, 19 Ill. 578; Oppenheimer v. The U. S. Ex. Co., 69 id. 62; Chicago, etc., R. R. v. Shea, 66 id. 471; Hayes v. Wells, 23 Cal. 185; Southern Ex. Co. v. Everett, 37 Ga. 688; Houston, etc., R. Co. v. Burke, 55 Tex. 323; Magnin v. Dinsmore, 56 N. Y. 168; 62 id. 35; 70 id. 410; Gorham Mfg. Co. v. Fargo, 35 N. Y. Super. 434; Michalitschke v. Express Co., 118 Cal. 683, 50 Pac. Rep. 847. But see Rice v. Railroad Co., 3 Mo. App. 27. Sec. 332. ($215.) Same subject-Illustrations.-A leading case upon this subject is that of Orange County Bank v. Brown,5 which was an action against the owners of a steamboat for the loss of a trunk belonging to a passenger. It was proven that the trunk contained a large amount of money, of which no notice was given to any of the officers of the boat, and for the carriage of which no remuneration was paid to the carrier at all commensurate with its value. It was contended for the plaintiff that, notwithstanding these facts, the defendants were liable, by the strict rules of the common law in regard to the responsibility of carriers, for the full value of the trunk including the money it contained. It was admitted by the learned judge who delivered the opinion in the case that no notice having been given limiting their liability or imposing any conditions upon the owner of the goods to disclose their value, it became their duty, if they desired to be informed of such value, to make inquiry, which the owner would be bound to answer truly at his peril; and, having accepted the goods for carriage without seeking such information and without qualification, they would be presumptively liable as common carriers upon common-law principles for their full value. But it was further said that if any means were used to conceal the value of the article, and thereby the owner avoids paying a reasonable compensation for the risk, such unfairness and its consequences to the defendants, upon principles of common justice as well as those peculiar to this action, would exempt them from the responsibility; for such a result would be alike due to the defendants who have received no reward for the risk and to the party who has been the cause of it by means of disingenuous and unfair dealing. It was therefore held that the delivery of the trunk without any information as to its more than ordinarily valuable contents, inducing the impression that it contained only the ordinary baggage of a passenger, and with the failure to compensate the carriers for their extraordinary risk, was a fraud upon them, and that the plaintiff could not recover. And in the case of Shaacht v. The 5. 9 Wend. 85. Railroad, the plaintiff delivered to the defendant's agent, together with other freight, a basket containing a quantity of silverware and other material intended for use in business at destination. The basket was covered and tied and had the general appearance of containing only household goods. The defendant's agent on receiving the goods cried out to his assistant that the goods were household goods, and the plaintiff, who was standing nearby, heard the remark but said nothing. The goods were sent forward by freight and the rate charged was a fourth class freight rate, which was the usual charge for carrying household goods. When the goods arrived at destination, the basket and its contents were missing. It was held that the action of the plaintiff in remaining silent and assenting to the statement that the basket contained household goods, as well as the manner in which the goods were packed, was a constructive, if not an actual, fraud on the carrier, and that the plaintiff could not therefore recover. Sec. 333. (§ 216.) Exception to liability in case of loss from the intermeddling or mistake of the owner of the goods.-So where the owner of the goods has accompanied them and has meddled with them while in the carrier's custody, cr has undertaken to direct how they shall be carried; or has unskilfully packed or loaded them; or has negligently performed his un 6. 94 Tenn. 658, 30 S. W. Rep. 742, 28 L. R. A. 176. 7. As where, without the carrier's knowledge, the owner of a horse in transportation left a car window open through which the horse escaped and was killed (Hutchinson v. Railway Co., 37 Minn. 524); and, in a like case, where the owner insisted upon having the car door left open and would not permit the carrier's servants to close it. Roderick v. Railroad Co., 7 W. Va. 54. Where the shipper of live stock places his stock in a pen provi ded by the carrier for stock awaiting transportation, and negligently fails to secure a gate to the pen, and in consequence the stock escape, the carrier is not liable. Railway Co. v. Law, 68 Ark. 218, 57 S. W. Rep. 258. 8. As where the owner selects his own place and disposes of his property for carriage according to his own ideas. White v. Winnissimmett Co., 7 Cush. 155; Wilson v. Hamilton, 4 Ohio St. 722. 9. Rixford v. Smith, 52 N. H. 355; Miltimore v. Railroad Co., 37 Wis. 190; Ross v. Railroad Co., dertakings in respect to the carriage;10 or has misdirected them,11 in all these cases the carrier will be exonerated from all liability for losses which result from such intermeddling or carelessness of the owner. So it has been held that where a package contains articles of a brittle nature, and the carrier is not informed of the fact or in any way cautioned as to the degree of care to be exercised by him on that account, he will not be held liable for any damage they may have suffered by breakage, provided he has handled them with ordinary care.12 But in order that the carrier may be excused where the fault or mistake of the owner has been instrumental in causing the loss, he himself must not have been at fault. The unaided negligence of the owner, where it occasions the loss, will preclude him from the right to a recovery. But if the carrier himself has been guilty of some negligent act or omission without which, notwithstanding the fault of the owner, the loss would not have occurred, he will be liable.13 49 Vt. 364; Klauber v. Express Where the owner of live stock undertakes to load the stock himself, he cannot recover for injury to the animals caused by the neg ligent manner in which the car was loaded. Fordyce v. McFlynn. 56 Ark. 424, 19 S. W. Rep. 961; Texas, etc., Ry. Co. v. Edins (Tex. Civ. App.), 83 S. W. Rep. 253; Ficklin & Son v. Railroad Co., Mo. App. -, 92 S. W. Rep. 347. 10. Miltimore v. Railroad Co., supra; Roderick v. Railroad Co., supra; Betts 2'. Farmers', etc., Co., 21 Wis. 80; Lee v. Railroad Co., 72 N. C. 236. See, also, Bohannon v. Hammond, 42 Cal. 227; Smith v. Smith, 2 Pick. 622; Brownell v. Flagler, 5 Hill, 282. 11. See as to this, § 677; Congar v. Railroad Co., 24 Wis. 157; Lake Shore R. Co. v. Hodapp, 83 Penn. St. 22. 12. American Ex. Co. v. Perkins, 42 Ill. 458. |