horses and found that some of them were lying down and apparently injured. He then demanded of the conductor that the car in which the horses were shipped should be backed up to the stock-yards in order that the horses might be removed from the car. This was done, when the horses were unloaded and found to be considerably bruised. He then refused to reload the horses upon the car, took possession of them, and caused them to be taken across the country to the plaintiff's farm, which was not far distant. The plaintiff further testified that when the car reached Concordia, he paid the price agreed upon. for the transportation of the same; but that no notice has ever been given to the conductor of that train, or to any officer or agent of the railway company, prior to the commencement of this action, that he claimed any damages for the injury to his stock; that he knew the condition of the horses, and the extent of the injury to them, before they were taken to the farm, and yet he had not given any notice of any claim therefor.

When the plaintiff closed his testimony the railway company interposed a demurrer to the evidence, which the court, after consideration, sustained. Upon this ruling the plaintiff raises and discusses several questions here, but as one of them disposes of the case the others require no attention. If the contract of the parties is to be upheld, by which it was agreed that before the plaintiff could recover damages for any injury to his horses he must give notice in writing of his claim therefor to some officer of the railway company, or to its nearest station agent, before the horses were removed from the place of destination, or from the place of the delivery of the same to the plaintiff, and before they were mingled with other stock, then the demurrer to the evidence was rightly sustained, and the judgment should be affirmed.

The plaintiff contends that the agreement is not binding upon him, because it is not one permitted by the laws to be made, and for the further reason that it is without consideration. As a general rule common carriers are held liable as insurers, and are absolutely responsible for any loss to the property intrusted to them, unless such loss is occasioned by the act of God or the public enemy. It is now a well-established rule of law that this liability may be limited to a certain extent; but to accomplish this it must clearly appear that the shipper understood and assented to the limitation. Common carriers are not permitted, by agreement or otherwise, to exempt themselves. from liability for loss occasioned by their negligence or misconduct. Such limitations are held to be against the policy of the law, and would be void. But it is no longer questioned that they may, by special agreement, stipulate for exemption from the extreme liability imposed by the common-law, provided that such stipulations are just and reasonable and do not contravene any law or a sound public policy. That the agreement in question was executed by the plaintiff is admitted, not only by the pleadings, but it was expressly agreed

to by him upon the trial. There is no pretense that any deceit or fraud was practiced upon him by the railway company in obtaining his assent to the agreement. So far as appears in the testimony it was fairly and understandingly entered into and executed. His authorized agent, who accompanied the horses, and who had them in charge while passing over defendant's road, knew of this provision of the contract, and was acquainted with the condition of the stock before they were taken from the possession of the railway company. And the plaintiff, with full knowledge of this requirement, paid the freight charges agreed upon after the injury had been done without complaint, and without claiming any damages therefor, and gave no notice, nor did he make any claim for damages prior to the commencement of this action.

The stipulation requiring notice of any claim for damages to be given cannot be regarded as an attempt to exonerate the company from negligence, or from the negligence or misfeasance of any of its servants. The company concede that such an agreement would be ineffectual for that purpose. It is to be regarded rather as a regulation for the protection of the company from fraud and imposition in the adjustment and payment of claims for damages by giving the company a reasonable opportunity to ascertain the nature of the damage and its cause. After the property has been taken from their possession and mingled with other property of a like kind, the difficulty of inquiring into the circumstances and character of the injury would be very greatly increased. That such a provision does not contravene public policy, and that it is just and reasonable, has been expressly adjudicated by this court. In Goggin v. Kansas Pac. Ry. Co., 12 Kan. 416, a limitation substantially like the one in question was under consideration, and the circumstances of that case were much like those of the present one. It was there, as here, urged, in spport of the reasonableness and justice of the regulation, that the defendant was, at the time of the alleged injury, engaged in transporting great numbers of cattle and horses over its line of road, and which were being shipped to different points thereon, and that it would have been impossible for it to have distinguished one car-load from another, unless its attention was called immediately thereto, and that the object of the notice and demand mentioned in the contract was to relieve it from any false or fictitious claim, and to give it an opportunity to have an inspection of the stock before they were removed or mingled with others, and the company could thus have an opportunity to ascertain and allow the actual damages suffered. These reasons are said to be cogent; and the agreement is there held to be reasonable, just, and valid. The decision in that case governs the one at bar, and the view which we have taken of the validity of this limitation accords with the decisions of other courts, among which the following may be cited: Rice v. Kansas Pac. Ry. Co., 63 Mo. 314; Oxley v. St. Louis, K. C. & N. Ry., 65 Mo. 629; Express Co.

v. Caldwell, 21 Wall. 264; Dawson v. St. Louis, K. C. & N. Ry. Co., 76 Mo. 514; Texas Cent. Ry. v. Morris, 16 Amer. & Eng. R. R. Cas. 259, and cases there cited.

The plaintiff makes the further objection to the special agreement that it is without consideration. It appears that the rate to be paid for the car in which the horses were shipped was omitted from the contract, and the plaintiff urges that as the price is not stated, it does not appear that any concession or reduction was made from the established rates, and therefore there was no consideration for the stipulation in question. But that position cannot be maintained. The contract was in writing, and signed by the parties to be bound thereby, and by virtue of our statute it imports a consideration. Gen. St. c. 21, § 7.

If more was needed to show that the objection is not well founded, it might be found in the plaintiff's petition, where he alleges that the contract was based upon a valuable consideration, and in his testimony, where it appears that $30 was the rate agreed upon, and the amount that was paid by him under the contract. When these things are taken in connection with the statement in the written contract that the price agreed upon was a reduction from the established rates, the consideration for the stipulation in question is sufficiently shown. It follows from what has been said that the judgment of the district court should be affirmed.

(All the justices concurring.)

NOTE.

Carrier of Goods-Limiting Liability by Contract.

A common carrier may, by special contract, limit his common-law liability; but he cannot stipulate for exemption from the consequences of his own negligence, or that of h's servants, Rosenfeld v. Peoria, D. & E. Ry. Co., 2 N. E. Rep. 344; New Jersey S. Nav. Co. v. Merchants' Bank, 6 Iow. 344; York Co. v. Central R. R., 3 Wall. 107; Railroad Co. v. Lockwood, 17 Wall. 357; Express Co. v. Caldwell, 21 Wall. 264; Railroad Co. v. Pratt, 22 Wall. 123; Bank of Kentucky v. Adams Exp. Co., 93 U. S. 174; Railway Co. v. Stevens, 95 U. S. 655; Hart v. Pennsylvania R. Co., 5 Sup. Ct. Rep. 151; Ormsby v. Union Pac. R. Co., 4 Fed. Rep. 706; May v. The Powhatan, 5 Fed. Rep. 375; Rintoul v. New York Cent. & H. R. R. Co., 17 Fed. Rep. 905; Moulton v. Railway Co., 16 N. W. Rep. 497; Railroad Co. v. Simpson, 2 Pac. Rep. 821; Express Co. v. Carroll, 1 Pac. Rep. 682; for the law will not allow a common carrier to contract to be safely dishonest or negligent, Rosenfeld v. Peoria, D. & E. Ry. Co., 2 N. E. Rep. 344; see Michigan Southern & N. I. R. Co. v. Heaton, 37 Ind. 448; Ohio & M. Ry. Co. v. Selby, 47 Ind. 471; St. Louis & S. E. Ry. Co. v. Smuck, 49 Ind. 302; Adams Exp. Co. v. Fendrick, 38 Ind. 150; Indianapolis, P. & C. R. Co. v. Allen, 31 Ind. 394; Lawson, Carr. 31; and in Iowa a regulation by a railway company that no valuable live-stock shall be received for shipment until a contract is signed by the owner releasing the company from all liability for injury to the stock in shipment above the value of ordinary stock is void, McCune v. Burlington, C. R. & N. Ry. Co., 3 N. W. Rep. 615; and in Minnesota it has been held that a contract that in effect is an agreement for absolute exemption from liability except for willful negligence, and in case such contract should not be sustained then that the liability of the carrier should be limited to the sum named, is not valid as exempting the carrier, in whole or in part, from liability for its own negligence to the extent of the value of the property. Moulton v. St. Paul, M. & M. Ry. Co., 16 N. W. Rep. 497. So in Kansas, where a horse was shipped by rail, and the bill of lading was signed by the carrier and the agent of the shipper, and provided, among other things, "value not to exceed $100," which was inserted in the bill of lading by the carrier, and, through the carrier's negligence, the horse was injured, it was held that the recovery of damages was not limited by the words "value not to exceed $100," Railroad Co. v. Simpson, 2 Pac. Rep. 821; and in Wisconsin it was held that the words "liquor carried at

value, $20 per bbl.," stamped upon the face of the carrier's receipt, would limit the carrier's liability only in case of loss without the carrier's fault. Black v. Goodrich Transp. Co., 13 N. W. Rep. 244. See, also, Overland Mail & Exp. Co. v. Carroll, (Colo.) 1 Pac. Rep. 682; Southern Exp. Co. v. Moon, 39 Miss. 822; Railroad Co. v. Abels, 60 Miss. 1017; The City of Norwich, 4 Ben. 271; United States Exp. Co. v. Backman, 28 Ohio St. 144. But it is held by the supreme court of the United States that where a contract of carriage signed by the shipper is fairly made with a railroad company, agreeing on a valuation of the property carried with the rate of freight, based on the condition that the carrier assumes liability only to the extent of the agreed valuation, even in case of loss or damage by the negligence of the carrier, the contract will be upheld as a proper and lawful mode of securing a due proportion between the amount for which the carrier may be responsible and the freight he receives, and of protecting himself against extravagant and fanciful valuations; and, in the event of loss, the shipper cannot recover more than the agreed value. Hart v. Pennsylvania R. Co., 5 Sup. Ct. Rep. 151; S. C. 7 Fed. Rep. 630. This decision is supported by Newburger v. Howard, 6 Phila. 174; Squire v. Railroad Co., 98 Mass. 239; Hopkins v. Westcott, 6 Blatchf. 64; Belger v. Dinsmore, 51 N. Y. 168; Oppenheimer v. Express Co., 69 Ill. 62; Magnin v. Dinsmore, 56 N. Y. 168, 62 N. Y. 35, and 70 N. Y. 410; Earnest v. Express Co., 1 Woods, 573; Elkins v. Empire Transp. Co., 81* Pa. St. 315; Railroad Co. v. Henlein, 52 Ala. 606; 56 Ala. 368; Muser v. Holland, 17 Blatchf. 412; S. C. 1 Fed. Rep. 382; Harvey v. Terre Haute R. Co., 74 Mo. 538; Graves v. Lake Shore Ry. Co., 137 Mass. 33. And the supreme court of Indiana recently held, in the case of Rosenfeld v. Peoria, D. & E. Ry. Co., 2 N. E. Rep. 344, that where a shipper misrepresented the value of his article for the purpose of getting reduced rates, that he will be bound by a contract fixing the amount of recovery for loss, at the sum stated by the shipper as the value of the goods. For a fuller discussion of this question, especially as to limitation of liability for loss of passengers' baggage, see Mauritz v. New York, L. E. & W. R. Co., 23 Fed. Rep. 765, and note, 772-780.

1. CRIMINAL LAW-CONTINUANCE-ABSENCE OF WITNESS.

Where a criminal information is filed 19 days before the commencement of the term of the court, and the defendant causes a subpoena to be issued six days before the commencement of such term for a witness who resides in the county in which the court convenes, and the officer by mistake serves the subpœna upon the wrong person; and the defendant, five days before the commencement of such term, causes another subpoena to be issued for such witness, and this subpoena is served upon the witness at his usual place of residence, and not upon him personally; and the defendant again, on the day on which the court convenes, causes another subpoena to be issued for such witness, and, the case being called for trial on that day, the defendant moves for a continuance of the case to some subsequent day of the term, or to the next term, and supports his motion by affidavit, and the affidavit sets forth the foregoing facts, and what would be the testimony of the witness if he were present, and such testimony is material, and the court overrules the motion, and requires that the defendant shall immediately proceed to trial: held, error; that up to that time the defendant had used sufficient diligence to procure the attendance of such witness, and that the continuance should have been granted. 2. SAME-CHARGING OFFENSE-EVIDENCE-CONVICTION.

Where a criminal information sets forth facts sufficient to constitute the offense of assaulting and wounding a person, with intent to commit murder, under section 38 of the act relating to crimes and punishments, and the facts as thus set forth also constitute the offense of wounding under such circumstances as would constitute manslaughter if death had ensued, under section. 42 of the crimes and punishments act, held, that the jury may find the defendant guilty of either of the offenses charged, as the evidence will justify. And, generally, wherever a person is charged upon information with the commission of an offense under one section of the statutes, and the offense as thug charged includes another offense under another section of the statutes, the defendant may be found guilty of either offense.

3. SAME-NEW TRIAL-TESTIMONY OF FOREMAN OF JURY TO SHOW MISTAKE. Where a defendant in a criminal prosecution has been found guilty by the jury, and the defendant, to support his motion for a new trial, offers to prove

by the testimony of the foreman of the jury that he (the foreman) was "misled by the form of the verdict, and would not have signed it had he known its real meaning," and the court refuses to permit such testimony to be introduced, held, not error.

Appeal from Norton county.

S. B. Bradford, Atty. Gen., and L. H. Thompson, for appellee. Louis K. Pratt, for appellant.

VALENTINE, J. On March 25, 1885, a criminal information was filed by the county of Norton county, which information, omitting the caption and verification, reads as follows:

"I, the undersigned, prosecuting attorney of said county, in the name, by authority, and on behalf of the state of Kansas, give information that on the twenty-third day of January, A. D. 1885, in said county of Norton and state of Kansas, one James E. Burwell, with force and arms, did then and there unlawfully, feloniously, on purpose and malice aforethought, in and upon the body of one W. A. Johnson, then and there being, commit an assault, and did then and there, he, the said James E. Burwell, with a pistol commonly called a revolver, loaded with powder and ball, a dangerous and deadly weapon, liable to produce death or great bodily harm, and the said pistol being then and there in the hands of the said James E. Burwell held, did then and there the said James E. Burwell, with the pistol aforesaid, unlawfully, feloniously, on purpose, and of malice aforethought, shoot at, against, and into the body of the said W. A. Johnson, thereby causing a serious and dangerous wound, with the intent then and there him, the said W. A. Johnson, unlawfully, feloniously, on purpose and malice aforethought, to kill, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Kansas.

"L. H. THOMPSON, Prosecuting Attorney."

On April 7, 1885, the defendant caused a subpoena to be issued, requiring W. A. McKinney, who resided in Norton county, to attend at the next term of the district court, which was to begin on April 13, 1885, and give testimony as a witness on behalf of the defendant. By mistake of the officer this subpoena was served on the wrong person. On April 9, 1885, the defendant caused another subpoena to be issued for McKinney, which was served at his usual place of residence, and not on him personally. On April 13, 1885, the defendant caused another subpoena to be issued for McKinney. On the same day the case was called for trial. The last subpoena had not yet been returned, and the witness was not present. The defendant therefore moved for a continuance to some subsequent day of the term, or to the next term, and supported his motion by an affidavit; but the court held that the affidavit was not sufficient, and overruled the motion. The case was then tried on April 13 to 15, 1885, and on the last day mentioned the jury returned the following verdict, omitting the title and signature:

"We, the jury duly impaneled and sworn in the above-entitled action, do find, from the law and the evidence, the defendant, James E. Burwell, guilty of wounding W. A. Johnson in the manner charged in the information herein filed, under circumstances which would have constituted manslaughter in the fourth degree if death had ensued from said wounding."