153 Mass. 553 | Mass. | 1891
It is not expressly stated in the report, that the law of England was put in evidence as a fact in the case, but it seems to have been assumed at the trial, if not expressly agreed, that this law should be considered, and the argument before this court has proceeded on the same assumption. It is conceded that the presiding justice correctly found and ruled as follows: “ That the contract was a British contract; that, by the English law, a carrier may by contract exempt himself from liability, even for loss caused by his negligence; that in this case, as the carrier has so attempted, and the terms are broad enough to exonerate him, the question remains of assent on the part of the plaintiff.” That part of his ruling which is called in question by the defendant is as follows: “ This has been decided in Massachusetts to be a question of evidence, in which the lex fori is to govern; that although it has been decided that the law conclusively presumes that a consignor knows and assents to the terms of a bill of lading or a shipping receipt which he takes without dissent, yet a passenger ticket, even though it be called a ‘ contract ticket,’ does not stand on the same footing ; that in this case assent is not a conclusion of law, and is not proved as a matter of fact.”
The principal question before us is whether the plaintiff, by reason of his acceptance and use of his ticket, shall be conclusively held to have assented to its terms. It has often been decided, that one who accepts a contract, and proceeds to avail himself of its provisions, is bound by the stipulations and conditions expressed in it, whether he reads them or not. Rice v. Dwight Manuf. Co. 2 Cush. 80. Grace v. Adams, 100 Mass. 505. Hoadley v. Northern Transportation Co. 115 Mass. 304. Monitor Ins. Co. v. Buffum, 115 Mass. 343. Germania Ins. Co. v. Memphis & Charlestown Railroad, 72 N. Y. 90. This rule is as applicable to contracts for the carriage of persons or property as to contracts of any other kind. Grace v. Adams, 100 Mass. 505. Boston & Maine Railroad v. Chipman, 146 Mass. 107. Parker v. South Eastern Railway, 2 C. P. D. 416, 428. Harris v. Great Western Railway, 1 Q. B. D. 515. York Co. v. Central Railroad, 3 Wall. 107. Hill v. Syracuse, Binghamton, & New
We are of opinion that the ticket delivered to the plaintiff purported to be a contract, and that the defendant corporation had a right to assume that he assented to its provisions. All these provisions are equally binding on him as if he had read them.
The contract being valid in England, where it was made, and the plaintiff’s acceptance of it under the circumstances being equivalent to an express assent to it, and it not being illegal or immoral, it will be enforced here, notwithstanding that a similar contract made in Massachusetts would be held void as against public policy. Greenwood v. Curtis, 6 Mass. 358. Forepaugh v. Delaware, Lackawanna, Western Railroad, 128 Penn. St. 217, and cases cited. In re Missouri Steamship Co. 42 Ch. D. 321, 326, 327. Liverpool & Great Western Steam Co. v. Phenix Ins. Co. 129 U. S. 397.
Judgment for the defendant.