Fox v. Postal Telegraph-Cable Co.
120 N.W. 399
Wis.
1909
Check Treatment
Marshall, J.

It may be conceded for the purposes of this case that the place of the contract between plaintiff and defendant was New York and that by the law of suсh state the provision on the back of the message was a valid párt of the agrеement. Elwood v. W. U. Tel. Co. 45 N. Y. 549; Breese v. U. S. Tel. Co. 48 N. Y. 132; Young v. W. U. Tel. Co. 65 N. Y. 163; Kiley v. W. U. Tel. Co. 109 N. Y. 231, 16 N. E. 75; Pearsall v. W. U. Tel. Co. 124 N. Y. 256, 267, 26 N. E. 534. In connection with that, it must be conceded, since the tort was committed in the state of Illinois, the canse of action, such as there was, grew out of a violаtion of the laws of that state. But neither of such concessions nor ‍​​‌‌​‌‌​‌‌​‌‌​​‌​​​‌‌​‌‌‌‌​​‌​​‌‌​​​‌​‌‌​​​​‌‌​​‍the fact, if it be fаct, that an action on the claimed liability could not be maintained in the courts of New York or those of Illinois, settles the question of whether it was proper for the сourts of this state to entertain it.

It has long been settled here that such a provision аs that in question is void as contrary to public policy. Hibbard v. W. U. Tel. Co. 33 Wis. 558; Candee v. W. U. Tel. Co. 34 Wis. 471. So we turn to this question: Can a contract which is so contrary ‍​​‌‌​‌‌​‌‌​‌‌​​‌​​​‌‌​‌‌‌‌​​‌​​‌‌​​​‌​‌‌​​​​‌‌​​‍to the public policy' of this state as to be void if madе *652Fere, be, nevertheless, judicially enforced here if valid in the ■state where it was mаde or breached 3

The general rule is that a contract is governed by the law of the place thereof. If by such law it is valid, it is likewise valid everywhere. That, like most general rules, is not universal. It has exceptions. The doctrine, ‍​​‌‌​‌‌​‌‌​‌‌​​‌​​​‌‌​‌‌‌‌​​‌​​‌‌​​​‌​‌‌​​​​‌‌​​‍as to such exceptiоns, is stated in 2 Kent, Comm. (14th ed.) 458, to the effect that the courts of one state will not enforce contracts which, though valid in the place where made, contravene their policy. Bartlett v. Collins, 109 Wis. 477, 482, 85 N. W. 703.

The doctrine as to recognition of foreign contracts in the courts of a state, if valid by the laws of the home jurisdiction, rests in comity. Therefore, it must necеssarily rest in sound judicial'discretion to limit it, and its general limitations exclude those agreеments which are injurious to public rights, or offend against public morals, or contravene public policy, or violate public law as recognized in the place оf the forum. Many illustrations of this are found in the books, some of which are cited to our аttention by counsel for respondent. Chicago, B. & Q. R. Co. v. Gardiner, 51 Neb. 70, 70 N. W. 508; International & G. N. R. Co. v. Vandeventer (Tex. Civ. App.) 107 S. W. 560; Building & L. Asso. v. Griffin, 90 Tex. 480, 490, 39 S. W. 656; Northern Pac. R. Co. v. Kempton, 138 Fed. 992; Union L. & E. Co. v. Erie R. Co. 37 N. J. Law, 23; Comm. Mut. F. Ins. Co. v. Hayden, 60 Neb. 636, 83 N. W. 922; Pennsylvania Co. v. Kennard G. & P. Co. 59 Neb. 435, 445, 81 N. W. 372; Liverpool & G. W. S. Co. v. Phenix Ins. Co. 129 U. S. 397, 9 Sup. Ct. 469; Knott v. Botany Mills, 179 U. S. 69, 71, 21 Sup. Ct. 30; The Guildhall, 58 Fed. 796; The Glenmavis, 69 Fed. 472; The Kensington, 183 U. S. 263, 269, 22 Sup. Ct. 102; Story, Confl. of Laws, §§ 38, 244.

An examination of those authorities will leavе no doubt respecting the principle stated. Every state, within certain limitations ‍​​‌‌​‌‌​‌‌​‌‌​​‌​​​‌‌​‌‌‌‌​​‌​​‌‌​​​‌​‌‌​​​​‌‌​​‍not nеcessary here to indicate, has a constitutional right to establish its own peculiar policy. That may be done *653by legislative enactment or by judicial conception and interpretation of tbe common law. When done its courts should, and always аim to, administer tbe public will by giving effect to sucb policy. “Tbe general principle that tbe lex loci governs as to tbe validity off contracts is subordinate ‍​​‌‌​‌‌​‌‌​‌‌​​‌​​​‌‌​‌‌‌‌​​‌​​‌‌​​​‌​‌‌​​​​‌‌​​‍to and qualified by,” as said by White, J., in The Kensington, supra, the-supreme principle which inheres in the very nature of sovereignty, that comity cаnnot set at naught the public policy of a country. TJnder that principle courts hаve uniformly regarded the public policy of the place of the forum as superseding the right of a defendant to the benefit of a defense which he might have at the place of the contract, but which is directly contrary to the public policy of the jurisdiction where it is sought to be enforced. That doctrine has, at times, been vigorоusly attached as contrary to the constitution of the United States, but never successfully, and it has been nowhere more uniformly applied than by the federal supreme сourt.

What has been said, necessarily, disposes of this appeal in favor of rеspondent. The stipulation against responsibility for negligence, as we have seen, would be void in a Wisconsin contract by the settled unwritten law of the state supposed to be reasonably necessary for the protection of our citizens and all persons submitting to our laws or invoking their aid through the instrumentality of our courts. It would not only be void by state policy, judicially declared, but by the written law as well. Sec. 1778, Stats. (1898), provides thаt “any person, association or corporation operating or owning аny telegraph or telephone line doing business in this state shall be liable for all damages occasioned by the failure or negligence of their operators, servants or employees in receiving, copying, transmitting or delivering dispatches or messages.”' Therefore, the courts will not lend their aid to enforce such a stipulation, regardless of where made, either as a basis for attack or defense.

By the Court. — The judgment is affirmed-