90 Iowa 265 | Iowa | 1894
Lead Opinion
A rebearing was granted in tbis case, and it is again submitted with further arguments. Tbe facts disclosed by tbe pleadings, which are material to be considered, are sufficiently stated in tbe former opinion (53 N. W. Rep. 295), and are as follows: “On tbe thirtieth day of April, 1890, tbe plaintiff Griswold owned a two and one half story elevator building, warehouse and corncrib attached, together with engine and boiler connections and feed mill therein, all of which were situated on tbe depot grounds of defendant, immediately north of its track, in tbe village of Winthrop. In tbe morning of tbe day named, tbe property described was totally destroyed by fire, which was kindled by sparks and cinders from a locomotive engine of defendant while passing on its track. Tbe sparks and cinders escaped from tbe engine in consequence of defects in its construction and appliances, and in consequence of tbe negligent manner in which it was operated. Tbe property destroyed was of tbe
I. It will be seen, from the statement of the case, that the controlling question is whether that clause in the lease whereby plaintiff Griswold agrees to protect and save harmless the defendant from all liability for damages by fire negligently communicated to the property on the leased premises in the operation of the railroad is void, as against public policy.. The right to so contract as to fire accidentally communicated is not questioned, but only the right to so contract as to fire negligently communicated. Public policy is variable,— the very reverse of that which is the policy of the
In granting the permission, and in placing the buildings there, both parties knew of the increased hazard of the location from fire communicated either through accident or negligence in the operation of the road. They knew that the defendant corporation could only act through its officers, agents, and employees, and that these might be negligent in the performance of their duties. The plaintiff had an insurable interest, and could, as he did, protect himself, in part at least, against loss by either accident or negligence. The defendant had no insurable interest, and could only protect itself from the hazard by refusing consent, or by contracting for indemnity, as it did. Plaintiff Griswold contracted with his coplaintiffs, the insurance companies, for indemnity against loss by fire, whether caused by accident or negligence. The fire occurred through neglect, and the insurance companies, as they were bound to do, paid the insurance. Those contracts, like this, were-for indemnity against liability by fire, whether caused by accident or negligence. Many losses by fire occur through the negligence of the insured or his family, and recovery is had, unless the negligence was willful. While these policies are not before us, we may assume, we think, that, under them,
II. It is contended that the defendant entered into this contract in its capacity as a common carrier, and therefore we must apply to the consideration of the question section 1308, providing, in effect, that carriers of persons or property can not exempt themselves from liability by contract which would exist had no contract been made. It is undoubtedly true that the ultimate purpose of the defendant in entering into this contract was the promotion of its business as a
III. In the lease the plaintiff Griswold agrees ■“that he will transact the business for which said ■buildings are erected and designed at fair and reasonable rates, and in a prompt and careful manner, so that neither the company nor the public will be prejudiced by reason of the said lessee dealing unfairly or negligently in their behalf, or in the transaction of the ■business connected with the grain, coal, and lumber building so erected as aforesaid.” While it is evident "the parties contemplated a place for dealing with the public, in the maintenance and management of which ■the public might be interested, neither that interest nor Mr. Griswold’s agreement gave the public any interest as to who should bear the hazard of the loss of the buildings by fire. The plaintiff indemnified himself against the loss, in part at least, by insurance, and the insurance companies have paid him, as they were bound to -do. Surely, public policy does not demand that the defendant shall now reimburse these insurance companies for the payments they were bound to make by
Dissenting Opinion
(dissenting).
I can not assent to-the conclusions of the foregoing opinion that the agreement in question was effectual to relieve the defendant, of liability for negligently setting fire to and destroying the property of the plaintiff. Something has been said on rehearing in regard to the liability of the defendant, to the insurance companies and their right to recover; but as no question in regard to such liability and right-of recovery, as distinguished from the liability of defendant to Griswold for the loss he sustained, for which he has not been compensated, is presented by the pleadings, or was argued on the first submission of the cause, it should not, as it seems to me, be given weight now. It is well settled that, in a civil case, a party can not, on rehearing, make a case different from that presented on the original submission. McDermott v. R’y Co., 85 Iowa, 180, 52 N. W. Rep. 185, and cases therein cited. It follows that the only questions which we should now consider are those involved in determining the character and effect of the provisions of the-case in-question, and the right of Griswold to recover, without regard to the interests of the insurance companies. On the rehearing we have been favored with elaborate arguments by representatives of several of the leading railway corporations doing business in the state, and, in explanation, it is said that the questions involved are of interest to all railway companies in the
Railway corporations are quasi public agencies, and perform a public duty. They are agencies created by the state with certain privileges, and subject to certain obligations. A contract that they will not discharge their obligations is a breach of a public duty, and can not be enforced. Railway Co. v. Ryan, 11 Kan. 609. An agreement by which a railway corporation undertakes, without the consent of the state, to relieve itself of a burden which is imposed upon it by law, is void, as against public policy. Thomas v. Railway Co., 101 U. S. 71. Among the obligations [imposed upon railway corporations is that of using reasonable diligence in furnishing its road with safe equipments, including locomotive engines, and of operating its road without negligence. That is a duty which it owes to the public, and any agreement which tends to lessen the diligence and care with which it furnishes and operates its road is, to that extent, against public policy. The contract entered into between Griswold and defendant was not for carriage, and primarily it was for the benefit of the parties to it, and not in the interest of the public. But it is clear that its purpose on the part of defendant was to benefit and promote its business as a carrier. The nominal sum of one dollar was not the considera
Such negligence might be manifested in many ways — as, in the use of insufficient or defective machinery, in the employment of careless or incompetent train men, or in having an insufficient number of trainmen, — and was necessarily of a kind to affect the business of defendant as a common carrier. The tendency •of the agreement was to make the defendant less diligent, in keeping its locomotive engine's in good order, in adopting improvements to prevent the escape of fire, and in selecting its employees, than it would •otherwise have been, and thus to expose, not only the property of Griswold, but all other property of a com
It does not seem to me that the law which governs ordinary contracts of insurance is applicable to this case. In such contracts the property owner is never, in terms, insured against the consequences of his own negligence. On the contrary, great care is taken to.
Whether the defendant owed to the public any duty in regard to its own buildings, whether the defendant had any insurable interest in the property of Griswold which was destroyed, and whether the insurance companies are entitled to recover the amounts they have paid to G-riswold, are questions which do not appear to me to be so presented as to make it proper for us to determine them on this appeal, and in regard to them I express no opinion.