75 A. 1041 | N.H. | 1910
In April, 1909, it was decided in this case that the plaintiff's agreement to waive any claim for damages from an injury resulting from the negligence of the defendants' servants, as the condition upon which he was permitted to work for the Express Company in the defendants' train-shed, was valid and an answer to a suit founded on such negligence.
1. The case being again in this court upon exceptions to certain rulings in the superior court made in anticipation of further trial, it appearing that the written contract offered as evidence in support of the brief statement "provided for the exemption of the railroad from liability, not only for the consequences of the negligence of its servants, but also for the consequences of its own negligence," the plaintiff contends that the stipulation releasing the defendants' own negligence is contrary to public policy, illegal, and void, and that consequently the other stipulations of the contract are illegal and incapable of enforcement. This question the plaintiff brings here by exception to the failure of the superior court to rule in accordance with this contention. It is objected that the question now raised is involved in the former decision and cannot be re-examined except upon a motion for rehearing, which it is now too late to entertain. No hearing has been had since the former decision; and if it were true, as claimed, that the court by inadvertence or misapprehension had upheld an illegal agreement, it is probable some method for the correction of the error could be discovered. But however this may be, as the question has been fully argued it may be as well first to inquire whether the embarrassing situation charged exists. Whether there was at the trial evidence of negligence to which the agreement to release the defendants from liability would not be an answer, has not been determined. It would be useless to consider the question now, because upon another trial, if one should be had, neither party would be confined to the evidence previously introduced. The defendants concede that the release from their own negligence is broad enough to cover a liability as to which it cannot be sustained. It is therefore admitted that the agreement contains stipulations for the benefit of the defendants which the law would refuse to enforce.
In support of the contention, the plaintiff cites cases resting upon *437
the proposition that a right cannot be founded upon a violation of law, and hence no legal right can grow out of a contract promoting or intending to promote such a violation (Beach v. Kezar,
These propositions are elementary. They are sustained by other cases in the reports and by the numerous citations of the brief from other jurisdictions. But it is to be noted that in all the cases cited in which the consideration is illegal in part only, the promise founded thereon is held invalid upon the ground that the consideration is indivisible; and since in such case the promise rests upon every part of the consideration, the result is the same as if the whole consideration were illegal. When the consideration is in part good and in part bad, and there are several promises, if it can be seen that a promise otherwise valid depends upon the good part of the consideration it is upheld, although the contract contains agreements unenforceable because dependent upon the illegal part. To render the promise invalid, it must in fact rest upon the illegal or void consideration; and where the contract is divisible, such of the promises as rest upon the valid part of the consideration will be enforced.
Carleton v. Woods,
The plaintiff's authorities are sound, but inapplicable. A contract may be part of an illegal purpose, or entered into to carry out such a purpose. The consideration may be a legal or an illegal act or promise, or may consist of both legal and illegal acts or promises. On the other side, the promises may be to do legal or illegal acts, or both. Treating the agreement as a simple contract, there is no question of the immorality, illegality, or voidability of any part of the consideration for Piper's promises — his employment by the *438 Express Company or the defendants' assent to his presence in the train-shed. Neither was the purpose of the contract — the securing of employment by Piper and of his services by the Express Company — in violation of any rule of law. Neither was it intended, so far as appears, that Piper should be required or permitted in the course of his employment to do any illegal act. The cases referred to are therefore not in point.
But the validity of a legal promise upon a good consideration, though joined in the same instrument or agreement with an illegal promise upon the same consideration, is determined by the same principle — the separability of the good from the bad. Such has been the law from an early day. "At the common law, when a good thing and a void thing are put together, in one self-same grant, the same law shall make such construction that the grant shall be good for that which is good, and void for that which is void." Bishop of Chester v. Freeland, Ley 71, 79. "It has sometimes been thought that the maxim `void in part, void in toto' expresses a general principle of law; but in reality it does not, as every one must see on a moment's reflection. In the nature of things, in reason, and, above all, in justice, it may be true that a deed, will, or other instrument can in part be good, although another part is void because in contravention of positive law." Savage v. Burnham,
Where the defendant has received the consideration in full for the doing of two things, no ground appears in reason why, if the law will excuse him from performance of one, he should for that reason alone also be released from the other promise. There is none in the law; for "the common law doth divide according to common reason, and having made that void that is against law, lets the rest stand." Norton v. Simmes, Hob. 12, 15. As says Kent, quoting the foregoing: "Where any matter, void even by statute, be mixed up with good matter which is entirely independent of it, the good part shall stand and the rest be held void; though if the part which is good depends upon that which is bad, the whole instrument is void." 2 Kent *468. Or as stated by Chitty: "So, if a contract be made on several considerations, one of which is illegal, the whole contract is void, and that whether the illegality be at common law or by statute. But where the consideration is tainted by no illegality, and some of the promises only are illegal, the illegality of these does not communicate itself to or taint the others, except when, owing to some peculiarity in the contract, its parts are inseparable." Chit. Cont. (10th Am. ed.) 730.
"A distinction must be taken between the cases in which the consideration is illegal in part and that in which the promise *439 founded on the consideration is illegal in part. If any part of a consideration is illegal, the whole consideration is void; because public policy will not permit a party to enforce a promise which he has obtained by an illegal act or an illegal promise, although he may have connected with this act or promise another which is legal. But if one gives a good and valid consideration, and thereupon another promises to do two things, one legal and the other illegal, he shall be held to do that which is legal, unless the two are so mingled and bound together that they cannot be separated; in which case the whole promise is void." 1 Par. Cont. (9th ed.) 496.
Page on Contracts, a more modern authority, is to the same effect, applying the same as follows (vol. 1, s. 510): "So bills of lading otherwise valid, containing covenants void as releiving a common carrier from liability for negligence, are not entirely invalidated thereby, but only such provision is void." See 9 Cyc., p. 564, s. 10; 15 Am. Eng. Enc. Law (2d ed.) 991.
The text-writers are supported with almost entire unanimity by the reported cases. Irvine v. Stone, 6 Cush. 508; Rand v. Mather, 11 Cush. 1; Dean v. Emerson,
The material question is whether the invalid promise is severable from the other engagements of the contract. In determining this, attention is given to the fact itself rather than to the language used in stating the contract. In Rand v. Mather, 11 Cush. 1, the defendant told men at work for a contractor building a house for the defendant, who were refusing to work because their wages were in arrears, to go on with the work and they should be paid in full; and it was held that the promise to pay for future work was severable from that to pay the amount then due, and enforceable. In Green v. Price, 13 M. W. 695, the covenant was not to carry on a particular trade in London or Westminster, or within 600 miles from the same. The provision as to 600 miles was void as in general restraint of trade, but the covenant as to London and Westminster valid. Other illustrations are found in the cases cited. See Oregon etc. Co. v. Winsor, 20 Wall. 64, 71; Nicholls v. Stretton, 10 Q.B. 343.
In some of the cases a distinction is made between the effect of separable promise that is merely unenforceable and one illegal, as *440 an agreement to do something in violation of law; but this point need not be considered, because the stipulation in question, that Piper would not claim damages for injury, was not forbidden by law. "It is not like a contract to do an illegal act; it is merely a covenant which the law will not enforce; but the party may perform it if he chooses." Pollock, C. B, in Green v. Price, 13 M. W. 695, 699. Even if the stipulation is unenforceable, it does not purport to bind Piper to any act forbidden by law, morals, or public policy. No statute required him to sue the railroad after his injury, or imposed a penalty upon him for refraining from so doing. If, recognizing that the privilege in the train-shed was granted upon the condition that he would make no claim for damages for injury through the defendants' negligence, after the accident he had done as he agreed he would do (if he did so agree), and had executed a valid discharge to the defendants of all claim for damages, he would have violated no rule of the common law, no provision of the statutes, and no canon of morality. There is even promise of ultimate honor for one "that sweareth to his own hurt, and changeth not." The stipulation as to the defendants' personal negligence is therefore neither illegal nor immoral. At most, it is simply voidable — unenforceable.
The agreement to release from the defendants' personal negligence is severable from the agreement to release from the negligence of their servants, and if unenforceable does not affect the valid agreement for which Piper has received the full agreed consideration. The defendants have paid Piper the full consideration of the contract, "it may well be that they can call on him to perform all of his agreements except such as are unlawful. In such case they would merely waive or forego a part of what they were to receive, and recover or enforce the rest." Bishop v. Palmer,
2. As this personal action did not survive at common law, the right of the plaintiff's administratrix to prosecute it is determined by the statute upon the subject at the time of his death. All provisions claimed to be material are contained in seven sections of chapter 191 of the Public Statutes, which are as follows:
"Sect. 8. Actions of tort for physical injuries to the person — although inflicted by a person while committing a felony — and the causes of such actions, shall survive to the extent, and subject to the limitations, set forth in the five following sections, and not otherwise.
"Sect. 9. If such an action is pending at the time of the decease *441 of one of the parties, it shall abate and be forever barred, unless the administrator of the deceased party, if the deceased was plaintiff, shall appear and assume the prosecution of the action before the end of the second term after the decease of such party, or, if the deceased party was defendant, unless the plaintiff shall procure a scire facias to be issued to the administrator of the deceased party before the end of the second term after the original grant of administration upon his estate.
"Sect. 10. If an action is not then pending and has not already become barred by the statute of limitations, one may be brought for such cause at any time within two years after the death of the deceased party, and not afterwards.
"Sect. 11. The damages recoverable in any such action shall not exceed seven thousand dollars.
"Sect. 12. If the administrator of the deceased party is plaintiff, and the death of such party was caused by the injury complained of in the action, the mental and physical pain suffered by him in consequence of the injury, the reasonable expenses occasioned to his estate by the injury, the probable duration of his life but for the injury, and his capacity to earn money, may be considered as elements of damage in connection with other elements allowed by law.
"Sect. 13. In such case, the damages recovered, less the expenses of recovery, shall belong and be distributed as follows:
I. To the widow or widower of the deceased, on half thereof; and to the children of the deceased the other half in equal shares.
II. If there be no child, to the widow or widower, the whole thereof.
III. If there be no child and no widow or widower, to the heirs-at-law of the deceased according to the law of distribution.
"Sect. 14. All other actions and causes of action existing in favor of or against a deceased person, except those for the recovery of penalties and forfeitures of money under penal statutes, shall survive, and may be prosecuted or defended by his administrator."
The last section abrogates the common-law rule as to all actions except those under penal statutes and those included in the preceding sections. This action of tort for personal injuries is not helped by section 14. Under section 8 and the five following sections, the legislature dealt with two subjects: pending actions for personal injuries, and the causes of such actions where none had been brought at the time of death.
"Section 9 relates to the survival of such an action pending at the decease of the party." Poff v. Telephone Co.,
The general rule of grammar and law is that relative terms refer to the next preceding antecedent, unless it is clear from the context that a different one was intended. Holt v. Smart,
Since 1844, actions pending at the death of the party have survived to his administrator, whether the cause of action did or did not survive at common law. Laws 1844, c. 139; G.L., c. 198, s. 16; Ib., c. 226, s. 12; Saltmarsh v. Candia,
The common-law rule that no action could be founded on the death of a human being (Chaloux v. Paper Co. ante, 281) was partially modified by the proceeding by way of indictment against a railroad if the life of any person not in their employment should be lost through the negligence of the railroad or its employees (Laws 1850, c. 953, s. 7), and appears to have been disregarded by the provincial statute requiring towns to make payment in certain cases for the death of a person through the insufficiency of a highway. Prov. Laws, ed. 1716, p. 151; Prov. Laws, ed. 1771, c. 98, s. 6. The provincial statute was repealed in 1786. Wheeler v. Troy,
It is probable that sections 10 to 13, of chapter 191, were intended to remove this anomaly, and that the only subject intended to be affected thereby was the causes of action for personal injury in which no suit had been brought at the death of the party. This seems apparent from the marginal references to the statutes of 1887, 1879, and section 14, chapter 282, General Laws, none of which refer to pending actions. It is not probable that, by the mere grouping of the two subjects under one head, it was intended to incorporate special provisions theretofore relating solely to suits brought after death — a comparatively modern innovation — into the provisions relating to the survival of pending actions, which had remained unchanged in effect for nearly half a century. A change of that character will not be intended from a revision, except from a substantial change in phraseology clearly indicating an intent to change the law. Noyes v. Marston,
3. At the close of the opinion filed in this case in April, 1909, it was suggested that the majority of the court thought that upon a further trial the voluntary character or otherwise of the contract between the railroad and the Express Company might be controlling. This statement was erroneous and is withdrawn. The opinion filed in which two members of the court concurred proceeded upon grounds entirely independent of the Express Company contract. The third member of the court who concurred in the result did so upon the ground that the plaintiff could not take advantage of voidable provisions in the contract between the Express Company and the railroad unless he showed that the Express Company relied upon such invalidity, as an answer to their covenants of indemnity. In either view, the only material question is the validity of Piper's agreement to release the railroad from the payment of damages for an injury occasioned by the negligence of their servants. It is clear that upon the ground upon which the case has been decided the invalidity or otherwise *445
of the indemnity provisions of the Express Company contract is immaterial. This conclusion renders immaterial the rulings as to the issues upon this point which should be submitted to the jury and as to the burden of proof thereon, and disposes of the other issues suggested and the ruling requested by the plaintiff as to matters of fact claimed to bear upon the validity of the Express Company contract. Though the contracts may contain voidable or non-enforceable covenants, they are not entirely void. Clements v. Marston,
4. The defendants' pleading was entitled a "brief statement." It neither began nor concluded as a special plea. Having taken advantage of the statute abolishing special pleading, they cannot now claim the benefit of a special plea, if there is any. Treating the action of the court in sustaining the demurrer to the brief statement (which was not demurrable) as the granting of a motion to reject the brief statement, technically the defendants were not harmed by the procedure, if they could have introduced the evidence under the general issue, of which there does not seem to be much doubt. Gould Pl., c. 6, s. 55. But whether this be so or not, as the parties had in effect submitted to the trial court the competency of the contracts as an answer to the action, and the defendants had acquiesced in the ruling understanding they were protected by their exception, justice seemed to require they should have the benefit of it. The case therefore stands as though, under appropriate pleadings, the defendants had offered the contracts as a bar to so much of the plaintiff's action as depended upon negligence of the defendants' servants and excepted to their exclusion. The exclusion being error, and it being impossible to say that the verdict was not founded upon the ground to which the excluded evidence might be an answer, the ordinary result would be the setting aside of the verdict and the order of a new trial.
When the case was here before it appeared to stand upon negligence of the defendants' servants. That being the case, if there were no answer to the excluded evidence the case would be disposed of by the proof; while if the plaintiff was able to destroy this evidence by other competent evidence, the bar set up by the defendants would be overthrown and the plaintiff entitled to judgment upon the questions of fact in the decision of which no error was found. The questions which it was understood might "arise under the contracts" were their execution and the answer to *446
them, if the plaintiff was able to make any. These issues are entirely distinct from the extent of Piper's injury, the negligence of the defendants' servants as its cause, his care, and the validity of the special release, all of which appear to have been properly determined. The situation appeared specially adapted for the application of the doctrine of Lisbon v. Lyman,
The case stands upon the general issue. The allegations or admissions of the brief statement are not evidence for the plaintiff[.] Consequently the plaintiff's case must be proved as if no brief statement were filed. Solomons v. Chesley,
In connection with this issue, the defendants asked the court to submit an issue as to Piper's care. This the court refused, upon the ground that that question had been determined, and the defendants excepted. Whether all or a part only of the issues in a case shall be tried at one time, and which shall be tried first, is ordinarily a question of fact for the trial court. Owen v. Weston,
5. It was ruled, subject to the plaintiff's exception, that the contracts between Piper and the Express Company were found to exist at the former trial, and that the jury should now treat them as existing facts. If the ruling is to be understood to mean merely that such proof had been given as would entitle the defendants to read the contracts to the jury, it was without error. If it can be construed to preclude the plaintiff from destroying the force of the contracts by competent evidence, to that extent there is error. Although excluded at the former trial as a bar to the action, the contracts were put into the case as having some tendency to support the validity of the release executed by Piper after the accident. The determination of the jury that the release was invalid does not of necessity include a finding that the contracts offered to support it are valid.
The plaintiff does not tender any issue of fraud or imposition as to these contracts, and it is inferred that no such claim is made. "When a party enters into a written contract, in the absence of fraud or imposition he is conclusively presumed to understand the terms and legal effect of it, and to assent to them." Rice v. Company, 2 Cush. 80, 87; Brown v. Insurance Co.
The defendants' exception to the refusal to submit an issue as to the plaintiff's care is sustained in part. The other exceptions are overruled.
Case discharged.
BINGHAM AND PEASLEE, JJ., dissented from the conclusion in part 3, but concurred as to the rest: the others concurred. *449