60 N.J.L. 246 | N.J. | 1897
The opinion of the court was delivered by
The question reserved in this case is one of great interest, and is presented for determination for the first time in this court.
The proof of the execution by the defendant company of the instrument on which the action is brought, which instrument contains plain stipulations-for indemnifying the plaintiff company for losses arising from injuries done by it to its employes or the passengers carried by it, and the proof that such losses had occurred as were thus intended to be indemnified against, sufficiently established plaintiff’s right to recover the stipulated indemnity unless the instrument is not in the eye of the law a valid contract.
It is obvious that the trial judge entertained doubts of the validity of the instrument in question, for although no objection appears to have been made on the part of the defendant upon that point, he has deemed it necessary to submit it for determination to the full bench. The attitude of the defendant at the trial has been maintained in this court, for its counsel has presented no argument and made no claim that the instrument is not a binding and enforceable contract. The result is that our examination of the question has not been aided by the researches of counsel maintaining its negative, but only of counsel supporting its affirmative. For this reason I have given the question as close an examination as time would permit lest something bearing thereon might be overlooked.
The proposition which one would assert who contested the validity of such a contract would obviously be this, namely, that a contract whereby a common carrier of passengers is to
It is admittedly difficult, if not impossible, to formulate a satisfactory statement of what is meant by the words “public policy.” Mr. Justice Kekewich declared that it does not admit of definition and cannot be easily explained. Davies v. Davies, 36 Ch. Div. 359.
That the law has recognized one sort of public policy as a foundation for its judgment at one period, and another sort at another period, is undoubted. It is amusingly shown by Lord St. Leonards in Egerton v. Brownlow, 4 H. L. Cas. 1. Speaking of a case from the Year-Books, he says (at p. 238): “ It was on an obligation with a condition that if a man did not exercise his craft of a dyer within a certain town—that is, where he carried on his business—for six months, then the obligation was to be void, and it was averred that he had used his art there within the time limited; upon which Mr. Justice Hull, being uncommonly angry at such a violation of all law, said, according to the book : ‘Per Dieu, if he were here, to prison he should go until he made fine to the king, because he had dared to restrain the liberty of a subject.’ Angry as the learned judge was at that infraction of the law, what has been the result of that very rule without any statute intervening? That the common law, as it is called, has adapted itself upon grounds of public policy to a totally different and limited rule that would guide us at this day, and the condition which was then so strongly denounced is just as good a condition now as any that was ever inserted in a contract, because a partial restraint created in that way with a particular object is now perfectly legal.” Another illustration occurs with respect to the obligations imposed by law founded on public policy, on common carriers of goods. Originally they were insurers of the safety of the goods against every loss except such as occurred by the act of God or the public enemy,
From these varying applications of the principle called public policy, I think it obvious that no accurate definition of that phrase can be devised in respect to any particular matter. In my judgment, the best that can be done is to say that since the law abhors conduct injurious to the public interest or antagonistic to the public good, the courts will' decline to enforce contracts which at the time they are presented for consideration require or involve conduct against public interest and public good. Such is the result of my consideration of the matter after examining many cases which exhibit the variant views taken by courts upon this subject, which variance is no more strikingly indicated than in the case of Egerton v. Brownlow, before cited.
My researches have not been rewarded with the discovery of many expressions of judicial opinion or by many adjudications on the question reserved in this case. Obvious reasons exist why the judicial consideration of such a question would be infrequent. In actions upon contracts of indemnity such as that on which this action is founded, the insured raises no question as to the validity of the contract; the insurer, if as usual it is a company engaged in and seeking profit by making such contracts of insurance, is equally adverse to setting up or maintaining that the contracts by which its profits are made are in the eye of the law void.
Adjudications and judicial opinions upon a class of contracts which seem to me to bear a strict analogy to those contracts, one of which is before us, are not infrequent. As before stated, common carriers of goods may, by contract with
The only reason which I find possible to conceive to be capable of being urged in support of the proposition that the contract before us in this cause is contrary to public policy, is that the indemnity thereby provided for a common carrier of passengers may tend to render him less careful in the performance of his duty to his passengers than he otherwise would be. It is obvious that such is not the purpose of the contract for indemnity. The insurer does not contemplate the relaxation of the carrier’s vigilance which would tend to throw additional liability upon him. The insured is held to the performance of his duty of vigilance both by his liability, notwithstanding the indemnity, and by the fact that the vigilant carrier would obtain better terms in making the contracts of insurance.
It is further obvious that if a contract indemnifying the common carrier of passengers against liability arising from
Various kinds of insurance against loss by fire or loss by perils of the sea would seem to be open to a like charge of a tendency to encourage negligence which, at least when the policies are held as they so frequently are as collateral security for obligations of the insured, may be well argued to be against the public interest, and therefore void as against public policy. But no trace of any such claim can be found in text-books or adjudications.
With respect to such contracts of insurance as that with which we are dealing, I have found but two expressions of judicial opinion in the books and reports. In the case of Delanoy v. Robson, 5 Taunt. 605, upon a motion to settle the venue it incidentally appeared that the action was upon a contract of somewhat such character and the reporter states a quaere as to whether an insurance against damages that a shipowner might be liable to pay in consequence of his ship running down another, be not illegal, and it is said, per curiam, “ it would be an illegal insurance to insure against what might be the consequence of the wrongful acts of the accused.” This ease affords no aid in the solution of the question both because the question was not directly presented but only incidentally considered, and because what the court said may well be deemed limited to acts of the insured which were actively wrongful in distinction from being merely negligent.
There is, however, an adjudication precisely in point in which the question thus arose: An incorporated company authorized, among other things, to issue contracts of indemnity of the same character as that before us, became insolvent; its business had not been confined to making such contracts, but had extended to other contracts of indemnity, and the court in distributing the assets had before it creditors whose claims arose from other forms of contracts than those arising upon such contracts of insurance. In behalf of the other creditors the court was urged to declare that the creditors who claimed upon such contracts of insurance should not be admitted to
The result is that the reserved question must be answered in favor of the validity of the contract upon which this action is founded, and as the special finding of the trial judge shows that he had assessed the damages of the plaintiff at the sum of $978.36, judgment should be ordered entered for the plaintiff for that sum.
It is proper to observe that the decision of this court in Kinney v. Central Railroad Co., 3 Vroom 407, and of the Court of Errors in the same case (5 Id. 513), are not at all antagonistic to the views above expressed. It was held in both courts that where a common carrier of passengers agreed