147 N.Y.S. 360 | N.Y. App. Div. | 1914
Lead Opinion
Plaintiff, who is a resident of Pine Island, N. Y., owning and running a dairy there, was at Chicago and had twenty-three head of cattle which he desired to ship to his home. At
“ That said shipper, or the consignee, is to pay freight thereon to the said carrier at the rate of 28 per 100 § which is the lower published tariff rate based upon the express condition that the carrier assumes liability on the said Live Stock to the extent only of the following agreed valuation upon which valuation is based the rate charged for the transportation of the said animals, and beyond which valuation neither the said carrier nor any connecting carrier shall be liable in any event, whether the loss or damage occur through the negligence of the said carrier or connecting carriers, or their employees, or otherwise^ * * *
“ If cattle or cows — not exceeding $75 each. * "x* *
“And in no event shall the carrier’s liability exceed $1,200 upon any car load fjj * * *
“ That the said shipper is at his own sole risk and expense to load and take care of, and to feed and water, said stock whilst being transported, whether delayed in transit or otherwise, and to unload the same; and neither said carrier nor any connecting carrier is to be under any liability or duty with reference thereto, except in the actual transportation of the same. * * *
“ And it is further agreed by said shipper that in consideration of the premises and of the carriage of a person or persons in charge of said stock upon a freight train of said carrier or its connecting carriers without charge other than the sum paid or to be paid for the transportation of the Live Stock in his or their
“And S. G. Willcox do hereby acknowledge that [he] had the option of shipping the above described Live Stock at a higher rate of freight according to the official tariffs, classifications and rules of the said carrier and connecting carriers, and thereby receiving the security of the liability of the said carrier and connecting railroad and transportation companies as common carriers of the said Live Stock, upon their respective roads and lines, but have voluntarily decided to ship the same under this contract at the reduced rate of freight above first mentioned.”
Upon the back thereof was the following:
“Release for Man or Men in Charge.
‘1 In consideration of the carriage of the undersigned upon a freight train of the carrier or carriers named in the within contract without charge, other than the sum paid or to be paid for the carriage upon said freight train of the live stock mentioned in said contract, of which live stock I am in charge, the undersigned do hereby voluntarily assume all risk or accident of damage to my person or property, and do hereby release and discharge the said carrier or carriers from every and all claims, liabilities and demands of every kind, nature and description, for or on account of any personal injury or damage of any kind sustained by the undersigned so in charge of said stock, whether the same be caused by the negligence of the said carrier or carriers, or any of its or their employees, or otherwise.
“ (Signed) SMITH G. WILLCOX, Signature of
“J. Markey, Man in charge.
“ Witness. ”
Plaintiff having executed said papers, the cattle were shipped thereunder upon a freight train of the defendant, and
At the close of the plaintiff’s case defendant moved to dismiss.
The motion was denied and exception taken. The defendant thereupon offered certain rates, schedules and classifications filed with the Interstate Commerce Commission. It was conceded that this railroad company had duly filed and complied with whatever the Interstate Commerce Act makes necessary in reference to the conduct of its business and that its rates, schedules and classifications and whatever the statute requires have been duly filed in the several States through which it operates, New York, Illinois and Ohio.
From the matters so offered appear the following:
“Rules and Specifications.
“Unless otherwise provided when property is transported subject to the provisions of the Official Classification, the acceptance and use are required, respectively, of the * * *
‘Uniform Live Stock Contract,’ * * * ‘Contract with man or men in charge of Live Stock ’ '(for use when payment of fare is not required) * * *.
“18. Where the classification provides that man or men in charge of property shall pay full fare, the fare charged will be first (not second) class passenger fare. * * * ” There was inserted the “ Uniform Live Stock contract ” and the form of the “ Contract with Man or Men in charge of Live Stock (for use when payment of fare is not required),” copies of which were attached to the complaint and which the plaintiff signed.
“7. Live Stock-
“ 8. Domestic Animals, Carloads, subject to rates and regulations of individual carriers; also subject to the Uniform Live Stock Contract and the following regulations. * * *
“ Live Stock in carloads will be charged at the following minimum carload weights, subject to the actual weight if greater than the minimum carload weight, * * * Cattle per car, 20,000 lbs. * * *"
“Live Stock will be taken at the reduced rates fixed in the tariff only when a Uniform Live Stock Contract is executed by the station agent and the consignor, and when the release on the back of said, contract is executed by man or men who are to accompany said live stock. If consignor refuses to execute a Uniform Live Stock Contract, the live stock will be charged ten (10) per cent higher than the reduced rates specified herein; provided, that in no case shall such higher charge be less than one (1) cent per one hundred pounds. * * *
“The rates and classification of Live Stock as given in this tariff are based upon the following maximum valuations:
“If Cattle or Cows, not exceeding $75 each. * * *
“ The owner or his agent may accompany each consignment of horses or mules, carloads or less, to care for same, and will be carried free. One man may be carried free in charge of and going with each consignment -of cattle, calves, *hogs, goats or sheep, when in carloads, to care for them. The permit'or authority to ride free to be good only on train with such stock. No free return passage tobe given. Men in charge of live stock, entitled to free transportation under the provisions of the live stock classification, will be carried free only upon presentation of permits therefor signed by the railroad agents at points of shipment; it being understood that railroad companies reserve the right- to reject or refuse, through their agents, to issue such orders or permits for free transportation to any person or party who, in the opinion of said agents, is not considered a responsible party or proper attendant.”
The rate on the schedule filed by the Erie railroad from Chicago to Pine Island, N. Y., for cattle is twenty-eight cents per 100 pounds in carloads.
The case was thereupon submitted to the jury who returned a verdict for the plaintiff for $2,500. Subsequently the motion to direct a verdict for the defendant was denied and an exception granted to the defendant. No motion was made for a new trial. This appeal is taken from the judgment.
So far as this court is concerned, no question of negligence or of the amount of the recovery is argued. The question is one of law; whether, under the provisions of the contract and release exempting" the defendant from liability, the plaintiff can, nevertheless, recover damages for injuries caused by the negligence of the defendant or its employees. I will consider this-under two heads: (1) the State laws; (2) under the Interstate Commerce Act.
1. It is the settled law of the State of New York that a per-i son riding upon a drover’s pass is a gratuitous passenger and /that a- release from liability for injury caused by the negligence Í of the carrier or its servants is valid and bars recovery. (Bissell v. N. Y. C. R. R. Co., 25 N. Y. 442; Poucher v. N. Y. C. R. R. Co., 49 id. 263; Hodge v. Rutland R. R. Co., 112 App. Div. 142; 115 id. 881; affd., 194 N. Y. 570.)
It is the settled law of Illinois that such a person is a passenger for hire; that the release is invalid and the carrier liable for 1 injuries received by reason of its or its employees’ negligence. (Illinois Central R. R. Co. v. Beebe, 174 Ill. 13; Illinois Central R. R. Co. v. Anderson, 184 id. 294.)
This contract was made and release executed in Illinois where it was invalid, the injury occurred in Ohio where it was invalid, and the action is brought in New York where, if made, it would have been valid.
In Dike v. Erie R. Co. (45 N. Y. 113) the court said: “ The lex loci contractus determines the nature, validity, obligation and legal effect of the contract, and gives the rule of construction and interpretation, unless it appears to have been made with reference to the laws and usages of some other State or government, as when it is to be performed in another place, and then in conformity to the presumed intention of the parties, the law of the place of performance furnishes the rule of interpretation. ”
In Fish v. Delaware, Lackawanna & Western R. R. Co. (158 App. Div. 92) the plaintiff while traveling on a drover’s pass, pursuant to a contract and release, from Jackson, Mich., to Ballston Spa, N. Y., by way of defendant’s railroad from Buffalo to Binghamton, was injured at Elmira in the State of New York. Mr. Justice Lyor writing for the Appellate Division in the Third Department said: ‘c Under the decisions of this State the contract and release are valid [citing the Hodge Case, supra] * * * [It was] conceded that ‘ if the law of Michigan controls, the contract is invalid; if the law of New York, it is valid.’ "x" * * A similar contract and release were held to be invalid in the State of Michigan in the case of Weaver v. Ann Arbor Railroad Co. (139 Mich. 590), which was an action brought to recover damages on account of personal injuries sustained by plaintiff who was being transported within the State. * "x" * The court held that the plaintiff was rightfully riding as a passenger for hire, and that the release executed by him was invalid upon grounds of public policjy and that the defendant as a common carrier of passengers could not lawfully stipulate for exemption from responsibility for its own negligence.” The court also quoted from Hughes v. Pennsylvania R. R. Co. (202 Penn. St. 222): “Where;a contract containing a stipulation limiting liability for negligence on the part of a common carrier, is made in one State, but
In Grand v. Livingston (4 App. Div. 589; affd. on opinion below, 158 N. Y. 688) plaintiff shipped at Boston a quantity of horses to be transported to Buffalo under a contract or release there executed exempting the carrier from liability for injury caused by its negligence or that of its agents or servants. Mr. Justice Adams said: “This instrument is as broad and comprehensive in its terms as language can possibly make .it, and, if valid] amounts to an absolute release of the defendant from all liability for duty .omitted, as well as for affirmative acts of negligence, however gross may be their character. Such a contract has. never been recognized as possessing any validity in the State of Massachusetts [citing cases]; while, upon the other hand, the courts of this State have held, and . it is now the accepted law of the State, that carriers may, by express stipulation, limit their common-law liability to the extent of relieving themselves from the consequences of their negligent acts. ”
He held that the contract was to be interpreted according to the law of Massachusetts and the plaintiff was entitled to recover.
In Valk v. Erie R. R. Co. (130 App. Div. 446) the action was against a common carrier for the destruction of goods by fire, while in transit, in the warehouse of the defendant on the dock at Buffalo. The goods were being transported from Chicago under a through bill of lading to New York. The bill of lading
From these cases it clearly appears that the validity of the contract and release is to be construed either according to the law of the State of Illinois, where they were executed, or by the law of the State of Ohio, where the accident and injury occurred. In no event is the law of this State applicable. It, therefore, follows that, considering the case as arising and to be determined under the State laws, the contract and release being invalid both by the laws of Illinois and Ohio, the motion to direct a verdict by the defendant was properly denied and the judgment should be affirmed.
2. The defendant claims that the case comes within the Interstate Commerce Law, which is exclusive; that it had duly filed with the Interstate Commerce Commission its schedules,
“ First. That a common carrier cannot lawfully stipulate for
“ Secondly. That it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants.
“ Thirdly. That these rules apply both to carriers of goods and carriers of passengers for hire, and with special force to the latter.
“ Fourthly. That a drover travelling on a pass, such as was given in this case, for the purpose of taking care of his stock on the train, is a passenger for hire.”
The rule that a person rightfully riding on a drover’s pass is a passenger for hire has been laid down in most of the States of the Union. (See Elliott Railroads, § 1605.) Chicago, Milwaukee, etc., Railway v. Solan (169 U. S. 133), decided in 1898, was an action brought in Iowa where a statute prohibited any contract, receipt, rule or regulation which exempted a common carrier from liability. Plaintiff wa's a drover traveling on a contract expressly stipulating that the company should in no event be liable for any injury to his person in any amount exceeding $500. Plaintiff was injured and recovered a verdict of $1,000. The company took the case tó the United States Supreme Court. In affirming Gray, J., said: “By the law of this country, as declared by this court, in the absence of any statute controlling the subject, any contract by which a common carrier of goods or passengers undertakes to exempt himself from all responsibility for loss or damage arising from the negligence of himself or his servants is void as against public policy, as attempting to put off the essential duties resting upon every public carrier by virtue of his employment, and as tending to defeat the fundamental principle on which the law of common carriers was established — the securing of the utmost care and diligence in the' performance of their important duties to the public. [Citing cases.] In the leading case of Railroad Co. v. Lockwood, above cited, it was accordingly adjudged that an agreement in writing with a railroad company, by which a drover travelling with his cattle upon one of its trains, in consideration of his cattle being carried at less rates, stipulated to take all risk of injury to them and of per
1 ‘ The question of the right of a railroad corporation to contract for exemption from liability for its own negligence is, indeed, like other questions affecting its liability as a common carrier of goods or passengers, one of those questions not of merely local law, but of commercial law or general jurisprudence, upon which this court, in the absence of express statute regulating the subject, will exercise its own judgment, uncontrolled by the decisions of the courts of the State in which the cause of action arises. But the law to be applied is none the less the law of the State; and may be changed by its Legislature, except so far as restrained by the Constitution of the State or by the Constitution or laws of the United States. * * * ”
These, decisions declaring public policy upon the question by the Supreme Court of the United States were delivered before effective and exclusive interstate commerce legislation by Congress. The original Interstate Commerce Act of February 1, 1887, was amended by the act of June 29, 1906, which took effect sixty days thereafter (24 U. S. Stat. at Large, 379, chap. 104, as amd. by 34 id. 584, chap. 3591; Id. 838, Res. No. 47). The 20th section as amended, generally referred to as the Carmack Amendment to the Hepburn Bill, is as follows:
“ That any common carrier, railroad or transportation, company receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it or by any common carrier, railroad or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule or regulation shall exempt such common carrier, railroad or transportation company from the liability hereby imposed * * (24 U. S. Stat. at Large, 386, § 20; amd. by 31 id. 593, 595, §1)
The effect of that amendment upon stipulations limiting liability for loss of goods by carriers based upon valuation
But it is important to examine the basis of the argument in those cases to see whether it is applicable to the case at bar. In the Croninger Case (supra) Lurton, J., said: “ That a common carrier cannot exempt himself from liability for his own negligence or that of his servants is elementary. York Mfg. Co. v. Illinois Central Railroad, 3 Wall. 107; Railroad Company v. Lockwood, 17 Wall. 357; Bank of Kentucky v. Adams Express Company, 93 U. S. 174; Hart v. Pennsylvania Railroad, 112 U. S. 331, 338. The rule of the common law did not limit his liability to loss and damage due to his own negligence, or that of his servants. That rule went beyond this and
In the Carl Case (supra) the court said: “If such a valuation be made in good faith for the purpose of obtaining the lower rate applicable to a shipment of the declared value, there is no exemption from carrier liability due to negligence forbidden by the statute when the shipper is limited to a recovery of the value so declared.”
These cases, therefore, while upholding a limitation of liability based on value, instead of reversing, reassert the public policy steadily announced by the Supreme Court, that a carrier may not relieve himself of all liability for his own negligence. •
In Santa Fe Railway v. Grant Bros. (228 U. S. 177) (decided April 7,1913) the Supreme Court of the United States again announced its position in the most emphatic manner, Mr. Justice Hughes saying: “It is the established doctrine of
In Missouri, K. & T. Railway v. Harriman (227 U. S. 657) the court said: “ The liability imposed by the statute is the liability imposed by the common law upon a common carrier, and may be limited or qualified by special contract with the shipper, provided the limitation or qualification be just and reasonable, and does not exempt from loss or responsibility due to negligence.” (Citing cases.)
Because the Interstate Commerce Act makes provision for the filing of tariffs, etc., and contains a provision for passes to drovers, the appellant argues that the release is valid. In addition to the Carmack Amendment, quoted supra, the only provisions of the Interstate Commerce Act of February 4,1887, as amended by the act of June 29,1906, and by the act of June 18, 1910, at all applicable, seem to be the following, which took effect sixty days thereafter:
“Section 1. * . * * And it is hereby made the duty of all common carriers, subject to the provisions of this Act, to estab
“No common carrier subject to the provisions of this Act, shall, after January first, nineteen hundred and seven, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except to its employees and their families, its officers, agents, surgeons, physicians, and attorneys at law; "x‘ * * to necessary care takers of live stock, poultry, milk and fruit * * *. Any common carrier violating this provision shall be deemed guilty of a misdemeanor and for each offense, on conviction, shall pay to the United States a penalty of not less than one hundred dollars nor moz-e than two thousand dollars, and any person, other than the persons excepted in this provision, who uses any such intez-state free ticket, fz-ee pass, or free transportation shall be subject to a like penalty.” (See 24 U. S. Stat. at Large, 379, § 1, as amd. by 34 id. 584, § 1, and 36 id. 544, 546, 547, § 7. See, also, 35 id. 60, chap. 143.)
“Sec. 6. That every common can-ier subject to the provisions of this Act shall file with the Commission created by this Act and print and keep open to public inspection schedules showing all the rates, fares and charges for transportation between different points on its own route and between points
“No carrier, unless otherwise provided by this Act, shall engage or participate in the transportation of passengers or property, as defined in this Act, unless the rates, fares and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this Act; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs than the rates, fares, and charges which are specified in the tariff filed and in effect at the time; nor shall any carrier refund or remit in any manner or by any device any portion of the rates, fares, and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs.” (See 24 U. S. Stat. at Large, 380, § 6, as amd. by 34 id. 586, 587, § 2, and 36 id. 548, § 9.)
In Southern Pacific Co. v. Schuyler (227 U. S. 601) the intestate, an employee of the railway mail service, not on duty, was killed by the derailment of the train on which he was riding, with the knowledge of the train agent and conductor, on a certificate signed by the Postmaster-General. The defense was that he was not traveling on official business that entitled him to free transportation under his commission, and that in riding free he was violating the act of Congress of June 29, 1906, which forbids common carriers subject to the
We are of the opinion that the appellant derives no help from the Interstate Commerce Law. The act itself only authorizes just and reasonable terms, “ and every such unjust and unreasonable classification, regulation and practice * * is prohibited and declared to be unlawful.” (See § 1, as amd. supra.)
In the light of the repeated acts of Congress covering the safety of passengers and providing for compensation for employees injured while engaged in interstate commerce, and the repeated declarations of the Supreme Court of the Unitéd States that contracts and releases of liability for the negligence of carriers are against public policy, it is unthinkable that that policy can be held to have been subverted by the mere filing of the form of the papers with the Interstate Oom
The judgment appealed from should be affirmed, with costs.
Laughlin and Scott, JJ., concurred.
Concurrence Opinion
(concurring):
I concur in the affirmance of this judgment. By the Interstate Commerce Law, as amended in 1906, 1908 and 1910 (24 U. S. Stat. at Large, 379, chap. 104, as amd. by 34 id. 584, chap. 3591; Id. 838, Res. No. 47; 35 id. 60, chap. 143; 36 id. 539, chap. 309), Congress has, it seems to me, taken control of the subject of interstate commerce, and the action of Congress is, therefore, conclusive. By section 1 of that act it is provided that “ The provisions of this Act 'shall apply to * "x" * any common carrier or carriers engaged in the transportation of passengers or property wholly by railroad * * * from one State or Territory of the United States or the District of Columbia, to any other State or Territory of the United States or the District of Columbia * * *; and .it shall be
The defendant, as a common carrier, was bound to transport for the plaintiff his live stock from .the State of Illinois to the State of New York. For such service, which included the transportation of the live stock and the transportation of -the plaintiff as the caretaker, it was entitled to recover the reasonable compensation as had been established under the provisions of the act of Congress. If the charges for this service were unjust and unreasonable, Congress has declared such a
In this case the question is whether the contract signed by the parties is valid or enforcible. Under the act of Congress plaintiff was entitled to have his goods transported. Where a contract was made in the performance of that duty imposed by Congress, such contract was, I think, to be governed and construed by the Federal law under which it was executed.
Assuming, therefore, that the contract under which this shipment was made was under the control of the laws of the United States, the question whether or not such a contract as was made by the plaintiff in this case relieving the carrier from liability for its own negligence was void must, as I [view it, depend upon the laws of the United States and not upon the laws of the State in which the contract was made or the States through which it was to operate. There can be no question but what the Supreme Court of the United States has consistently held such a contract to be void as against its public policy. Since the case of Railroad Co. v. Lockwood (17 Wall. 357) such contracts have been absolutely void and unenforcible in the courts of the United States. In that case the conclusion was based upon the proposition that a common carrier cannot lawfully stipulate for exemption from responsibility when such exemption is not just and reasonable in the eye of the law; that it is not just and reasonable in the eye of the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants; that a drover traveling on a pass, such as was given in
By section 6 of the Interstate Commerce Act, as amended, it is provided: “That every common carrier subject to the provisions of this Act shall file with the Commission created by this Act and print and keep open to public inspection schedules showing all the rates, fares and charges for transportation between different points on its own route and between points on its own route and points on the route of any other carrier by railroad, by pipe line, or by water when a through route and joint rate have been established. * * *
No carrier, unless otherwise provided by this Act, shall engage or participate in the transportation of passengers or property, as defined in this Act, unless.the rates, fares and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this Act; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property, or for any service in connection
/ My conclusion, therefore, is that Congress has taken within its exclusive control all interstate commerce and that thereby the general law of the United States becomes applicable to interstate shipments; that by the law of the United States any contract exempting the carrier from liability for its own negligence or the negligence of its servants is unlawful and void, and that Congress has not by any provision validated such a contract. Therefore, it was no -defense to the action that the shipper had signed a contract relieving the carrier from liability for its own negligence//
It follows that the judgment was right and should be affirmed.
McLaughlin, J., concurred.
Judgment affirmed, with costs.