This doctrine is squarely held by New York, but the other courts which have passed upon the question have said they would not permit exemptions from liability for "gross negligence." Yet, in spite of the fact that literally negligence is negative and should exclude the idea of wilfulness, from the way the various tribunals have employed the words "gross negligence" and the general thought running throughout the context where they are found, it seems as though they had in mind some overt act of wilfulness, or bad faith, or fraud. Otherwise all distinction between the different bailments would inevitably be abolished. How could there be any justification for allowing borrowers, pledgees, and hirers of the different classes to narrow their obligations so as to be liable only for gross negligence, and not allowing depositaries and mandataries to change their liability in any particular? There is none. The courts could not have meant to announce such a principle. The different degrees of diligence, "high," "ordinary," and "slight,” are simply the degrees of diligence which the ordinary prudent man would exercise if he were a bailee of that particular class, and any failure to exercise that is negligence. Hence it is submitted that the courts do not intend sometimes to uphold a contract against negligence and at other times not; that negligence in this connection is not capable of division; and that what the courts mean by their exception is wilful, wanton, reckless, or criminal acts, which they call "gross negligence," though strictly not negligence at all. If this is their true meaning, these decisions in our country are in harmony with the English and continental holdings. If it is not their meaning, the statement above as to the weight of authority in the United States is not correct.1

But, whatever uncertainty there may be as to the actual position of the courts, there is no uncertainty in the mind of the writer as

172; Conway Bank v. Am. Ex. Co., 8 Allen (Mass.) 516; Smith v. Library Board, 58 Minn. 108; Gashweiler v. Wabash, etc., Co., 83 Mo. 112; Wells v. Porter, 169 Mo. 252; Kinney v. Central Railroad, 32 N. J. L. 407; Dale v. Lee, 51 N. J. L. 678; Alexander v. Greene, 3 Hill (N. Y.) 9, 7 Hill (N. Y.) 533; Hollister v. Nowlen, 19 Wend. (N. Y.) 234; Wells v. Steam. Nav. Co., 8 N. Y. 375; Moeran v. New York, etc., Co., 59 N. Y. Supp. 584; Nat. Cash Reg. v. Callais, 84 N. Y. Supp. 166. Contra, Lancaster v. Smith, 62 Pa. St. 47. See also Memphis, etc., Co. v. Jones, 39 Tenn. 517; Direct Nav. Co. v. Davidson, 74 S. W. Rep. 790; Kimball v. Rutland, etc., Co., 26 Vt. 247 ; Story, Bailments, §§ 19, 22, 31, 32, 66, 182a, 238; Lawson, Bailments, § 13; Schouler, Bailments and Carriers, § 20; Hutchinson, Carriers, §§ 14, 40.

1 Omaha, etc., Co. v. Chollette, 33 Neb. 143; Stringer v. Alabama, etc., Co., 99 Ala. 397; Kentucky, etc., Co. v. Gastineau, 83 Ky. 119; Louisville v. Filbern, 6 Bush (Ky.) 574.

to what ought to be their position. Progress among men has ever been from status to contract. It is the common judgment of mankind that it is best for the individual and the race to have freedom of contract indulged so far as possible. Therefore I maintain that, on general principles, parties should be allowed freedom of contract here, and thus contract for exemption from liability for negligence if they desire. Of course, if there is any rule of public policy that would be violated, this should not be allowed. But is there any rule of public policy which would object to contracts of this kind by ordinary bailees, that is, those pursuing avocations not affected with a public use or interest? The duties and obligations of these bailments cannot be thrown upon the bailees without their consent, and this being so, if they do consent to assume the duties, why should they not have the right to determine the nature of the same in every respect, and their responsibility for neglect thereof? It is true that such a contract might be a bad one for one of the parties, but so any contract that may be made is liable to be. Public policy does not yet forbid bad bargains. On the other hand, does it not seem like a harsh rule which, in addition to the gratuitous care of property, will make a depositary and mandatary liable for even gross negligence in spite of the stipulation of the parties? For the moment we will consider only the question of contracting against negligence, not including wilful and wanton acts, but using the term in its appropriate sense, in the words of Mr. Cooley, "the failure to observe for the protection of the interests of another person that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury." Public policy forbids only such contracts as are opposed to the public will, or tend to subvert the public welfare, like those tending to immorality, or to deprive the public of the services of citizens, or to influence the public service, or to interfere with public justice. A contract of the kind under consideration bears no resemblance to any of these. It has no tendency to be injurious to the public, or against the public good; nor would any principle of public welfare or morality be infringed. It would seem as though there could be but one answer to a question of this sort, and that is that public policy makes no objection whatever, as found in either legislation or common law, for the contract is concerned only with the property rights of the individuals to the contract. Public policy is in its nature uncertain and incapable of being defined with exactness; and where the contract

is not prohibited by constitution or statute the extension of the principle should be carefully guarded.1

So much for the contract aspect of the subject. Let us now look at its tort aspect. Here the argument from analogy is equally strong, for so far as the allowance of exemptions from liability is concerned the principles of the tort of negligence ought not to be different from those of other comparable torts. In other torts, it is well established, consent is always a good defense to an action. More than this, consent is even sometimes a defense to criminal prosecution. This is on the principle that that to which a person consents is not esteemed in law an injury. Volenti non fit injuria.

In a suit, or indictment, for false imprisonment, if it can be shown that the act was done with the consent of the party complaining, that is a complete bar to all proceedings.2 In an action for slander, or libel, all that the defendant need show by way of defense is consent to publication; even an agreement to accept an apology is sufficient. The principle was well established at the common law that a tenant could protect himself against an action for waste by a contract "without impeachment of waste." To an action of trespass, acquiescence, special contract, or leave and license, was always such justification as to defeat recovery. In the same way consent is a complete defense to a suit for conversion, or nuisance, or an assault and battery, unless the latter amounts to an injury to the public as well as to the individual, as in case of breach of the peace, when public policy renders the consent illegal.8

Likewise, in the English and some American courts, it has been held that by an express contract, or an implied one, a servant may release his master from all liability to the servant, where statutes

1 Egerton v. Brownland, 4 H. L. Cas. 1; Printing, etc., Co. v. Sampson, L. R. 19 Eq. 462, 465; Teal v. Walker, 111 U. S. 242; United States v. Trans-Missouri, etc., Co., 70 Fed. Rep. 201; Peterson v. Christiansen, 26 Minn. 377; Houlton v. Nichol, 93 Wis. 393.

2 Floyd v. State, 12 Ark. 43; Berry v. Adamson, 6 B. & C. 528; Ellis v. Cleveland, 54 Vt. 437.

3 Lane v. Applegate, 1 Stark. N. P. 97; Boosey v. Wood, 3 H. & C. 484; Schoupflin v. Coffey, 162 N. Y. 12.

Garth v. Cotton, 1 Ves. 524; Bowles' Case, 11 Coke 82 b.

5 Low v. Nettles, 2 Bailey (S. C.) 447; Windle v. Crescent, etc., Co., 186 Pa. St. 224; Lambert v. Robinson, 162 Mass. 34.

6 Powell v. Hoyland, L. R. 6 Exch. 67; Powers v. Klenzie, 15 Mont. 177.

7 Burkam v. Ohio, etc., Co., 122 Ind. 344; Woodward v. Seeley, 11 Ill. 157; White v. Manhattan, etc., Co., 139 N. Y. 19.

8 State v. Beck, 1 Hill (N. Y.) 363; O'Brien v. Cunard, etc., Co., 154 Mass. 272.

have not expressly forbidden it; although, if public policy were ever going to speak, it ought to be here, because of the interest which the state has in the servant as a citizen, who ought to be guarded from danger. But such a contract may be made either before the employment begins, or afterwards, or after the injury, if based upon sufficient consideration.1

If consent is allowed to destroy a person's cause of action in all the foregoing torts, why not in the case of the tort of negligence? And if consent will destroy the tort liability, where is the logic for the objection to a contract destroying, modifying, or supplanting that tort liability?

It should be noted at this point that in the illustrations hereinbefore referred to the consent and the contracts have affected only the parties thereto. The moment they affect third parties public policy steps in and declares them illegal, so that any contract to get a person to commit any of the torts enumerated would be void, whether the tort was negligence, or assault, or battery, or slander, or libel, or waste, or false imprisonment, or malicious prosecution, or conversion, or nuisance, or trespass. An agreement which contemplates a civil wrong to a third person is illegal.2

In conclusion, then, it is my judgment that in the bailments of deposit, mandate, commodatum, pledges and pawns, and the ordinary hirings, all the bailees should be allowed to exempt themselves from liability for negligence, whether it be called "slight," "ordinary," or "gross," unless prohibited by special statutory enactments, provided that is the plain meaning of the contract; and as to exemption from liability for other acts than those which are negligent, the general principles of torts, as indicated above, should be applied. However, up to the present time, all that we can say is that the cases in New York, England, and some other foreign countries, where the civil law has more influence, have gone as far as this. But the great majority of the holdings in this country lean in this direction, and the law of bailments has not yet reached its final form; so that, judging by the direction of its change and progress in the past, it may be prophesied that some time in the future it will be allowed to bailees of these classes to make as broad

1 Otis v. Penn. Co., 71 Fed. Rep. 136; Western, etc., Co. v. Bishop, 50 Ga. 465; Fulton, etc., Co. v. Wilson, 89 Ga. 318; Purdy v. Rome, 125 N. Y. 209; 20 Am. & Eng. Enc. 156.

2 Scott v. Brown, L. R. 2 Q. B. 724; Woodstock, etc., Co. v. Extension, etc., Co., 129 U. S. 643; W. Va. Trans. Co. v. Pipe-Line Co., 22 W. Va. 600.

us.

contracts as those referred to above, and to limit their common law liability of tort on the same principles as all other tort-feasors. When we come to common carriers, innkeepers, and other bailees affected with a public interest, a different question confronts In regard to these two considerations may enter. One is the fact that a public interest may be involved. These occupations and enterprises may involve the safety of the lives of the citizens of the state, reasonableness of rates, unjust discriminations, and other matters affecting the general public in addition to the private parties who may make the contract. The other consideration follows from this. Because of these public interests the public has a right to control and regulate the businesses and to restrict the freedom of contract. In other words, public policy applies here as it did not in the other bailments. In guarding these public interests, in England and in this country from the time of its earliest colonization, it has been the immemorial law that the public has a right to regulate stage lines, ferries, hackmen, railways, wharfingers, auctioneers, innkeepers, bakers, millers, and the like, and in so doing to fix a maximum charge for services rendered, accommodations furnished, and articles sold, although as to some of them the public had conferred no franchise. This law of the ages has been reaffirmed and recognized by the Supreme Court of the United States.1 With especial force should this right be applied to those monopolies which have the breath of life breathed into them by legislative act and have vested in them the power of eminent domain to take private property for their use, which under our Constitution must be for a public purpose. But the right of the public to regulate is not restricted to these enterprises, but applies to all affected with a public use. Under this principle the right of regulation has been invoked against water companies, cotton presses, general warehouses, street railways, canals, ferries, toll roads and bridges, wharves, telephones, telegraphs, gas companies, tolls of mills, salvage of logs, etc.2

This makes a great distinction between bailees whose business is

1 Munn v. Illinois, 94 U. S. 113; Budd v. New York, 143 U. S. 516.

2 Spring Valley v. Schottler, 110 U. S. 347; Delaware v. Stockyards, 45 N. J. Eq. 50; Buffalo, etc., Co. v. Buffalo, 111 N. Y. 132; Perrine v. Canal Co., 9 How. (U. S.) 172; Parker v. Railroad, 109 Mass. 506; Covington v. Sanford, 164 U. S. 578; Ouacheta v. Aiken, 121 U. S. 444; Mayo v. Tel. Co., 112 N. C. 343; Toledo v. Gas Co., 5 Oh. St. 557; State v. Edwards, 86 Me. 102; West Branch v. Fisher, 150 Pa. St. 475; 31 Am. L. Rev. 655.