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affected with a public interest and those whose business is not thus affected. Where in the one case it might not be against public policy to permit contracts to exempt them from liability for negligence, in the other case it might be directly opposed to public policy. Where in the one case public policy would favor the principle of freedom of contract, in the other case it would be opposed to that principle for the reason that the public is a third party to all such contracts and has interests therein which must be protected. Bearing this distinction in mind, let us proceed to consider the question whether these exceptional bailees should be allowed to limit their liability for negligence. If the interests of the public could be as fully protected and safeguarded in this way as any other, I suppose all will admit that the best rule would be that permitting such bailees as great freedom of contract as other bailees. What rule, then, will best conserve the interests of the public?
The true reason for the extraordinary common law liability of common carriers and innkeepers for the safety of goods was the possibility of collusion, of combining with thieves against those trusting them. In the early days of the law this was a very great possibility and probability, but at the present time the reason has ceased to exist. The reason for the rule having fallen, should not the rule itself fall? This argument may have force as applied to innkeepers, but, owing to the nature of the business of common carriers, it is perhaps to be admitted that as to them there are new reasons for the extraordinary liability, as now modified, which are as strong as the old reason.1
The course of the law of innkeepers has been much the same as that of other bailees. After a period of development their extraordinary liability for the goods of a guest and their ordinary negligence liability for the safety of the person of the guest were established as their common law liability. From the time of the establishment of this rule the tendency of the law has been toward breaking it down by permitting limitations on it. But in this process, while some of the changes have been wrought out by the allowance of notices and special contracts of the parties, most of the limitations have been those resulting from statutory enactments. By analogy it is reasonable to suppose that at least as extensive contract limitations would be allowed to innkeepers as have
1 Story, Bailments, $$ 464-467; 11 Harv. L. Rev. 158; 30 Am. L. Rev. 767.
been allowed to common carriers (their common law liability being less). But, ordinarily by statute, they can escape liability for goods by posting notices only when the goods have not been deposited with them for custody as required by the notices.
The Roman law made livery-stable keepers insurers and classed them with innkeepers and carriers, but the English law has refused to apply the doctrines to livery-stablers; nor are warehousemen, or other bailees affected with a public interest, insurers. Only innkeepers and common carriers are made approximately insurers. But whatever reasons for this liability exist today, they apply with the same force to these other public bailees as to innkeepers, and it would seem as though the rule ought to be relaxed in the one case or made more rigid in the other.
The history of the right of common carriers to contract against liability for negligence discloses a strange variety of holdings, both in the case of common carriers of goods and of passengers, for the similarity of principles and the fact that the same parties are generally engaged in both occupations sanction their treatment together. In general, as in the bailments heretofore considered, there has been an ever-increasing tendency, more marked here than in any other bailment, to allow special contracts to take the place of the common law liability. Little by little there has been a gradual breaking away from the harsh common law principle which made common carriers insurers except for the acts of God and the public enemy. Their common law liability itself has been lessened by the admission of other exceptions to it, where the loss resulted from the inherent nature of the goods or live stock, public authority and act of the shipper. But special contract exemptions have worn still further into the common law liability. In this manner common carriers have been allowed to determine the time of delivery of goods and the route of transportation, to exempt themselves from loss by fire, breakage, leakage, etc., when not due to their neglect, to limit the time to present claims and the amount recoverable in case of loss, to impose conditions and restrictions
1 Dawson v. Chamney, 5 Ad. & El. 164 ; Richmond v. Smith, 8 B. & C. 9; Pinkerton v. Woodward, 33 Cal. 557 ; Bodwell v. Bragg & Bro., 29 Ia. 232 ; Berkshire v. Proctor et al., 7 Cush. (Mass.) 417; Fuller v. Coates et al., 18 Oh. St. 343; McDaniels v. Robinson, 26 Vt. 316; Story, Bailments, $ 486; Rev. Stat. of Ill. 1903, C. 71, $ 2; Rev. Stat. of Me. 1903, C. 29, $ 7; Comp. L. of Mich. 1897, SS 5315, 5316; Rev. Stat. of Mass. 1902, 862, 863; Rev. Stat. of Minn. 1905, § 2810; Rev. Stat. of N. Y. 1901, 1744, 1746.
on passengers, and in a word to do anything that did not excuse negligence, until at last even the question of permitting them to contract against responsibility for the results of their negligence has arisen. On the rock of this question the courts have split asunder.
So far as English common carriers are concerned, early glimmers of the right to establish by contract the liability they should be under are found as far back as Southcote's case, where it was hinted that such a carrier might have provided against liability. In Morse v. Slue 3 it was said he “might have made a caution.” In later cases it was held that by a notice brought home a common carrier could create a special acceptance, which, except for misfeasance, would control his liability in every respect. By the Land Carriers' Act of 1830 this notice feature was practically abolished, but the rule was still recognized that by a special contract the carrier could stipulate against liability for any loss, where there was no wilful wrongdoing, whether it related to goods or passengers, and whether it was caused by his negligence or not. The Railway and Canal Traffic Act was then passed, and by this it was provided that any agreement limiting a carrier's liability must be signed by the shipper and be adjudged by a court to be just and reasonable; but if these conditions are met a common carrier may make a contract which will excuse him from liability for all negligence, though not for wilful wrong.
Hence it is seen that, by the law of England, common carriers, like all other bailees, may by contract do away with all of their common law liability except that which may be called their pure tort liability for positive wrongdoing.
The English rules are followed in Canada, Scotland, Germany, Italy, and in some of the states in our own country.”
1 Hart v. Pennsylvania, 112 U. S. 331; Liverpool v. Phenix, 129 U. S. 397 ; Express Co. v. Caldwell, 21 Wall. (U. S.) 264; Boylon v. Hot Springs, 132 U. S. 146; Louisville v. Sherrod, 84 Ala. 178; Duntley v. Railroad, 66 N. H. 263; Graves v. Lake Shore, 137 Mass. 33; O'Malley v. Great Northern, 86 Minn. 380; U. S. Express v. Backman, 28 Oh. St. 144; Richmond v. Payne, 86 Va. 481. ? 4 Co. 84.
i Vent. 238. 4 Gibbon v. Paynton, 4 Burr. 2298; Forward v. Pittard, 1 T. R. 27; Nicholdson v. Willan, 5 East 507 ; Smith v. Horne, 8 Taunt. 144; Chippendale v. Lancashire, 12 L. J. C. B. 22; Manchester v. Brown, 8 App. Cas. 70; Hinton v. Dibbin, 2 Q. B. 646; McCawley v. Furness, L. R. 8 Q. B. 57 ; Blake v. Great Western, 31 L. J. Exch. 346.
ó The Glengoil, etc., Co. v. Pilkerton, 28 Can. Sup. Ct. 146; Bicknell v. Grand Trunk, 26 Ont. App. 431; Henderson v. Stevenson, L. R. 2 H. L. 470.
The extreme holding in the United States is that permitting the absolute change and extinguishment of the common law liability by contract, if the parties so desire and agree. This view is taken practically only by the jurisdiction of New York. In that state the pendulum has swung to both extremes. At first it was held that a common carrier could not by contract or otherwise evade the duty thrown upon it by the common law; but after a period of development and expressions of opinion by the federal Supreme Court the courts of the State of New York swung back to enforce any contract the parties might see fit to make, provided the language of the contract is plain and distinct, though by his wilful wrongdoing the carrier may render himself liable for breach of contract. 1
The theory of the New York court is that the contract between the shipper or passenger, on the one side, and the carrier, on the other, is purely a private one, with which the public has no concern, and that public policy is satisfied by holding the carrier bound to carry under his common law obligation if the shipper or passenger insists upon it and will pay the regular freight or passenger rate.
Next in liberality are some holdings exempting the carrier from liability for negligence to one riding on a free pass, or to an express messenger, or sleeping-car agents, -- the entering wedge for the free pass decisions, so far as the United States Supreme Court is concerned, having been driven in the express messenger cases. This rule, of course, refers to only a part of the carrier service.
The next most liberal holding, followed by some courts, is that permitting the common carrier by contract to provide against all liability, except for injury occasioned by fraud or gross negligence, whether to goods or passengers, provided there is a reduction in the freight or passenger rate to constitute a consideration for the agreement; and it is a question whether with these decisions should
1 Gould v. Hill, 2 Hill (N. Y.) 623; Nelson v. Hudson, etc., Co., 48 N. Y. 498; Keeney v. Grand Trunk, etc., Co., 47 N. Y. 525; Cragin et al. v. New York Central, 51 N. Y. 61; Gleadell v. Thomson et al., 56 N. Y. 194; Bissell v. New York, etc., Co., 25 N. 1'. 442 ; Ulrich v. Railroad, 108 N. Y. 80.
2 Baltimore v. Voight, 176 U. S. 498; Northern Pacific, etc., Co. v. Adams, 192 U. S. 440; Griswold v. New York, etc., Co., 53 Conn. 371 ; Blank v. Illinois, 182 Ill. 332 ; Rogers v. Kennebec, etc., Co., 86 Me. 261; Quimby v. Boston, etc., Co., 150 Mass. 265; Bates v. Old Colony, etc., Co., 147 Mass. 255; Brewer v. New York, etc., Co., 124 N. Y. 59; Muldoon v. Seattle, 10 Wash. 311; Russell v. Pittsburg, etc., Co., :57 Ind. 305; 6 Cyc. 579.
not also be placed those permitting exemptions from liability to persons riding on free passes.
The New Jersey decisions, though to be classed here, allow common carriers to contract against the negligence of their agents and servants but not against their own negligence, a position demolished as long ago as the case of Railroad v. Lockwood, supra, where the court pointed out that a common carrier is an artificial being which can act only through agents and servants, and if it should be allowed to relieve itself from the negligence of one class of servants it should from the negligence of others. Such reasoning is on a par with the recently advanced argument by analogy that the state should proceed against the property of a corporation, instead of trying to hold its officers personally liable, for analogy would require that, instead of being tied up and held idle, the property be made to produce something for the state, as criminals are made to do.2
In the cases which sustain the foregoing gross negligence exception, there arises again the question of the meaning of the term. If the courts really mean negligence, the epithet is technically a misnomer; if they mean acts which would constitute some other tort, that is another matter entirely. If the latter interpretation were adopted, all the cases thus far considered could be harmonized and placed in one and the same category, namely, the cases allowing exemptions from negligence of all kinds, all except gross negligence and all in the cases of express messengers, sleeping-car agents, and persons riding on free passes. If this interpretation is not correct, and I hardly think it would be acceptable to the courts which have used the language, the cases cannot be harmonized. The confusion here is analogous to that discovered in the unexceptional bailments.
But, even though the cases permitting these contracts against negligence could be harmonized, aside from the free pass doctrine, the great majority of the courts in this country, up to this time, have declared against the right of common carriers to make con
1 Northern Pacific, etc., Co. v. Adams, 192 U. S. 440; Boering v. Railway, etc., Co., 193 U. S. 442; Cooper v. Raleigh, etc., Co., 110 Ga. 659; The Southern Express v. Barnes, 36 Ga. 532 ; Illinois Central v. Read, 37 III. 484; Toledo, etc., Co. v. Biggs, 85 III. 80; Wabash, etc., Co. v. Browne, 152 Ill. 484; Higgins v. New Orleans, etc., Co., 28 La. Ann. 133; Wilson v. Shulkin, 51 N. C. 375; Muer v. Chicago, etc., Co., 5 S. D. 568; Amas, etc., Co. v. Railroad, etc., Co., 67 Wis. 46; Black v. Goodrich, 55 Wis. 319.
2 Kinney et al. v. Central Railroad, 32 N. J. L. 407.