Grand v. Livingston

The question of the defendant’s negligence,’as-well as that of the contributory negligence of the plaintiffs’ representatives, was submitted to the jury upon evidenee which was-somewhat conflicting in its character, but which, it is conceded, was ample to support the verdict; and the only question presented by the record which, appears to require serious examination is-that which arises upon the construction given by the trial court to the release which, is embodied in the shipping contract eñteredi into cotemporaneously with the delivery of the horses to the defendant. 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 recognised as possessing any validity in the state of Massachusetts (School Dist. in Meadfield v. Boston, H. & E. R. Co., 102 Mass. 552 ; Pemberton Co. v. New York Cent. R. Co., 104 Mass. 144 ; Walsh v. Railroad Co., 160 Mass. 57 ); 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. Mynard v. Railroad Co., 71 N. Y. 180 ; Nicholas v. Railroad Co., 89 N. Y. 370 ; Kenney v. N Y. C. & H. R. Railroad Co., 125 N. Y. 422 ; 35 St. Rep. 447 . It is to be noted, however, that this rule is applicable to cases-only in which the language of the contract is plain and unequivocal, and that there is an apparent tendency in the latter decisions to-restrict its operation to the very narrowest possible compass. Our attention has not been directed to any case which sanctions-so thorough and radical a divesting of all liability as is sought to-be accomplished by the release in question, nor do we believe that the rule ought to be extended so as to exempt the carrier-from the consequences of gross negligence, although it is, perhaps, unnecessary to express any opinion upon that subject, inasmuch; as we are disposed to consider the case from another and somewhat different standpoifit.

The value which attaches to the exemption clause of this contract depends, necessarily and in any event, upon whether it is to-be governed by the law of Massachusetts, or by the law of this-state; and the determination of this question involes not only a, careful examination of the instrument itself, but likewise of alB

In the case of Lloyd v. Guibert, 6 Best-& S. 100, it was said, by Mr. Justice Willes, in delivering the judgment, that.

“ It is generally agreed that the -law of the place where the contract is made is, prima facie, that which the parties intended, Drought to be presumed to have adopted, as the footing upon which they dealt, and that such law ought, therefore, to prevail, in the absence of circumstances indicating a different intention, as, for instance, that the contract is to be entirely performed elsewhere, or that the subject-matter is immovable property situated in another country.”

In another English case the same doctrine was enunciated by Denman, J., in the following language, which was subsequently approved by the court of appeal:

“ The general rule is that, where a contract is made in England, between merchants carrying on business here, as this is, but to be-performed elsewhere, the construction of the contract and all its-incidents are to be governed by the law of the country where the contract is made, unless there is something to show that the intention of the parties was that the law of the country where the-contract is to be performed should prevail.” 12 Q. B. Div. 589, 596, 600. _

_ And this general rule has been recognized and adopted in this-country by an almost unbroken lines of decisions of both the state and federal courts, to some of which it may be desirable to advert briefly.

In the case of McDaniel v. Railway Co., 24 Iowa, 412 , which was-quite similar in its main features to the one at bar, and in which it. appears that the cattle transported by a railroad company from a place in Iowa to a place in Illinois, under a special contract made-in the former state, containing a stipulation that the company should be exempt from liability for any damage, unless resulting from collision or derailing of trains, were injured in Illinois by ,the negligence of the company’s servants, it was held that the .case was to be governed by the law of Iowa, which permitted no common carrier to exempt himself from the liability which would exist in the absence of the contract. The court, Chief Justice-Dillon presiding, said :

“ The contract being entire and indivisible, made in Iowa, and to be partly performed here, it must, as to its validity, nature, obligation, and interpretation, be governed by our law.”

See, too, in Pennsylvania Co. v. Fairchild, 69 111. 260, where a. railroad company received, in Indiana, goods consigned to a party

The cases in otir own'state which contain express recognition of this rule are very numerous, and it can hardly be necessary or profitable to cite more than one or two of them.

In Dyke v. Railway Co., 45 N. Y. 113 , 116, it was said, by ALLEN, J.:

“ The lex loci contractus determines the nature, validity, obligation, and legal effect of a 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.”

And in China Mut. Ins. Co. v. Force, 142 N. Y. 90 -100; 58 St. Rep. 400 , it is said that:

“ The obligation of the shippers of the cargo is to be determined by the law of the place where the affreightment was made.”

If, then, the rule which has been thus far considered is applied to this case, it follows that the release under which the defendant -seeks to escape liability must be given effect and construction under the law which obtains in Massachusetts, unless it can be fairly said that the parties thereto, at the time of executing the ■same, clearly manifested an intention that it should be governed by the law of this state, which intention, it may be added, must -have been entertained by both of them. And, as we have seen that the law where it was executed affords prima facie evidence -of the intent of the parties, the burden would seem to rest upon the defendant of overcoming the presumption thus created, by satisfactory proof.

It was said by Andrews, Chief Judge, in the Nicholas Case, ■supra, that:

“ The circumstances under which contracts of this kind are usually made preclude a careful consideration, by the shipper, of their language and effect.”

And for this reason, as was suggested upon the argument, the question of intent can hardly be said to involve the actual mental -operations of the parties. For, as a matter of fact, they probably did not stop to consider what was the legal effect of their agreement, or whether there was any diversity in the law of the two -states; and, therefore, when we speak of the “ question of intent,” we ar.e making .use of what may perhaps be termed a “legal fiction”; but, nevertheless, the law does look at the acts of the •parties, and the circumstances surrounding them, which may possibly have exerted some influence upon their actions, and then

The facts relied upon by the defendant as indicating an intention to bring the contract within the operation of the law of this ■state are: (1) That this state is the legal residence of the defendant, and the actual residence of the plaintiffs; (2) that the contract, so far as delivery is concerned, was to be performed in this -state; and (3) that no effect could be given to the provisions of the contract, if the same is to be interpreted by the law which -obtains in the state where it was executed. It is undoubtedly a well-settled rule of construction that meaning and effect shall be -given to all of the language employed in a Contract, provided it can be done without violence to the plain object and intent of the parties thereto. Buffalo E. S. R. Co. v. Buffalo St. R. Co., 111 N. Y. 132 ; 19 St. Rep. 574 . And if this contract was one which , had been drawn up at the time of its execution, to express the ■¡intention of the parties in this particular transaction, it might be virged, with considerable force, that the law of this state should be invoked, in order that effect might be given to all its provisions ; but it appears that the agreement was completed by filling up a blank form with such words as was necessary tp fit the occasion, and presumably, just such a form as was used by the company in its business throughout the entire country, or wherever it had ah office. And this circumstance must be regarded as lessening somewhat the force which might otherwise attach to the defendant’s contention in this regard. The residence of the parties, and the fact that the contract, by its terms, was to be partly performed within this state, are certainly circumstances which might very properly be considered in determining the question of intent’ and which might, perhaps, prove efficient aids to the court in its ■effort to reach a correct solution thereof, were there nothing in, the case to counterbalance them; but, in considering this question two distinct facts or circumstances are made prominent, either one of which, we think, is sufficient to overcome any inference which may be properly drawn from those relied upon by the defendant and which have just been adverted to.

It has already been stated that, when these horses were shipped, it was arranged that two representatives of the plaintiff should accompany them upon their trip to Buffalo. This, it seems, was re-quired, as one of the conditions of transporting the horses, and no -additional fare was charged for these men ; but they, too, were obliged to enter into a contract with, the express company absolving it from all liability for injury to their persons or property. This supplemental release was indorsed upon the back of the original contract, and in that the defendant was careful to insert a clause expressly providing that any question arising thereunder should M be determined by the law of the state of Hew York.” This certainly furnishes sufficient evidence to justify the conclusion that, when the defendant desired to bring any contract within the operation of the law of a particular state, it was aware of the importance and necessity of expressing such design in language ■which was incapable of misconstruction; and therefore its omis

The other circumstance, to which allusion has been made, arises out of the fact that to give to this contract the construction contended for by the defendant would make a contract for the-plaintiffs which, to say the least, is a very unreasonable one, and which would place them entirely at the mercy of the defendant. And this, in the absence of any other circumstance, would, in our opinion, afford sufficient reason for refusing such a construction. Russell v. Allerton, 108 N. Y. 288 ; 13 St. Rep. 629 .

We think that thé case was properly disposed of at the circuit, and that no sufficient ground is presented for interfering with the result reached, and that the judgment and order appealed from, should therefore be affirmed, with costs. ■” .

Judgment and order affirmed, with costs.

All concur.