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[176 U.S. 498, 499] The following statement and question were certified to this court by the judges of the circuit court of appeals for the sixth circuit:
Messrs. Edward Colston, Judson Harmon, A. W. Goldsmith, and George Hoadly, Jr., for plaintiff in error.
Messrs. Charles M. Cist and Edgar W. Cist for defendant in error.
Mr. Justice Shiras delivered the opinion of the court:
The question we are asked to answer is whether William Voigt, the defendant in error, can avoid his agreement that the railroad company should not be responsible to him for injuries received while occupying an express car as a messenger, in the manner and circumstances heretofore stated, by [176 U.S. 498, 505] invoking that principle of public policy which has been held to forbid a common carrier of passengers for hire to contract against responsibility for negligence.
The circuit judge thought the case could not be distinguished from the case of New York C. R. Co. v. Lockwood, 17 Wall. 357, 21 L. ed. 627, where a recovery was maintained by a drover injured while traveling on a stock train of the New York Central Railroad Company proceeding from Buffalo to Albany, on a pass which certified that he had shipped sufficient stock to give him a right to pass free to Albany, but which provided that the acceptance of the pass was to be considered a waiver of all claims for damages or injuries received on the train. This court held that a drover traveling on a pass, for the purpose of taking care of his stock on the train, is a passenger for hire, and that it is not lawful for a common carrier of such passenger to stipulate for exemption from responsibility for the negligence of himself or his servants. This case has been frequently followed, and it may be regarded as establishing a settled rule of policy. Grand Trunk R. Co. v. Stevens, 95 U.S. 655 , 24 L. ed. 535; Liverpool & G. W. Steam Co. v. Phenix Ins. Co. 129 U.S. 397 , 32 L. ed. 788, 9 Sup. Ct. Rep. 469.
The principles declared in those cases are salutary, and we have no disposition to depart from them. At the same time it must not be forgotten that the right of private contract is no small part of the liberty of the citizen, and that the usual and most important function of courts of justice is rather to maintain and enforce contracts than to enable parties thereto to escape from their obligation on the pretext of public policy, unless it clearly appear that they contravene public right or the public welfare. It was well said by Sir george Jessel, M. R., in Printing & N. Registering Co. v. Sampson, L. R. 19 Eq. 465:
Upon what principle, then, did the cases relied on proceed, and are they applicable to the present one? They were mainly two. First, the importance which the law justly attaches to human life and personal safety, and which therefore forbids the relaxation of care in the transportation of passengers which might be occasioned by stipulations relieving the carrier from responsibility. This principle was thus stated by Mr. Justice Bradley in the opinion of the court in the case of New York C. R. Co. v. Lockwood:
The second fundamental proposition relied on to nullify contracts to relieve common carriers from liability for losses or injuries caused by their negligence is based on the position of advantage which is possessed by companies exercising the business of common carriers over those who are compelled to deal with them. And again we may properly quote a passage from the opinion in the Lockwood Case as a forcible statement of the situation:
Upon these principles we think the law of to-day may be fairly stated as follows: 1. That exemptions claimed by carriers must be reasonable and just, otherwise they will be regarded as extorted from the customers by duress of circumstances, and therefore not binding. 2. That all attempts of carriers, by general notices or special contract, to escape from liability for losses to shippers, or injuries to passengers, resulting from want of care or faithfulness, cannot be regarded as reasonable and just, but as contrary to a sound public policy, and therefore invalid.
But are these principles, well considered and useful as they are, decisive of, or indeed applicable to, the facts presented for judgment in the present case?
We have here to consider not the case of an individual [176 U.S. 498, 508] shipper or passenger dealing, at a disadvantage, with a powerful corporation, but that of a permanent arrangement between two corporations embracing within its sphere of operation a large part of the transportation business of the entire country. We need not, in this inquiry, examine the nature of the business of an express company, or rehearse the particular services it renders the public. That has been done, sufficiently for our present purpose, in the Express Cases, 117 U.S. 1 , sub nom. Memphis & L. R. R. Co. v. Southern Exp. Co. 29 L. ed. 791, 6 Sup. Ct. Rep. 542, 628, and from the opinion in that case we shall make some pertinent extracts:
The cases from the opinions in which are taken the foregoing extracts were suits brought by certain express companies which had been doing business on certain railroads under special contracts between the respective companies, to compel the railroad companies to permit them to continue business on the roads on terms to be fixed by the courts; in other words, to demand as a right what they had theretofore enjoyed by permission of special contracts. This the court declined to do, and directed the bills to be dismissed.
Our citations have been intended partly to disclose, in a succinct form, the nature of the express business, but more particularly to show that, in essence, the express business is one that requires the participation of both the companies on terms agreed upon in special contracts, thus creating, to a certain extent, a sort of partnership relation between them in carrying on a common carrier business.
We are not furnished in this record with an entire copy of [176 U.S. 498, 512] the contract between the plaintiff in error, the Baltimore & Ohio Southwestern Railway Company, and the United States Express Company, but it is sufficiently disclosed in the statement made by the judges of the circuit court of appeals, that the companies were doing an express business together as common carriers under an agreement entered into on March 1, 1895; that by said contract it was agreed that the railway company would furnish, on its line between Cincinnati and St. Louis, for the express company, cars adapted to the carriage of express matter over said line; that one or more employees of said express company should accompany said goods in said cars over the said line, and for such purpose should be transported in said cars, free of charge; that the express company should protect the railway company and hold it harmless from all liability for injuries sustained by the employees of the express company while being transported for the said purpose over the railroad; that Voigt, the defendant in error, had agreed in writing to indemnify the express company against any liability it might incur by reason of said agreement between the companies, so far as he was concerned, and further agreed to release the railroad company from liability for injuries received by him while being transported in the express cars; that, in consideration of such agreement on his part, Voigt was employed as an express messenger, and while so employed, and while occupying as such messenger a car assigned to the express company, received injuries occasioned by a collision, on December 30, 1895, between the train which was transporting the express car and another train belonging to the same railroad company.
It is evident that, by these agreements, there was created a very different relation between Voigt and the railway company than the usual one between passengers and railroad companies. Here there was no stress brought to bear on Voigt as a passenger desiring transportation from one point to another on the railroad. His occupation of the car specially adapted to the uses of the express company was not in pursuance of any contract directly between him and the railroad company, but was an incident of his permanent employment by the ex- [176 U.S. 498, 513] press company. He was on the train, not by virtue of any personal-contract right, but because of a contract between the companies for the exclusive use of a car. His contract to relieve the companies from any liability to him or to each other for injuries he might receive in the course of his employment, was deliberately entered into as a condition of securing his position as a messenger. His position does not resemble the one in consideration in the Lockwood and similar cases, where the dispensation from liability for injuries was made a condition of a transportation which the passenger had a right to demand, and which the railroad companies were under a legal duty to furnish. Doubtless, had Voigt only desired the method of transportation afforded the ordinary passenger, he would have been entitled to the rule established for the benefit of such a passenger. But this he did not desire. He was not asking to be carried from Cincinnati to St. Louis, but was occupying the express car as part of his regular employment, and as provided in a contract which, as we have seen, the railroad company was under no legal compulsion to enter into.
The relation of an express messenger to the transportation company, in cases like the present one, seems to us to more nearly resemble that of an employee than that of a passenger. His position is one created by an agreement between the express company and the railroad company, adjusting the terms of a joint business,-the transportation and delivery of express matter. His duties of personal control and custody of the goods and packages, if not performed by an express messenger, would have to be performed by one in the immediate service of the railroad company. And, of course, if his position was that of a common employee of both companies, he could not recover for injuries caused, as would appear to have been the present case, by the negligence of fellow servants.
However this may be, it is manifest that the relation existing between express messengers and transportation companies, under such contracts as existed in the present case, is widely different from that of ordinary passengers, and that to relieve the defendant in error from the obligation of his contract would require us to give a much wider extension of the doc- [176 U.S. 498, 514] trine of public policy than was justified by the facts and reasoning in the Lockwood Case.
This subject has received attentive consideration in several of the state courts.
In Bates v. Old Colony R. Co. 147 Mass. 255, 17 N. E. 633, it was held that if an express messenger holding a season ticket from a railroad company, and desiring to ride for the conduct of his business in a baggage car, agrees to assume all risk of injury therefrom, and to hold the company harmless therefor, the agreement is not invalid as against public policy, and he cannot recover for injuries caused by negligence of the company's servants. In its opinion the court said:
The same ruling prevailed in the subsequent case of Hosmer v. Old Colony R. Co. 156 Mass. 506, 31 N. E. 652.
Robertson v. Old Colony R. Co. 156 Mass. 526, 31 N. E. 650, was an action brought for personal injuries caused to the plaintiff, an employee of the proprietors of a circus, while riding in a car belonging to the proprietors, drawn by the defendant company over its road under a written agreement, in which it was provided that the circus company should agree to exonerate and save harmless the defendant from any and all claims for damages to persons or property during the transportation, however occurring; and it was held that, as the defendant company was under no common-law or statutory obligation to carry the plaintiff in the manner he was carried at the time of the accident, it did not stand towards him in the relation of a common carrier, and that the plaintiff could not recover.
Griswold v. New York & N. E. R. Co. 53 Conn. 371, 4 Atl. 261, where a restaurant keeper had the privilege to sell fruits and sandwiches on the trains, and to engage and keep a servant for that purpose on the trains, riding on a free pass, it was held that such servant could not recover for injuries sustained on the train caused by the negligence of the company's servants, because he was not a passenger.
The supreme court of Michigan, in Coup v. Wabash, St. L. & P. R. Co. 56 Mich. 111, 22 N. W. 215, where a railroad company, under a special agreement, was to furnish men and motive power to transport a circus of the plaintiff from Cairo [176 U.S. 498, 516] to Detroit on cars belonging to the plaintiff, stopping at certain named points for exhibition, the plaintiff paying a fixed price therefor, held that such transportation was not a transaction with a common carrier as such, that the contract was valid, and that the railway company was not liable for injury due to negligence.
Where a railroad company made a special contract in writing with the owner of a circus to haul a special train between certain points, at specified prices, and stipulating that the railroad company should not be liable for any damage to the persons or property of the circus company from whatever cause, it was held by the circuit court of appeals of the seventh circuit, citing Coup v. Wabash, St. L. & P. R. Co. 56 Mich. 111, 22 N. W. 215, and Robertson v. Old Colony R. Co. 156 Mass. 506, 31 N. E. 650, that the railroad company was not acting as a common carrier, and was not liable under the contract for injuries occasioned by negligent management of its trains. In its opinion the court quoted the following passage from New York C. R. Co. v. Lockwood: 'A common carrier may undoubtedly become a private carrier or bailee for hire when, as a matter of accommodation or special engagement, he undertakes to carry something which it is not his business to carry.' Chicago, M. & St. P. R. Co. v. Wallace, 24 U. S. App. 589, 66 Fed. Rep. 506, 14 C. C. A. 257, 30 L. R. A. 161.
Louisville, N. A. & C. R. Co. v. Keefer, 146 Ind. 21, 38 L. R. A. 93, 44 N. E. 796, was a case in all respects like the present. It was a suit by a messenger of the American Express Company against the railroad company for personal injuries. The contracts between the express company, the messenger, and the railroad company were in terms similar to those existing in the present case, and the defense was the same as that made here. It was held that the contracts were valid and that the defense was good. It was said:
By the supreme court of Indiana, in Pittsburgh, C. C. & St. L. R. Co. v. Mahoney, 148 Ind. 196, 40 L. R. A. 101, 46 N. E. 917, 47 N. E. 464, it was held that railway companies may contract as private carriers in transporting express matter for express companies, and in such capacity may require exemption from liability for negligence as a condition to the obligation to carry, and that a release by an employee of an express company of all liability for injuries sustained by the negligence of the employer or otherwise includes the liability of the express company to hold a railroad company with which it does business harmless against claims by employees of the express company for injuries, and precludes an action against the railroad company for causing his death while in discharge of his duty as employee of such express company.
A precisely similar question was presented in the case of Blank v. Illinois C. R. Co. and was decided the same way by the court of appeals for the first district of Illinois, in an opinion rendered March 14, 1899. 80 Ill. App. 475. The court cites the Express Cases, and approves and applies the reasoning in the Indiana cases; and this judgment has been affirmed by the supreme court of Illinois. 182 Ill. 332, 55 N. E. 332.
The same doctrine prevails in the state of New York. Bis- [176 U.S. 498, 518] sell v. New York C. R. Co. 25 N. Y. 442, 82 Am. Dec. 369; Poucher v. New York C. R. Co. 49 N. Y. 263, 10 Am. Rep. 364. Though it must be allowed that the New York decisions are not precisely in point, as those courts do not accept the doctrine of New York C. R. Co. v. Lockwood to its full extent, but hold that no rule of public policy forbids contractual exemption from liability, because the public is amply protected by the right of everyone to decline any special contract, on paying the regular fare prescribed by law, that is, the highest amount which the law allows the company to charge.
As against these authorities there are cited, on behalf of the defendant in error, several cases in which it has been held that postal clerks, in the employ of the government, and who pay no fare, are entitled to the rights of ordinary passengers for hire; and it is contended that their relation to the railroad company is analogous to that of express messengers. Arrowsmith v. Nashville & D. R. Co. 57 Fed. Rep. 165; Glesson v. Virginia Midland R. Co. 140 U.S. 435 , 35 L. ed. 458, 11 Sup. Ct. Rep. 859; Cleveland, C. C. & St. L. R. Co. v. Ketcham, 133 Ind. 346, 19 L. R. A. 339, 33 N. E. 116; Seybolt v. New York, L. E. & W. R. Co. 95 N. Y. 562, 47 Am. Rep. 75.
There is, however, an obvious distinction between a postal clerk and the present case of an express messenger in this, that the messenger has agreed to the contract between the express and the railroad companies, exempting the latter from liability, but no case is cited in which the postal clerk voluntarily entered into such an agreement. To make the cases analogous it should be made to appear that the government, in contracting with the railroad company to carry the mails, stipulated that the railroad company should be exempted from liability to the postal clerk, and that the latter, in consideration of securing his position, had concurred in releasing the railroad company.
Brewer v. New York, L. E. & W. R. Co. 124 N. Y. 59, 11 L. R. A. 483, 26 N. E. 324, is also cited as a case wherein a recovery was maintained by an express messenger against a railroad company, and where there existed an agreement between the express company and the railroad company that the latter should be indemnified and protected against from all risks and liabilities. But the court put its judgment against the railroad company [176 U.S. 498, 519] expressly upon the ground that the messenger had no knowledge or information of the contract between the companies, and was not himself a party to the agreement to exempt the railroad company.
Kenney v. New York C. & H. R. R. Co. 125 N. Y. 422, 26 N. E. 626, was also a case where, in an action for damages by an express messenger against a railroad company, the plaintiff was permitted to recover, notwithstanding there was an agreement between the companies that the railroad company should be released and indemnified for any damage done to the agents of the express company, whether in their employ as messengers or otherwise. But it did not appear that there had been any assent to a knowledge of this contract on the part of the messenger; and the court said:
Chamberlain v. Pierson, 59 U. S. App. 59, 87 Fed. Rep. 421, 31 C. C. A. 158, in the circuit court of appeals of the fourth circuit, was a case in which an express messenger was injured while traveling on a railroad which had a contract with the express company, exonerating the foreman from responsibility for injuries to the agents of the latter, and in which said agreement was ineffectually pleaded in bar of the action. The court said:
Without enumerating and appraising all the cases respectively cited, our conclusion is that Voigt, occupying an express car as a messenger in charge of express matter, in pursuance of the contract between the companies, was not a passenger within the meaning of the case of New York C. R. Co. v. Lockwood; that he was not constrained to enter into the contract whereby the railroad company was exonerated from liability to him, but entered into the same freely and voluntarily, and obtained the benefit of it by securing his appointment as such messenger; and that such a contract did not contravene public policy.
Accordingly, we answer the question submitted to us by the judges of the Circuit Court of Appeals in the negative; and it is so ordered.
Mr. Justice Harlan, dissenting:
In New York C. R. Co. v. Lockwood, 17 Wall. 357, 384, 21 L. ed. 627, 641, it was held 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 'these rules apply both to carriers of goods and carriers of passengers for hire, and with special force to the latter;' and that 'a drover traveling on a pass, such as was given in this case, . . . is a passenger for hire.' The railroad pass referred to declared that its acceptance was to be considered a wavier of all claims for damages or injuries received on the train. The above principles have been recognized and enforced by this court in numerous cases.
I am of opinion that the present case is within the doctrines of New York C. R. Co. v. Lockwood, and that the judgment should be affirmed upon the broad ground that the defendant corpora- [176 U.S. 498, 521] tion could not, in any form, stipulate for exemption from responsibility for the negligence of its servants or employees in the course of its business, whereby injury comes to any person using its cars, with its consent, for purposes of transportation. That the person transported is not technically a passenger and does not ride in a car ordinarily used for passengers is immaterial.
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Citation: 176 U.S. 498
Docket No: No. 88
Decided: February 26, 1900
Court: United States Supreme Court
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