
    Douglas H. Grand and Others, Respondents, v. Johnston Livingston, as President of The National Express Company, Appellant.
    
      Contract — release to a common carrier from all negligence — an unreasonable contract— law of the place of the Contract—giving effect to all parts of a contract made upon a pi'intedform.
    
    In an action brought to recover damages resulting from injuries alleged to have been sustained by certain horses while in transit by the defendant, an express company, by reason of defendant’s negligence, it appeared that the horses Were shipped from Boston to Buffalo under a contract containing a release void under the laws of Massachusetts, which stipulated that the defendant should not be liable for the negligence of its servants and that the property was forwarded entirely at the owner’s risk.
    
      
      Held, that the contract must be construed under the law of Massachusetts, where it was executed,' unless it could fairly be said that the parties, at the time of its execution, clearly manifested an intention that it should he governed by the law of the State of New York;
    That no such intention existed might he presumed from the fact that a release, taken from two-persons'who Were to accompany the horses upon their trip, expressly provided that any question which arose under that agreement should he determined by the law of the Slate of New York;
    That the court would also be slow to enforce a contract which relieved a common carrier from all liability for the gross negligence of its own servants;-
    T'hat the rule of construction .that effect should he given to all the language employed in a contract could not he. deemed to apply strongly to a case where the contract was upon a printed blank of a form in general use all over the country and one which was usually executed by the shipper without careful consideration of its language and effect.
    : Appeal by the. defendant, Johnston Livingston, as president of Tiie National Express Company, from a judgment of the Supreme Court in favor, of the plaintiffs, entered in the office .of the clerk of the county of Erie on the 22d day of May, 1895, upon the verdict of a jury rendered after a-trial at the Erie. Circuit, and 'also from an order entered in said clerk’s office on the 22d day of May, 1895; denying -the defendant’s motion for a new trial made upon the minutes.-
    The plaintiffs herein are co-partners in the business of purchasing and selling horses at East Buffalo in this State, and they-are -all' residents of the State. The National Express Company, a joint stock association, is a common carrier of goods, chattels, merchandise and live stock for hire, and has- offices in various towns and cities -of the different States, and, among others, one. in the city <pf Buffalo in the State'of .New York, and one in the city of Boston in the State of Massachusetts. The defendant is the president of such association and a resident of the city of New York, at which placet's ilo'cated" the principal office of the company. -
    Upon thé:4th day of November, 1894, the plaintiff Douglas H: Grand delivered to the defendant at the -city of Boston a quantity •'of 'horses to be by it transported and delivered .to his firm in the city of Buffalo, in consideration of.the sum of $125 to be paid fheréfqr. The horses were carried to Buffalo, two representatives ©f the plaintiffs accompanying them upon the ears, and were there delivered to the consignees. But it is claimed that, in consequence of the negligence of the defendant, they were seriously injured while in transit, to the great loss and damage of the plaintiffs.
    At the time of delivering the horses to the defendant for shipment the shipper was required to • sign a contract or release which reads as follows:
    “ Live Stock Taken Only at Owner’s Risk. National Express Company. Live Stock Contract.
    “Agreement made at Boston, Hass., on the 4th day of November, 1894, between the National Express Company and D. H. Grand of Buffalo, N. T.
    “ Whereas, Said D. H. Grand has this day delivered to said Company at Boston, Hass., the following animals, value agreed at $75 per head, 22 horses, of which he declares himself to be the owner, consigned to' D. II. Grand & Go.' at Buffalo, N. V.,
    “ Now it is agreed, That said company undertakes as forwarders only, to forward said property to the nearest point of destination reached by said company.' It being understood that said company relies upon the various railroad and steamboat lines of the country for its means of forwarding property delivered to it to be forwarded, it is agreed that it shall not be liable for any damage to said property caused by the detention of any train of cars,, or of any steamboat upon which said property shall be placet!; for transportation, nor by the neglect or refusal of any railroad company or steamboat to receive and forward the same. * - *
    “ In consideration of the undertaking of said company to forward said property as above mentioned, and of the reduced rate of compensation at which said property is to be so forwarded, said shipper agrees that said company, its agents or any railroad, or transportation company or carrier over whose lines the said property may pass, shall not under any circumstances nor for any cause be liable for any injury or damage to or loss of said property, .whether or not the said injury; damage or loss happen or arise from any fault, negligence or carelessness, gross or otherwise, on the part of said company, its agents or servants. It being the intent of this contract' that said property shall be forwarded entwel/g at the owner’s rislc.
    
    “ For NATIONAL EXPRESS CO., :'.
    “ W. G. Hamlin, Agent.
    
    “ (Shipper will sign here.)
    “ D. H. Grand, Shijwer.”
    
    
      
      John G. Milburn, for the appellant.
    
      I. W. Cole, for the respondents.
   Adams, J.:

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 evidence 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 entered 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 recognized as possessing any validity in the State of Massachusetts (School District in Medfield v. B., H. & R. Ry. Co., 102 Mass. 552; Pemberton Company v. R. R. Co., 104 id. 144; Walsh v. R. R. Co., 160 id. 571); 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. R. R. Co., 71 N. Y. 180; Nicholas v. R. R. Co., 89 id. 370; Kenney v. R. R. Co., 125 id. 422.) It is tó 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 later 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 standpoint.

The value which attaches to the exemption clause of this contract depends necessarily and in any event upon whether it is governed by the law of Massachusetts or by the law of this State, and the determination of this question involves not only a careful examina^ tion of the instrument itself, but likewise of all the circumstances attending its execution. First in importance, therefore, is the fact that the contract was executed in the former State, and this of itself furnishes sufficient reason for concluding that the law of that State is controlling, unless it is' made to appear that it was the intention of the parties when entering into the contract to be bound by the law of some other State This statement of the law of place is one which might, perhaps, be safely permitted to rest upon principle, but it is supported by abundant authority.

In the case of Lloyd v. Guibert (6 B. & 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, or ought 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.” (Jacobs Marcus & Co. v. The Credit Lyonnais, 12 Q. B. D. 589, 596, 600.) And this general rule has been recognized and adopted in this country by an almost unbroken line of decisions of both the State and Federal courts, to.some of which it may be advisable, to advert briefly.

In the case of McDaniel v. C. & N. W. Ry. (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 Illij nois 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 arid indivisible, made in Iowa and to be partly performed here, it must, as to its validity, nature, obligation and interpretation, be governed by ©nr law.” So, too, in Penn. Co. v. Fairchild (69 Ill. 260), where a railroad company received in Indiana goods consigned to a party in Leavenworth, Kansas, and which were destroyed by fire while in transit, the court held that the case must be governed by the law of Indiana, by which one of the carriers was not liable for the loss of goods after they passed into the custody Of a connecting line ; while as early as 1832 Mr.'Ju’stice Thompson of the United States Supreme Court, in Cox v. U. S. (6 Pet. 172) applied the same rule, which has been frequently reiterated by that court down to the present time. (Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U. S. 397.)

- The cases in our own State which contain express recognition of' this rule are very numerous, and it cau hardly be necessary or profitable to cite more than one or two of them. In Dyke v. Erie Railway Co. (45 N. Y. 113, 116) it was said by Allen, J.: “ The' lex loei 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.” And in The C. M. Ins. Co. v. Force (142 N. Y. 90-100) it is said that “ The obligation of the shippers of the cargo is to be determined by the law of the place where the contract of affreightment was made.”

I-f, 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 construed 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, Oh. J., 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 are 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 assumes that their intention is in harmony with such acts and circumstances. 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. (B. E. S. R. R. Co. v. B. S. R. R. Co., 111 N. Y. 132.) And if this contract was one which had been drawn up at the time of its execution to express the intention óf the parties in this particular transaction, it -might he urged 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 apjiears that the agreement was completed by filling up a blank form with such words as were necessary to fit the occasion, and presumably just such a form, as was used by the company in its business through-, out the entire country, or wherever it had an 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 detérrnining 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 casé to counterbalance them. But ini 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 plaintiffs should accompany them upon their trip to Buffalo. This, it seems, was required 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 person or property. This supplemental release was-itidorsed upon the back .of the original contract, and in that the defendant was careful to insert a clause expressly providing that airy question arising thereunder should “ be determined" by the law of the State of New York.” This certainly furnishes sufficient evidence to justify the conclusion that when the defendant desired to brjng "any contract within the operation of the law of a particular State, it was aware o.f the importance and neces-' sify of expressing stich design in language which was incapable of misconstruction, and, therefore, its Omission to insert a similar provision in its original- contract, possesses a significance which cannot be disregarded in the effort to ascertain the intent of at least one of the parties thereto. 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.)

We think that the 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.

All concurred.

Judgment and order affirmed, with costs.  