Brockway v. American Exp. Co.

• Decision Date: 18 May 1897
• Parties: BROCKWAY v. AMERICAN EXP. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

168 Mass. 257

47 N.E. 87

BROCKWAY v. AMERICAN EXP. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 18, 1897

COUNSEL

A.N. Williams, for plaintiff.

W.C Loring and R.W. Boyden, for defendant.

OPINION

KNOWLTON, J.

The defendant entered into a contract with the plaintiff to transport 28 horses from Chicago to Boston. The plaintiff contends that the defendant was guilty of gross negligence in keeping the horses confined for a long time without food or drink, whereby they suffered greatly and were seriously injured. The defendant's first contention is that, by the terms of the contract of carriage, it was not to be liable for any injury or damage to the property, even if caused "by the fault, negligence, or carelessness, gross or otherwise," of itself or its servants or agents. The first question is whether this provision of the contract is valid. The contract was made in Illinois, to be performed in part in that state, and in part in other states. The rights of the parties to such a contract are to be determined by the lex loci contractus. Fonseca v. Steamship Co., 153 Mass. 553, 27 N.E. 665; Fairchild v. Railroad Co., 148 Pa.St. 527, 24 A. 79; Hazel v. Railway Co., 82 Iowa, 477, 48 N.W. 926. The law of the state of Illinois was put in evidence, by which it appeared that in that state a common carrier cannot contract against liability arising from the gross or willful misconduct of himself, his agents or employés. Railway Co. v. Chapman, 133 Ill. 96, 24 N.E. 417. The same doctrine is generally, although not universally, held in other jurisdictions. Doyle v Railroad Co., 166 Mass. 492-496, 44 N.E. 611, and cases cited. The defendant is a common carrier. Buckland v Express Co., 97 Mass. 124; Bank of Kentucky v. Adams Exp. Co., 93 U.S. 174. It follows that this defense cannot prevail if there was gross negligence on the part of the defendant or its servants or agents.

The plaintiff relies in part upon Rev.St. §§ 4386-4390 inclusive, which punish by severe penalties the keeping of cattle, sheep, swine, or other animals for more than 28 hours continuously in cars, boats, or vessels used in carrying or transporting them from one state to another, without unloading them for rest, water, and feeding for a period of at least five consecutive hours, unless prevented from so unloading them by storm or other accidental causes, or unless the cars, boats, or vessels are so constructed and arranged that the animals can have proper feed, water, space, and opportunity to rest without being unloaded. The contract between the plaintiff and the defendant contemplated the carrying of the horses from one state to another upon railroads which were to be the defendant's agents, to which the provisions of the statute above referred to expressly apply. The horses were kept in the car without food or drink, and without rest, except what they could get standing, for about 49 hours. The statute does not in terms apply to express companies hiring their accommodations from railroad companies; but there is no doubt that it applies to the railroad companies themselves which the defendant employed in the present case. The statute is intended to prevent cruelty in interstate commerce, as well as danger to the public health, from inducing diseases in animals which are to be used for food. The existence of this statute, even though it does not subject the defendant itself to a penalty, is strong evidence of the defendant's duty to give a reasonable opportunity to the plaintiff's custodian, who accompanied the horses on the train, to provide them with food and drink on their journey. Indeed, if there was no such statute, a contract to convey horses to be accompanied by a custodian would impliedly include an undertaking to allow the custodian to stop at reasonably convenient times and places to give them such food and drink as they needed to keep them in good health. Not to...