Fish v. Delaware, L.&W.R. Co.

• Decision Date: 02 June 1914
• Citation: 105 N.E. 661,211 N.Y. 374
• Court: New York Court of Appeals Court of Appeals
• Parties: FISH v. DELAWARE, L. & W. R. CO.

211 N.Y. 374

105 N.E. 661

FISH

v.DELAWARE, L. & W. R. CO.

Court of Appeals of New York.

June 2, 1914.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by George D. Fish against the Delaware, Lackawanna & Western Railroad Company. From an order of the Appellate Division (158 App. Div. 92,143 N. Y. Supp. 365) affirming an interlocutory judgment of the Special Term (79 Misc. Rep. 636,141 N. Y. Supp. 245) overruling a demurrer to separate defenses set up in defendant's answer, plaintiff by permission appeals on certified questions. Reversed, and questions answered in the affirmative.

See, also, 158 App. Div. 909,143 N. Y. Supp. 1117.

The plaintiff brought this action to recover for injuries received by him in a collision on defendant's railroad at Elmira, in this state. His complaint charges that he was at the time a passenger on one of defendant's trains, and it further contains the allegations that are usual in actions to recover for injuries on the ground of negligence.

The defendant's answer, after denying the allegations of the complaint, sets up two separate defenses designated ‘2nd’ and ‘3rd,’ from which it appears that the plaintiff shipped at Jackson, Mich., by the Grand Trunk Railroad, certain household goods and two horses consigned to himself at Ballston Spa, Saratoga county, in this state. This shipment was made pursuant to a contract executed at Jackson between the plaintiff and the Grand Trunk Railroad for the transportation of the property over the line of the Grand Trunk Railroad Company, the line of the defendant, and the line of the Delaware & Hudson Railroad Company. The plaintiff accompanied the shipment in a freight car and was carried without charge. The contract was made for the benefit of all the carriers, and contained a clause by which the plaintiff agreed to save harmless the Grand Trunk Railroad Company and its connecting carriers from any claims on account of personal injuries to the plaintiff; and at the same time and place he also signed a paper purporting to release the carriers from liability for personal injuries to him, in consideration of his being carried without any charge except the amount paid for the carriage of the property which he accompanied.

The plaintiff demurred to the two separate defenses. The demurrer was overruled at Special Term, and this decision was affirmed by the Appellate Divison, with leave to appeal to this court upon the following certified questions:

(1) Is the ‘2nd’ defense insufficient in law on the face thereof?

(2) Is the ‘3rd’ defense insufficient in law on the face thereof?

(3) Is the contract set forth in the ‘2nd’ defense to be governed by the law of the state of Michigan?

(4) Is the validity of the release set forth by the ‘3rd’ defense to be governed by the law of the state of Michigan?James A. Leary, of Saratoga Springs, for appellant.

L. B. McKelvey, of Saratoga Springs, for respondent.

WERNER, J. (after stating the facts as above).

Although four questions are certified for our determination, we may for convenience reduce them to two. The first arises under the ‘2nd’ separate defense and requires us to decide whether the federal regulations pleaded in that defense absolve the defendant from any liability in any state court on account of the personal injuries sustained by the plaintiff. The other arises under both the ‘2nd’ and ‘3rd’ separate defenses and calls upon us to determine whether the contracts relieving the defendant from liability are to be governed by the law of this state or by the law of Michigan; and it may be remarked in passing that such an exemption from liability as the defendant here pleads is concededly invalid under the law of Michigan and valid by the law of this state. Weaver v. Ann Arbor R. R. Co., 139 Mich. 590, 102 N. W. 1037,5 Ann. Cas. 764;Hodge v. Rutland R. R. Co., 112 App. Div. 142,97 N. Y. Supp. 1107, affirmed 194 N. Y. 570, 88 N. E. 1121.

The material allegations of the ‘2nd’ separate defense may be paraphrased as follows: The plaintiff entered into a written contract at Jackson, Mich., with the Grand Trunk Railway Company, which provided for the carriage of household goods and two horses from Jackson to Ballston Spa in this state over a joint route established by law over the line of that company the line of the defendant and the line of the Delaware & Hudson Company, at an agreed rate of compensation pursuant to lawful tariffs, rules, and classifications established, published, and filed in accordance with the United States laws regulating interstate commerce; the carriers mentioned were engaged in interstate commerce; the contract or contracts were part and parcel of the said tariffs and the rules, regulations, and classifications of said common carriers published and filed pursuant to the laws of the United States regulating interstate commerce and in connection with and as a part of said tariff; the plaintiff, ‘as shipper of said goods and horses,’ accepted the rate of charges assessed pursuant to said tariffs, which was a reduced rate, and paid the charges, ‘and in consideration of said reduced rate, and in accordance with said tariffs and the said rules and regulations and classifications connected therewith, signed, made, and executed the said written contract or contracts; pursuant to said contract or contracts, and in consideration of the payment of the lawful tariff charges which were reduced rates because of the said rules and regulations and their acceptance by the plaintiff, the said common carriers carried the said goods and horses, and at the same time, and in the freight car wherein said goods and horses were loaded, transported plaintiff free of charges as a caretaker of said horses; the contract or contracts were made for the benefit of all the carriers.’ Then there are further allegations that ‘by virtue of said contract or contracts it was agreed by the plaintiff and defendant, ‘in consideration of the premises' and of the carriage of a person in charge of said stock upon a freight train of the carrier or its connecting carriers without charge, other than the sum paid for the transportation of the live stock of which he is in charge,’ the shipper agreed to ‘indemnify and save harmless such carriers from all liability for personal injuries to him caused by their negligence,’ and that the agreement of the shipper to indemnify and save harmless the carriers contains the express stipulation that the plaintiff had the option to ship said live stock at a higher rate for carriage and thus secure a contract more favorable to him, but that he voluntarily chose the lower rate.

Assuming all these allegations to be true, and giving to the pleader the benefit of every fair intendment and inference to be implied therefrom, we find no unequivocal allegation that the part of the contract which relates to the immunity and release of the defendant from liability on account of personal injuries to the plaintiff was a part of the tariffs filed under the federal Interstate Commerce Act. This can be demonstrated, we think, by an abbreviated summary of the allegations of the special defenses. It is alleged that a contract was executed for the transportation of the property, consisting of household goods and horses at a rate fixed according to tariffs, etc., duly filed; and that the contract or contracts ‘hereinbefore referred to’ were part of such tariffs. It is to be noted that the only contract ‘hereinbefore’ referred to is the one relating to the transportation of property. Then follows the further allegation that the ‘goods and horses' were carried pursuant to such contract, and ‘at the same time’ plaintiff was carried in a freight car free of charge. The pleader does later add the conclusion that, in consideration of the premises and of the carriage of a person in charge of the stock, the plaintiff agreed that there should be no liability on account of personal injuries to him, but there is no allegation that this part of the contract had anything to do with the schedules, tariffs, and rates of carriage filed; nor is any such idea fairly inferablefrom a fair construction of the pleading. It seems rather to exclude that view. The free transportation of the plaintiff may well have been deemed a consideration for the exemption of the carriers from liability for personal injuries to the person accompanying the live stock, but that does not argue that either of these things was the basis for a reduced rate for the carriage of the property and exemption from liability, under any federal regulation. The pleader has either inadvertently or skillfully avoided any such averment. If the defendant desires to rely upon that part of the contract relating to its immunity and release from liability for personal injuries, as part and parcel of the schedules, tariffs, and rates filed according to law, it should be plainly alleged. Without an unequivocal allegation, we must assume that the question is not presented whether such a condition, constituting part of a legally established interstate rate, is one in respect of which the state courts are shorn of their jurisdiction. We are of the opinion, therefore, that the demurrer to the ‘2nd’ separate defense, in so far as it relates to the question above discussed, should have been sustained.

[2][3][4] The ‘2nd’ and ‘3rd’ separate defenses, respectively, set forth an agreement and a release, signed and executed by the plaintiff in Michigan, absolving the carriers from liability for personal injuries to him in consequence of negligence on the part of the...