Forepaugh v. Del. Etc. R. Co.

• Decision Date: 07 October 1889
• Docket Number: 227
• Parties: ADAM FOREPAUGH v. THE DEL. ETC. R. CO
• Court: Pennsylvania Supreme Court

18 A. 503

128 Pa. 217

ADAM FOREPAUGH v. THE DEL. ETC. R. CO

No. 227

Supreme Court of Pennsylvania

October 7, 1889

Argued April 5, 1889

ERROR TO THE COURT OF COMMON PLEAS NO. 1 OF PHILADELPHIA COUNTY.

No. 227 January Term 1889, Sup. Ct.; court below, No. 564 March Term 1887, C.P. No. 1.

On April 6, 1887, Adam Forepaugh brought case against the Delaware, Lackawanna & Western Railroad Company to recover damages for injuries to certain personal property through negligence, while being transported over a line of railroad operated by defendant company. The plea was, not guilty.

At the trial on October 30, 1888, it was shown that on March 18 1886, at the city of New York, a written contract was entered into between the plaintiff and the defendant company, whereby the latter undertook to transport the show train of the plaintiff from Binghamton to Cortland, both points being in the state of New York. The plaintiff's train was delivered to the defendant company at Binghamton on May 14 1886, $250, a part of stipulated consideration, being prepaid, and the company began its transportation to Cortland. Before reaching Cortland, and while in the course of transportation and under the control and management of the servants and employees of the defendant company, the train was wrecked through the negligence of such servants and employees.

The contract referred to provided that the defendant company should furnish sufficient motive power, the engineers firemen, conductors and brakemen, and should transport for the plaintiff from Binghamton to Cortland, and thence to Syracuse, his train of forty-two cars for the sum of $750 $250 thereof to be paid before the departure of the train from Binghamton and Cortland, respectively, and then provided:

"And in consideration that the said party of the first part agrees to perform the said service for the said sum, which is much less than the ordinary, usual and legal rates charged other parties by said party of the first part for a like amount of transportation, and in consideration of one dollar, by said party of the first part to said party of the second part in hand paid, before the execution hereof, the receipt whereof they do hereby acknowledge, the said party of the second part do hereby release and discharge the said party of the first part and all other railroad companies over whose roads the said transportation is to be done, and all the officers, agents and employees of the said party of the first part, and all other railroad companies over whose roads the said transportation is to be done, from all liability and responsibility for or on account of, or connected with the loss of the life of, or injury to the person of, or any of the persons, or for or on account of, or connected with the loss of, or damage to, or injury to any of the animals, property or things thus transported, although such loss, damage or injury may be caused by the negligence of the said party of the first part, or other railroad companies over whose roads the said transportation is to be done, its or their agents or employees; and the said party of the second part do also for the consideration aforesaid, agree to indemnify and save harmless the said party of the first part, and all other railroad companies over whose roads the said transportation is to be done, its and their officers, agents and employees, from and against all claims and demands whatsoever, for or on account of any such loss or damage or injury."

The receipt given for charges prepaid was as follows:

"No. --

THE DELAWARE LACKAWANNA AND WESTERN RAILROAD COMPANY.

[Rates of storage: -- For every hundred pounds of freight left at the station over one day, a charge for storage will be made. All claims for damages to a deficiency must be made before their removal.]

Binghamton Station, May 14, 1888.

FOREPAUGH'S CIRCUS TO THE DELAWARE & LACKAWANNA RAILROAD COMPANY, Dr.

For handling and transportation from Binghamton to

Cortland, five passenger cars, two box of stock, twenty-

three platform, three elephant (forty-two cars)

$ 250 00

Back charges prepaid.

Received Payment,

C. G. MERRILL, Agent."

The jury returned a verdict in favor of the plaintiff for the sum of $10,481.07, and found specially the facts and contract hereinbefore stated, the court reserving for further argument and consideration the question whether upon said contract the plaintiff was entitled to recover.

Subsequently the defendant moved that judgment be entered in favor of the defendant, non obstante veredicto.

On December 24, 1888, after argument before the court in banc, the court, BREGY, J., delivered the opinion following:

The plaintiff, who was a circus proprietor, owning his own cars, and desiring to go from point to point with his show, made the following contract with the defendant:

[Here follows the contract.]

On the journey from Binghamton to Cortland, by the negligence of an engineer, the train parted, an accident occurred, and considerable property was damaged.

The place of the making and performance of the contract and scene of the accident was in the state of New York. It was proved at the trial, and admitted on the argument of this motion, that this contract is perfectly valid by the law of that state. In Lockwood v. Railroad Co., 17 Wall. 357, Justice BRADLEY, in delivering the opinion of the United States Supreme Court, holds that such contracts are void as against public policy. The jurisdiction of that court is unfettered by state lines, and they have decided to hold invalid all such contracts made within its jurisdiction, and if we were construing a contract of our own state we would probably come to the same conclusion. But the position of a state court in passing upon the validity of a contract made and to be performed in another state, is quite different from that occupied by the United States Supreme Court, in which state lines are obliterated. We feel, that in passing upon this question, the comity between states requires us to hold this contract to be a valid one. Such is the law, repeatedly declared by the state of New York, the state of the contract: Cragin v. Railroad Co., 51 N.Y. 61; Mynard v. Railroad Co., 71 N.Y. 180. There is no harshness or injustice in holding plaintiff to the contract he made, and in deciding that he cannot, by stepping across the state line, acquire rights here that he would not have had if suit had been brought in the state where his contract was made and was to be performed.

For these reasons the rule is made absolute, and judgment entered for defendant on the point reserved.

Judgment having been entered for the defendant, the plaintiff took this writ, specifying that the court erred:

1. In entering judgment for defendant non obstante veredicto.

2. In not entering judgment for plaintiff on the verdict.

Judgment affirmed.

Mr. John G. Johnson (with him Mr. John A. Brown), for the plaintiff in error:

1. The defendant, in transporting the plaintiff's train, furnished the motive power, the engineer, conductor, fireman and brakemen. It supplied everything save the cars, which were the plaintiff's. It controlled the transportation, which was over its own railroad. It was therefore acting as a common carrier. There is no analogy between this case and Coup v. Railway Co., 56 Mich. 111 (56 Am. Rep. 374), where the plaintiff hired from the defendant men and motive power, the train to be operated under the management, direction, order and control of the plaintiff or his agent, as in his possession, and by means of said employees as his agents, though according to the regulations and time tables of the company. Nor is there any analogy to the case of a tug boat pulling a barge, in the possession of the owner, over a highway common to the world: New Jersey R. Co. v. Penna. R. Co., 33 Dutch. 100. The receipt offered in evidence subjected the defendant to the full liability of a common carrier. It did not refer to the antecedent contract, and the jury were at liberty to find that it embodied the whole contract, and by the failure to refer to one previously made the terms thereof were waived. The plaintiff was not obliged to, and did not prove this antecedent contract. The defendant offered it as evidence of a release, and in that light it must be considered.

2. The validity of this contract is a question of commercial law upon which the courts of this state are at liberty to follow their own decisions in the absence of any local statutes or local common law in New York, varying such commercial law. The New York courts, in holding such contract valid, do not profess to interpret any statute or local common law of their own state, but undertake to say what is the common law. This court is asked to say that its own interpretation of the common law is wrong, and that of the New York courts is right, and enforce the latter in a suit here between citizens of this state. The courts of New York now concede that their interpretation is wrong, but follow it because it has been established: Nichols v. Railroad Co., 89 N.Y. 372. The Supreme Court of the United States follows the decisions of state courts only to a certain extent, not embracing questions of commercial and general common law: Green v. Neal, 6 Pet. 291; Beauregard v. New Orleans, 18 How. 497; Chicago v. Robbins, 2 Black 418; Lockwood v. Railroad Co., 17 Wall. 357; Gelpcke v. Dubuque, 1 Wall. 175; Taylor v. Ypsilanti, 105 U.S. 60; Russell v. Southard, 12 How. 139; Swift v. Tyson, 16 Pet. 1; Oates v. Nat. Bank, 100 U.S. 239; Railroad Co. v. Nat. Bank, 102 U.S. 14; Myrick v. Railroad Co., 107 U.S. 102. There is no higher duty upon our Supreme Court to follow decisions in other states, than rests upon that of the United States: Faulkner v. Hart, 82 N.Y....