Piper v. Boston & M. R. R.

• Decision Date: 01 March 1910
• Citation: 75 N.H. 435,75 A. 1041
• Parties: PIPER et al. v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

75 A. 1041

75 N.H. 435

PIPER et al.

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Merrimack.

March 1, 1910.

[Copyrighted material omitted.]

Transferred from Superior Court, Merrimack County; Pike, Judge.

Action originally begun by Henry L. Piper, and continued by Florence Piper, administratrix, against the Boston & Maine Railroad. Application after reversal (75 N. H. 228, 72 Atl. 1024) to settle the issues to be submitted on the partial new trial awarded by the Supreme Court. Case transferred from Superior Court on defendant's exceptions. Exceptions sustained in part and overruled in part, and case discharged.

Defendant filed a brief statement, with its plea of the general issue, setting up the contracts between plaintiff and the express company and between it and defendant. By plaintiff's agreement with the express company he assumed all risk of injuries sustained in the course of his employment, whether resulting from the negligence of any corporation engaged in operating any railroad or of any employé of such corporation, and agreed to execute to such corporation a release for all injuries so sustained; and the agreement between defendant and the express company provided that the express company should indemnify the railroad company from all claims for injury to the firm's employés while acting within their employment.

Henry F. Hollis and James W. Remick, for plaintiff.

John M. Mitchell and Dewitt C. Howe, for defendants.

PARSONS, C. J. In April, 1909, it was decided in this case that the plaintiff's agreement to waive any claim for damages from an injury resulting from the negligence of the defendants' servants, as the condition upon which he was permitted to work for the express company in the defendants' train shed, was valid and an answer to a suit founded on such negligence.

1. The case being again in this court upon exceptions to certain rulings in the superior court made in anticipation of further trial, it appearing that the written contract offered as evidence in support of the brief statement "provided for the exemption of the railroad from liability, not only for the consequences of the negligence of its servants, but also for the consequences of its own negligence," the plaintiff contends that the stipulation releasing the defendants' own negligence is contrary to public policy, illegal, and void, and that consequently the other stipulations of the contract are illegal and Incapable of enforcement. This question the plaintiff brings here by exception to the failure of the superior court to rule in accordance with this contention. It is objected that the question now raised is involved in the former decision and cannot be re-examined except upon a motion for rehearing, which it is now too late to entertain. No hearing has been had since the former decision; and if it were true, as claimed, that the court by inadvertence or misapprehension had upheld an illegal agreement, it is probable some method for the correction of the error could be discovered. But, however this may be, as the question has been fully argued, it may be as well first to inquire whether the embarrassing situation charged exists. Whether there was at the trial evidence of negligence to which the agreement to release the defendants from liability would not be an answer has not been determined. It would be useless to consider the question now, because upon another trial, if one should be had, neither party would be confined to the evidence previously introduced. The defendants concede that the release from their own negligence is broad enough to cover a liability as to which it cannot be sustained. It is therefore admitted that the agreement contains stipulations for the benefit of the defendants which the law would refuse to enforce.

In support of the contention, the plaintiff cites cases resting upon the proposition that a right cannot be founded upon a violation of law, and hence no legal right can grow out of a contract promoting, or intended to promote, such violation. Beach v. Kezar, 1 N. H. 184 (trade with the enemy during war); Roby v. West, 4 N. H. 285, 17 Am. Dec. 423 (sale of lottery tickets forbidden by statute); Bliss v. Brainard, 41 N. H. 256, and Hill v. Spear, 50 N. H. 253, 9 Am. Rep. 205 (illegal sale of liquor). And where the whole or a part of the consideration for a promise is an illegal act or promise, a promise founded on such consideration cannot be enforced. Clark v. Ricker, 14 N. H. 44 (consideration in part agreement to forbear criminal prosecution of the defendant); Weeks v. Hill, 38 N. H. 199 (consideration in part agreement not to oppose a libel for divorce); Kidder v. Blake, 45 N. H. 530 (consideration in part illegal sale of liquor); Bixby v. Moor, 51 N. H. 402 (services in part in the illegal sale of liquor); Williams v. Hastings, 59 N. H. 373 (consideration in part labor on Sunday); Foote v. Nickerson, 70 N. H. 496, 518, 48 Atl. 1088, 54 L. R. A. 554, and Hill v. Hill, 74 N. H. 288, 290, 67 Atl 406, 12 L. R. A. (N. S.) 848, 124 Am. St. Rep. 966 (agreement to renounce marital rights and duties). These propositions are elementary. They are sustained by other cases in the reports and by the numerous citations of the brief from other jurisdictions. But it is to be noted that, in all the cases cited in which the consideration is Illegal in part only, the promise founded thereon is held invalid upon the ground that the consideration is indivisible; and, since in such case the promise rests upon every part of the consideration, the result is the same as if the whole consideration were illegal. When the consideration is in part good and in part bad, and there are several promises, if it can be seen that a promise otherwise valid depends upon the good part of the consideration it is upheld, although the contract contains agreements unenforceable because dependent upon the illegal part. To render the promise invalid, it must in fact rest upon the illegal or void consideration; and, where the contract is divisible, such of the promises as rest upon the valid part of the consideration will be enforced.

Carleton v. Woods, 28 N. H. 290, was assumpsit for the price of goods and liquors sold according to a schedule in which the price was attached to each article. Although the sale of liquors was illegal, as it could be ascertained what sums the defendant agreed to pay for the goods legally sold, recovery was permitted for the price of the goods, but not for the liquor. The contract containing separable legal and illegal stipulations was enforceable for those that were legal. To the same effect are: Walker v. Lovell, 28 N. H. 138, 145, 61 Am. Dec. 605; Pecker v. Kennison, 46 N. H. 488. See, also, Edgerly v. Hale, 71 N. H. 138, 142, 51 Atl. 679.

The plaintiff's authorities are sound, but inapplicable. A contract may be part of an illegal purpose, or entered into to carry out such a purpose. The consideration may be a legal or an illegal act or promise, or may consist of both legal and illegal acts, or promises. Upon the other side, the promises may be to do legal or illegal acts, or both. Treating the agreement as a simple contract, there is no question of the immorality illegality, or voidability of any part of the consideration for Piper's promises—his employment by the express company or the defendants' assent to his presence in the train shed. Neither was the purpose of the contract— the securing of employment by Piper and of his services by the express company—in violation of any rule of law. Neither was it intended, so far as appears, that Piper should be required or permitted in the course of his employment to do any illegal act. The cases referred to are therefore not in point. But the validity of a legal promise upon a good consideration, though joined in the same instrument or agreement with an illegal promise upon the same consideration, is determined by the same principle—the separability of the good from the bad. Such has been the law from an early day. "At the common law, when a good thing and a void thing are put together, in one selfsame grant, the same law shall make such construction that the grant shall be good for that which is good, and void for that which is void." Bishop of Chester v. Freeland, Ley 71, 79. "It has sometimes been thought that the maxim, 'Void in part, void in toto,' expresses a general principle of law; but in reality it does not, as every one must see on a moment's reflection. In the nature of things, in reason, and above all injustice, it may and must be true that a deed, will, or other instrument can in part be good, although another part is void because in contravention of positive law." Savage v. Burnham, 17 N. Y. 561, 576 Where the defendant has received the consideration in full for the doing of two things, no ground appears in reason why, if the law will excuse him from performance of one, he should for that reason alone also be released from the other promise. There is none in the law; for "the common law doth divide according to common reason, and, having made that void that is against law, lets the rest stand." Norton v. Simmes, Hob. 12, 15. As says Kent, quoting the foregoing; "Where any matter, void even by statute, be mixed up with good matter which is entirely independent of it, the good part shall stand and the rest be held void; though, if the part which is good depends upon that which is bad, the whole instrument is void." 2 Kent, *468. Or, as stated by Chitty: "So, if a contract be made on several considerations, one of which is illegal, the whole contract is void, and that whether the illegality be at common law or by statute. But where the consideration is tainted by no illegality, and some of the promises only are illegal, the illegality of these does not communicate itself to or taint the others, except when, owing to some peculiarity in the contract, its parts are inseparable." Chit. Cont. (10th Am. Ed.) 730. "A distinction must...