Front Page Titles (by Subject) § 109a.: Contracts against liability for negligence prohibited.— - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1
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§ 109a.: Contracts against liability for negligence prohibited.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 
A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.
Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.
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Contracts against liability for negligence prohibited.—
The liability for negligence is imposed by the law, and does not arise out of the contract of the parties. The duty, in the performance of which the negligence occurred, may arise out of, and rest upon, contract; but the exercise of care in the performance of a duty, whether the duty is legal or contractual, is an obligation often of general application. Ordinarily, the performance of a legal duty, or the liability for an improper performance, may be waived by agreement of the persons who may be affected by it. The law does not ordinarily compel persons to avail themselves of the protection it affords them. But where the duty is of so general a nature, as that the proper performance of it, even where the private individual is most affected by it, becomes a matter of public policy, the right may very properly be denied to the private individual to relieve another by contract from the liability for improper performance. A private person, probably, cannot be forced to sue on the tort, but the law may declare void any contract, by which he relieves the person, on whom the duty rests, from liability. This is the rule at common law in respect to liability for negligence. No man can by contract relieve himself from liability for negligence in the performance of any duty to the public generally, or to a particular individual, whether the duty arises out of a contract or is imposed by the law; but particularly so where the law imposes the duty. This restriction upon the contracts of individuals has particular application to contracts with common carriers and telegraph companies. In respect to the common carrier, the common law imposed the obligation to guarantee the safe delivery of the goods intrusted to his care for transportation, and he is liable for the failure to deliver them at the place of destination in every case, except where they are proven to have been destroyed by the intervention of some unavoidable natural agency, or by the act of the public enemy. The exercise of the highest degree of care constitutes no defense. Public policy requires the imposition of this extraordinary obligation.1 But the imposition of this extraordinary obligation is not deemed to be so far required by public policy, as that parties may not be permitted by contract to release the carrier from it. Common carriers may limit their common-law liability to acts of negligence by contract with the consignor. But the contract must be freely and voluntarily made. The carrier cannot refuse to take goods for carriage under the common-law liability, if the consignor should refuse his assent to a limitation.1 But public policy would not permit the enforcement of a contract, which not only released the carrier of his common-law liability as an insurer, but likewise from the consequences of his negligence. It is the almost invariable rule of law in the United States, that common carriers are forbidden to relieve themselves by contract from liability for injuries caused by the negligence of the carrier or his servants. This is the rule of law, whether the carrier be a natural person or a corporation.2 In New York and New Jersey, it has been held not to be against public policy for common carriers to make contracts, whereby to release themselves from liability for the negligence of their servants, although it is forbidden them to divest themselves of responsibility for their own negligence; and in case of railroad corporations this principle has been carried so far as to enable a release from liability for the negligence of every agent of the corporation, except the board of directors.1 The prohibition of contracts in release of liability for negligence is the same, whether it refers to the carriage of goods or of passengers. In the latter cases, such contracts are against public policy, and therefore, void, even where the passenger is traveling on a free pass, whether the pass is given in conjunction with the transportation of freight for hire, as in the case of “drover’s passes,”2 but also where it is given as a matter of courtesy.3 The cases generally maintain that the common carrier is held to the same degree of care, whether the carriage is gratuitous or for a consideration, but it would seem but natural to require of the common carrier, in cases of free passes, only that degree of care, which is required of all bailees, where the bailment is exclusively for the benefit of the bailor, viz.: slight care, and it has been so held in Illinois.4
The same restriction against contractual releases from liability for negligence has been applied to telegraph companies, but with a notable exception. The general rule, that one can not by contract relieve himself from responsibility for negligence, applies. But in consequence of the great liability to the commission of errors in the transmission of messages; arising from the limited control over the electrical current, and the great exposure to accidents to the wires, and to the electrical apparatus at both ends; it has very generally been held to be a reasonable and permissible stipulation, that the telegraph company will not be responsible for errors in transmission of messages, whether they arise from the intervention of natural causes or the negligence of the operators, unless the message is repeated. Such a contract would be equivalent to an agreement to send the message for a less sum, upon condition of being relieved from liability for errors or delays.1
Coggs v. Bernard, 2 Ld. Raym. 909; Railroad v. Reeves, 10 Wall. 176; Bulkley v. Naumkeag, etc., Co., 24 How. 386; Fillebrown v. Grand Trunk, etc., Co., 55 Me. 462; Caldwell v. N. J. Steamboat Co., 47 N. Y. 282; Orange Co. Bk. v. Brown, 9 Wend. 85; Hayes v. Kennedy, 41 Pa. St. 378; Morrison v. Davis, 20 Pa. St. 171; Boyle v. McLaughlin, 4 H. & J. 291; New Brunswick, etc., Co. v. Tiers, 24 N. J. 697; Friend v. Woods, 6 Gratt. 139; Swindler v. Hilliard, 2 Rich. 286; Turney v. Wilson, 7 Yerg. 540; Powell v. Mills, 30 Miss. 231; Chicago, etc., R. R. Co. v. Sawyer, 69 Ill. 285; Merchants’ Dispatch Co. v. Smith, 76 Ill. 542; McMillan v. Michigan, etc., R. R. Co., 16 Mich. 79; Bohannan v. Hammond, 42 Cal. 227. The exceptions to this general liability as an insurer are usually stated to be “the act of God, or of the public enemy.” The “act of God” means any natural cause, which could not be avoided by human foresight. “What is precisely meant by the expression ‘act of God’ as used in the case of common carriers, has undergone discussion, but it is agreed that the notion of exception is those losses and injuries occasioned exclusively by natural causes, such as could not be prevented by human care, skill, and foresight. All the cases agree in requiring the entire exclusion of human agency from the cause of the injury or loss. If the loss or injury happen in any way through the agency of man, it cannot be considered the act of God; nor even if the act or negligence of man contributes to bring or leave the goods of the carrier under the operation of natural causes that work to their injury, is he excused. In short, to excuse the carrier, the act of God, or vis divina, must be the sole and immediate cause of the injury. If there be any co-operation of man, or any admixture of human means, the injury is not, in a legal sense, the act of God.” Wright, J., in Michaels v. N. J. Cent. R. R. Co., 30 N. Y. 571.
New Jersey Steam Nav. Co. v. Merchant’s Bank, 6 How. 344; Railroad Co. v. Manufacturing Co., 16 Wall. 318; Fillebrowne v. Grand Trunk R. Co., 55 Me. 462; Brown v. Eastern R. Co., 11 Cush. 97; Buckland v. Adams Express Co., 97 Mass. 124; Hollister v. Nowlen, 19 Wend. 234; Bennett v. Dutton, 10 N. H. 481; McCoy v. Erie, etc., R. R. Co., 42 Md. 498; Smith v. N. C. R. R., 64 N. C. 235; Southern Express Co. v. Caperton, 44 Ala. 101; Jones v. Voorhees, 10 Ohio, 145; McMillan v. Michigan, etc., R. R., 16 Mich. 79.
New Jersey, etc., Co. v. Merchants’ Bk., 6 How. 344; York Co. v. Central R. R. Co., 3 Wall. 107; Sager v. Portsmouth, etc., R. R. Co., 31 Me. 228; School Dist. v. Boston, etc., R. R. Co., 102 Mass. 552; Camden, etc., R. R. v. Baldauf, 17 Pa. St. 67; Bickham v. Smith, 62 Pa. St. 45; Delaware, etc., R. R. v. Starrs, 69 Pa. St. 36; Welch v. Boston, etc., R. R., 41 Conn. 333; Virginia, etc., R. R. v. Sayers, 26 Gratt. 328; Smith v. N. C. R. R., 64 N. C. 235; Swindler v. Hilliard, 2 Rich. 286; Berry v. Cooper, 28 Ga. 543; Indianapolis, etc., R. R. v. Allen, 31 Ind. 394; Southern Express v. Moon, 39 Miss. 822; Gaines v. Union Transp. Co., 28 Ohio St. 418; Great West. R. R. v. Hawkins, 17 Mich. 57; s. c. 18 Mich. 427; Adams Exp. Co. v. Stettaners, 61 Ill. 174; Sturgeon v. St. Louis, etc., R. R., 65 Mo. 569; South, etc., R. R. v. Henlein, 52 Ala. 606; Mo. Val. R. R. v. Caldwell, 8 Kan. 244; N. O. Ins. Co. v. N. O., etc., R. R., 20 La. Ann. 302; Hooper v. Wells, 27 Cal. 11.
Wells v. N. Y. Cent. R. R., 24 N. Y. 181; Perkins v. N. Y. Cent. R. R., 24 N. Y. 197; Smith v. N. Y. Cent. R. R., 24 N. Y. 222; Bissell v. N. Y. Cent. R. R., 25 N. Y. 442; Poucher v. N. Y. Cent. R. R., 49 N. Y. 263; Kinney v. Cent. R. R., 32 N. J. 407; s. c. 34 N. J. 513.
Railroad Co. v. Lockwood, 17 Wall. 357; Cleveland, etc., R. R. v. Curran, 19 Ohio St. 1; Ohio, etc., R. R. v. Selby, 47 Ind. 471.
Philadelphia, etc., R. R. v. Derby, 14 How. 468; Pa. R. R. Co. v. Butler, 57 Pa. St. 335; Ind. Cent. R. R. v. Mundy, 21 Ind. 48; Jacobus v. St. Paul, etc., R. R., 20 Minn. 125.
“While we hold this argument did not exempt the railroad company from the gross negligence of its employees, we are free to say that it does exempt it from all other species or degrees of negligence not denominated gross, or which might have the character of recklessness.” Ill. Cent. R. R. v. Read, 37 Ill. 484.
McAndrew v. Electrical Tel. Co., 17 C. B. 3; Grinnell v. West. Union Tel. Co., 113 Mass. 299 (18 Am. Rep. 485); True v. Int. Tel. Co., 60 Me. 9; Young v. West. Union Tel. Co., 65 N. Y. 163; Passmore v. W. U. Tel. Co., 78 Pa. St. 238; Berney v. N. Y., etc., Tel. Co., 18 Md. 341; W. U. Tel. Co. v. Carew, 15 Mich. 525. In Illinois, it is not permitted to telegraph companies to stipulate that they will not be responsible for errors arising solely from the negligence of the operators. They can stipulate against liability for errors, only where they occur through some natural cause beyond the company’s control. Tyler v. West. Union Tel. Co., 60 Ill. 421 (14 Am. Rep. 38); West. Union Tel. Co. v. Tyler, 74 Ill. 163. See Wann v. West. Union Tel. Co., 37 Mo. 472; Sweatland v. Ill., etc., Tel. Co., 27 Iowa, 432; Candee v. West. Union Tel. Co., 34 Wis. 471; West. Union Tel. Co. v. Graham, 1 Col. 230. In the last case it was held that the condition against liability, where the message is not repeated, is no defense in an action for failure to deliver.