Ullman v. Chicago & Northwestern Railway Co.

88 N.W. 41, 112 Wis. 150, 1901 Wisc. LEXIS 115

Opinion

Marshall, J.

The learned trial court correctly decided that if appellant and respondent, when their' contract was made, as a part thereof fairly agreed upon the value of the horse as a basis for the charges for transporting it and responsibility for its safety in respect to dangers from negligence on the part of the carrier, such agreement was valid and limited the right of respondent to the recovery of §100 and interest. That is the settled law, notwithstanding in a few jurisdictions such doctrine is not recognized; and it applies where the maximum, as well as where the actual, value is agreed upon. The leading case on the subject is Hart v. Pa. R. Co. 112 U. S. 331. The principles there declared have been adopted in most of the states of the Union, including this state (Loeser v. C., M. & St. P. R. Co. 94 Wis. 571; Schaller v. C. & N. W. R. Co. 97 Wis. 31), and are not in conflict with anything said or decided in Abrams v. M., L. S. & W. R. Co. 87 Wis. 485. There is a wide difference between an agreement exempting a carrier from the liability which the common law imposes, and one fixing a value basis for charges for transportation of and responsibility for property intrusted to its care. The former is universally condemned; the latter, when fairly made, is, as a general rule, upheld. The limitation indicated, upon the power of parties to contract, rests on grounds of public policy which cannot reason■ably be said to require any restraint upon the right to fairly gauge charges for services and risk by a property value basis.

But it is said there ivas no agreement between the parties to the transaction in this case as to the value of the horse as a basis for the contract of carriage. The trial court so decided, holding the contract in question to be the same, in all essential particulars, as a stipulation against any liability for loss of the subject of carriage or damage thereto through negligence of the carrier, or liability for any such loss in excess of a stipulated amount having no regard to the value of the property; and further, as we understand it, that an agreement upon the maximum value is not a compliance with the condition of the right to vary common-law responsibility.. A careful reading of the opinion in Abrams v. M., L. S. & W. R. Co. will show that the decision turned on the general doctrine that a common carrier cannot make a valid contract avoiding altogether the common-law liability for the result of his negligence, or arbitrarily limiting his liability in case of loss by negligence. There was nothing in the contract there considered indicating that the limitation of liability agreed upon was made with reference to the value of the property. There was simply an arbitrary stipulation against liability in excess of a certain ■sum named. ~We are unable to agree with the trial court that the stipulation in the contract before us was of that ■character, or that it does not contain an agreement as to the value of the horse for the purposes of its transportation. The statement therein of the declared value of the horse, by the shipper, being $100, the delivery and acceptance of the property for shipment pursuant thereto, and the acceptance by the shipper of the bill of lading, clearly amounted to an agreement between the parties that the value of the property was as indicated. Hart v. Pa. R. Co. 112 U. S. 331.

The learned trial court said, in his opinion, that the contract did not name the value of the property or contain any agreement on that subject, but was a simple declaration limiting liability. Since the contract named $100 as the-value of the horse, and so referred thereto as to clearly indicate an intention to thus place a maximum value upon the-property, we are led to believe, as before indicated, that it was supposed by the court that, owing to the failure to^ specify a certain instead of a maximum value, there was no agreement as to value within the doctrine permitting common carriers to limit their liability by charging for their-service on the basis of an agreed value of the subject of carriage, and that in the Abrams Case it was so decided. We do not so understand that case.

There are three well-recognized classes of cases in the books on the subject under consideration: First, those where the parties agreed upon the value and limited the liability of the carrier accordingly. Coupland v. Housatonic R. Co. 61 Conn. 531; Brehme v. Dinsmore, 25 Md. 328; Graves v. L. S. & M. S. R. Co. 137 Mass. 33; Hill v. B., H. T. & W. R. Co. 144 Mass. 284; Zimmer v. N. Y. C. & H. R. R. Co. 137 N. Y. 460. Second, those where the stipulation fixed a maximum value of the property and it was agreed that in case of loss the recovery should not exceed such value. The great majority of cases belong to this class and in the main refer to Hart v. Pa. R. Co., supra, which was such a case.. The following are of the same character: Alair v. N. P. R. Co. 53 Minn. 160; J. J. Douglas Co. v. Minn. T. R. Co. 62 Minn. 288; Belger v. Dinsmore, 51 N. Y. 166; Muser v. Holland, 17 Blatchf. 412; Railway Co. v. Sowell, 90 Tenn. 17; Starnes v. Railroad Co. 91 Tenn. 516; South & N. A. R. Co. v. Henlein, 52 Ala. 606; Durgin v. Am. Exp. Co. 66 N. H. 277; Richmond & D. R. Co. v. Payne, 86 Va. 481; Ballou v. Earle, 11 R. I. 441. Third, cases where the contract either exempted the carrier altogether from liability for the result of negligence, or such liability was limited to a certain sum arbitrarily fixed, that is, having no reference to the actual value of the property. Abrams v. M., L. S. & W. R. Co. 87 Wis. 485, belongs to this class, and it is so placed in the note to the text on the subject in 4 Elliott, R. R. § 1510.

Most of the conflicts that are supposed to exist in the decisions are confined to this third class of cases. It has often been a question whether an amount stated as the limit of the carrier’s liability was inserted in the contract merely for the purpose of such limitation, or for the purpose of measuring the responsibility by the actual value of the property. That question has been a subject for consideration where the word “value” .was used in connection with the limit placed upon recoverable loss, as well as where neither that word nor anything equivalent thereto was used, as in the Abrams Case. For examples we cite the following: In Harvey v. T. H. & I. R. Co. 74 Mo. 538, the property carried was a horse. This language was used in the bill of lading: “Value if injured or killed, $100.” The contract was sustained because the court, viewing it from the standpoint of the parties at the time it was made, held that it contained an agreement that the value of the horse was the sum named, and indicated that the contract of carriage was made fairly upon that basis. In Louisville & N. R. Co. v. Owen, 93 Ky. 201, the stipulation in the bill of lading issued to the shipper of a horse was to the effect that the liability of the carrier, in case of any injury to the horse, should not exceed $100, nothing being expressly said about its value. The court held that the limitation was a mere stipulation against liability for negligence and was void. Similar stipulations were upheld upon the ground that they were named with reference to the value of the property at the time and place of shipment in the following, among a large number of cases that might be cited: Zouch v. C. & O. R. Co. 26 W. Va. 524; Western R. Co. v. Harwell, 91 Ala. 340; Squire v. N. Y. C. R. Co. 98 Mass. 239.

It will be noted that all the cases cited are in perfect harmony with Abrams v. M., L. S. & W. R. Co. 87 Wis. 485, since the court there determined that the limitation of liability was fixed arbitrarily. In Moulton v. St. P., M. & M. R. Co. 31 Minn. 85, the contract was in all essential particulars the same as the one in the Abrams Case, and the result was the same. The key to the decision in that and all similar cases — except those in a few states which do not permit contracts limiting, directly or indirectly, the common-law liability of common carriers for negligence, and are out of harmony with the decision of the supreme court of the United States in Hart v. Pa. R. Co. 112 U. S. 331, of which Chicago & N. W. R. Co. v. Chapman, 133 Ill. 96, where substantially the same form of contract we have before us was considered, is a fair example — is contained in the following language: “Upon the face of the contract under consideration it is apparent that it was not the purpose of the parties to liquidate the damages recoverable with reference to the value of the property consigned to the carrier.” In a later case which has been cited (Alair v. N. P. R. Co. 53 Minn. 160) the form of contract was substantially the same as the one before us, and it was said that the decision in Moulton v. St. P., M. & M. R. Co. 31 Minn. 85, had no bearing thereon except as it recognized.the right of a common carrier and shipper to limit the liability of the former for damages through its negligence by a fair contract upon the basis of the value of the property; and it was held that, in the contract there under consideration, unlike the one in the Moulton Case, the damages, in case of loss or injury to the property, were liquidated with, reference to the value thereof as declared by the shipper or assented to by him, as in Hart v. Pa. R. Co. 112 U. S. 331.

Enough has been said to,demonstrate that we would be flying in the face of the decisions of this and most courts, were we to hold that the contract in question is a mere arbitrary stipulation against-liability for negligence; and at the same time we would be violating the plain words of the contract. The opening words of the bill of lading were, in substance, that the value of the horse did not exceed $100. To that reference was thereafter made in the paper as a valuation of the property, and in one instance as a valuation agreed upon between the owner and shipper. In view of that, how can it be said that the limit of liability was arbitrarily fixed, no reference being had to the actual value of the property as in the Abrams Case? It might be so. said if, while language was used ostensibly fixing the value of the property, such value was so out of harmony with the ordinary value of similar property as to indicate that value, in fact, did not enter into the transaction. But that is not the situation here.- As said by the court in Alair v. N. P. R. Co. 53 Minn. 160, apt language was used to make an agreement as to the value of the property, and the amount named is in harmony with common knowledge as to the-value, ordinarily, of horses. So it would be doing violence to words to hold that the parties did not intend to do what their language indicates was their purpose. The contract, seems to satisfy all the essentials of a valid agreement between shipper and common carrier, liquidating the maximum amount of damages recoverable by the former of the-latter in case of loss or injury to the subject of carriage. The amount was fairly agreed upon, it was reasonable,, and the charges for services and responsibility were based thereon. Such a contract has no similarity to the one construed in Abrams v. M., L. S. & W. R. Co. 87 Wis. 485; Moulton v. St. P., M. & M. R. Co. 31 Minn. 85, and similar cases.

We have left to consider the question of whether the word of limitation used in tbe contract, in regard to the class of injuries the parties had in mind in restricting recoverable damages, included injuries attributable to the carrier’s negligence. The trial court decided in favor of respondent on that proposition. . It will be noted that, following the language of the contract containing the shipper’s declaration of the value of the horse, and in close connection therewith, are these words: “And it is agreed between the owner and shipper of these animals, and the said railway company, that in case of accident resulting in injury to said animals, the value thereof shall in no case exceed the values named above.” In no place before those words occur or thereafter is the word “negligence” used, or any word in itself indicating the precise meaning the parties ascribed to the word “ accident ” till we reach the conclusion of that part of the contract containing the carrier’s receipt for the horse and statement of the rate for service to be rendered in respect to the property, when the following words occur: “In consideration of which, and further valuable considerations, it is hereby mutually agreed that said company shall not be liable for loss of live stock by jumping from cars, delay of trains not caused by negligence as aforesaid, or any damage said property may sustain except such as may result from a collision of the train with other trains, or when the cars are thrown from the track in course of transportation,” etc. Now we have nothing to do with the last part of the language quoted, so far as it purports to exempt appellant altogether from injury or loss of the property while in its charge, from its negligence. We look in vain through what preceded the word “ negligence ” for anything that can reasonably be said to be the antecedent thereof other than the term “ accident.” By a very familiar rule for the construction of contracts, every word in the agreement must be taken to have been used for a purpose, and no word be rejected as mere surplusage if we can discover any reasonable purpose thereof which can be gathered from the whole instrument. The words “ negligence aforesaid ” are strikingly significant. They must necessarily be taken to refer to some word or words that precede them, and it seems that, if they do not point to the word “ accident ” as their antecedent, they have none.

The learned circuit court reasoned thus: The carrier’s common-law liability cannot be varied except by language unmistakably indicating that such was the intention of the parties; the contract is open to two constructions, hence it is the duty of the court to adopt the one most favorable to the shipper. We find no fault with those rules for construction, but the premises assumed in applying them to the case seem to be incorrect. Judicial construction of a contract does not reach a point where the meaning of some significant word can be said to be in doubt and it is permissible to assign thereto one of two meanings, either of which is within the reasonable scope thereof, upon merely arriving at a conclusion that such word may, as an abstract proposition, be given either of two meanings. A word in a contract, taken by itself, often admits of two meanings, when, from the whole contract to be construed, there is no reasonable doubt as to the sense in which the parties used it. In that situation, the particular sense they ascribed to the word when the contract was made 'must be adopted if it is within the reasonable scope thereof. That satisfies the requisites of clearness in such a contract as the one before us, in order to vary the common-law liability of the carrier, and precludes the application of the rule that in case of doubt the uncertainty should be resolved against the carrier or the person responsible for the use of the uncertain term in the contract in respect to his own interests. If mere ambiguity of expression were always taken as justifying a court in choosing between two meanings of a particular word or collection of words, either of which is within the reasonable scope thereof, the primary purpose of judicial construction — that of determining the intention of the parties in regard to the subject for construction, so far as the same can be located within the reasonable meaning of the language they chose to use — would often fail of accomplishkient. There is often ambiguity of expression in a written contract or other writing when the meaning is plain, leaving no room for a selection to be made between two meanings for the purpose of arriving at the intention of the parties thereto. Words in their literal sense, if so' applied, may lead to such an absurd result as to obscure the real meaning; and again, words in a contract, when taken in their literal sense, may be obscure in meaning and such obscurity entirely disappear when a view is taken from the standpoint of the parties in reducing •their agreement to writing. As an abstract proposition, it may be admitted that the meaning of the word “ accident ” is not always the same. However, if the reasonable scope thereof will admit of its standing as the antecedent of “ negligence ” in the contract before us, the meaning the parties to the writing ascribed to it is too plain to be disregarded.

The trial court seems to have supposed that the word “ accident ” does not, properly speaking, or as commonly understood, refer to the result of negligence. In that he was clearly wrong. True, the word, in the narrow sense usually .given thereto in connection with some qualifying word, does not refer to the result of actionable negligence, but it is commonly used without any qualifying word in speaking of such a result. There are, in this and other courts, many examples of such use. The numerous instances referred to by appellant’s counsel might be largely added to. Oliver v. La Valle, 36 Wis. 592; Cummings v. Nat. F. Co. 60 Wis. 603, 611; Annas v. M. & N. R. Co. 67 Wis. 46, 59; Koenig v. Arcadia, 75 Wis. 62; Groesbeck v. C., M. & St. P. R. Co. 93 Wis. 508, 509; Hyer v. Janesville, 101 Wis. 371; Buckmaster v. C. & N. W. R. Co. 108 Wis. 353. In the last case cited this language was used: “ If the accident be one which could happen only through decedent’s negligence, then, of course, the accident itself establishes such negligence.” In Groesbeck v. C., M. & St. P. R. Co. this language was used, speaking of the opinion of the court in a previous case: “The accident in that case occurred at a place where there was no restriction on the speed of trains.”

Further examples to almost any extent could be given showing that the result of negligence is commonly spoken of as an accidental occurrence, the term “ mere accident ” being commonly used where it is desired to repel the idea of negligence. In Sawyer v. H. & St. J. R. Co. 37 Mo. 240, 262, an instruction to a jury was held strictly accurate where the court spoke of “mere accident” as not actionable, putting the decision on the ground that the word “ mere ” differentiated a nonactionable from an actionable occurrence, the former being referred, for the proximate cause, to mere chance, and the latter to want of legal care on the part of a responsible person. In Henry v. Grand Ave. R. Co. 113 Mo. 525, the jury were instructed that if the injury to the plaintiff was purely accidental, he could not recover. It was contended on the part of the plaintiff that such language was misleading because in the law of negligence the word “ negligence ” and the word “ accident ” are used synonymously. The court coincided with that view, yet held that the instruction vras proper because of the qualifying word “ purely; ” that without such qualification “ accident,” referring to an occurrence caused by human agency, might suggest precedent negligence; and that the use of such qualifying word with the word “ accident ” is well understood to exclude negligence or carelessness. In McCarty v. N. Y. & E. R. Co. 30 Pa. St. 247, the term “accident ” was held applicable to an occurrence resulting from negligence, but that the use thereof, in speaking of an event causing damage to a person for which no one was liable, was proper because, of the following explanatory clause, “ a circumstance over which they could have no control.”

Thus it will be seen that while the term “accident,” when ascribed to an injury to person or property rights, in a narrow sense, not only excludes human intention or expectation, but likewise duty, under the circumstances, in the exercise of ordinary care, to have anticipated the danger and guarded against it, yet it is treated in all the books as a proper designation of occurrences arising from actionable negligence. So common has its use in that way become that law writers have felt warranted in adopting, for a title to a treatise on law and practice in cases grounded on negligence, the words, “Law and Practice in Accident Cases.” See Black’s work on the subject. In Nave v. Flack, 90 Ind. 205, in discussing this subject, the court said: “ The poverty of language compels the use of words in different meanings, and this is notably true of the word ‘ accident.’ Strictly speaking, an accident is an occurrence to which human fault does not contribute; but this is a restricted meaning, for accidents are recognized as occurrences arising from the carelessness of men.” In Browne, Judicial Interpretation, 4, 5, it is said that it will not do to construe the word “ accident” as necessarily excluding negligence, for otherwise there could never be an accident where any one is careless; and to that the author cites Schneider v. Provident L. Ins. Co. 24 Wis. 28, where this court held that £ there is nothing in the definition of the word “accident” which excludes negligence; that an accident may happen from an unknown cause, but it is not essential that the cause should be unknown; it may be an unusual result of a known cause and therefore unexpected to the party; that accidents often happen from such kinds of negligence.’

It does not seem necessary to pursue this subject further to show that the trial court most grievously erred in holding- that the terms “ accident ” and “ mere accident ” are synonymous and both exclude human fault called “negligence.” On the contrary they are well-nigh universally treated in legal opinions as opposites, the former being referable, among other causes, to responsible human agency. It will not do to rely absolutely, for the meaning that may be reasonabty ascribed to words, upon definitions thereof found in standard dictionaries. The use of words always precedes their recorded signification. When a particular use of a word becomes common, that use must be taken into consideration in construing a contract containing such word, regardless of whether the meaning can be found in any lexicon or not.

It follows from what has been said that “ accident,” as used in the bill of lading under consideration with reference to the occurrence for which liability of the carrier was limited to the stated value of the horse, may be said to include the result of negligence, and that the words “ caused by negligence as aforesaid,” in describing occurrences for which the appellant intended to recognize by express contract its liability, referred to the precedent words “in case of accident,” and that such reference is so clear as to leave no room for the application of the rule which guided the trial court, that in case of doubt between two meanings of a word, either of which is within the reasonable scope thereof, the one should be adopted which sustains rather than the one which limits common-law rights.

There is another and perhaps still stronger reason than the one we have given for holding that the parties to the contract under consideration used the word “ accident ” in its broad sense. There were at least four ways in which the property of respondent was> liable to be injured while in the' possession of appellant, three of which, in the absence of a special contract, were included in the carrier’s ordinary or extraordinary liability, which extended to the entire loss that might accrue to the shipper: (1) Acts of God or the public enemies; (2) wilful misconduct of the carrier; (3) negligence of tbe carrier; (4) occurrences not referable to either of the causes mentioned, and which would be damnum absque injuria except for the special responsibility of common carriers as insurers. For injuries caused in the way first mentioned the law exempted appellant from all responsibility. For injuries caused in the second way, it was doubtful, at least, whether appellant could secure exemption by contract. Chicago & N. W. R. Co. v. Chapman, 133 Ill. 96. For injuries caused in the third way it was within the power of appellan t, by a fair agreement, to fix the measure of its liability on a value basis of the property. For injuries caused in the fourth way, appellant was frée to obtain entire exemption of liability by contract, supporting the release of liability merely by a special freight rate. Schaller v. C. & N. W. R. Co. 97 Wis. 31. It follows that if we were to hold that the word “accident,” as used in the contract before us, means “ mere accident ”— occurrences falling within either the first or fourth way mentioned — we would convict the appellant of doing the absurd thing of stipulating for a limitation of responsibility where none existed at all, or for a limitation of liability to $100 where entire exemption from liability could be, and in fact was, secured in consideration of a special freight rate, as indicated by language in the contract exempting appellant from all liability in certain cases in consideration of the tariff rate mentioned. The contract can only be made to appear reasonable and sensible, as it seems, by holding that the parties intended to confine the entire exemption from liability to those occurrences that were proper subjects for a contract to that effect, and to limit the liability, in the event of loss or injury to the property by negligence, in the only way protection in that regard could be secured, that is, by a fair contract on a value basis of the property. That the parties had in mind the class of liabilities which are universally guarded against, so far as the law will permit it, by such a contract, seems clear. In this connection it is significant that in Chicago & N. W. R. Co. v. Chapman, supra, the form of contract contained the word “accident” as a designation of the occurrences which the clause limiting liability referred to, the same, substantially, as in this case; and 'it was treated without contention as including occurrences attributable to the carrier’s negligence and as binding to that extent; but the plaintiff was held entitled to recover because the loss was caused by wilful misfeasance of the carrier.

For the reasons given the judgment- appealed from must be modified by reducing it to $100, with legal interest from November 22, 1895, and costs as heretofore taxed, and affirmed as modified, costs in this court to go in favor of the appellant.

By the Court.— So ordered.