Altland v. Atchison, Topeka & Santa Fe Railway Co. ( 1909 )

Mr. Justice Freeman

delivered the opinion of the court.

The first of the grounds upon which defendant seeks to have the judgment of the Municipal Court reversed is that the bond and agreement executed by the plaintiff and in part set forth in the foregoing statement, are agreements to indemnify and save harmless the defendant against any liability, claim or suit arising out of a failure to accomplish the diversion of the car in question, and that these are valid releases which are a bar to the present suit.

By one of these instruments the defendant is fully indemnified against all suits and claims for losses of every kind and nature by reason of granting any request for diversion of goods from their original route or destination, “including any bona fide failure or delay to accomplish such diversion, change of consignee or inspection.” By the second instrument, in which the request is made in the present case that defendant will “endeavor to accomplish” the changes, the plaintiff agrees as a part thereof to save the defendant harmless from any liability and from claims of any kind whatever arising from “the inability or failure of said company or companies from any cause to accomplish the said change.” This phraseology is explicit, and if these agreements are valid this suit cannot be maintained. It appears that under sections 2174-5-6 of the California civil code a common carrier is permitted to limit its liability by special contract for ordinary negligence. That there was an effort made in good faith to “endeavor to accomplish” the transfer is, we think, apparent from the evidence. One copy of the telegram directing the transfer reached the agent in Chicago in due time. The duplicate copy attempted to be sent to the agent at Streator failed to reach its intended destination; but so far as appears the same effort was made and purpose shown to send it as in the ease of the copy which reached the Chicago agent. The effort having been made in good faith to endeavor to accomplish the diversion of the car as requested by the plaintiff, the question is whether these agreements made in California, and valid under the provisions of the civil code of that State, are enforceable in the case at bar in this State. . The sections of the California civil code referred to have been considered by the Supreme Court of that State. Among such cases are Michalitschke v. Wells Fargo & Co., 118 Cal. 683-689; Coit v. Western Union Tel. Co., 130 Cal. 657-661, and cases there cited, and Donion Bros. v. Southern Pacific Company, 151 Cal. 763-768. We are of opinion that these cases are conclusive as to the validity in California of contracts such as are here under consideration. It is said in the last of these cases above cited (p. 768) that section 2175 of the California civil, code “prohibits the carrier from entering into any contract in anticipation of gross negligence exonerating itself from liability therefor,” but that (p. 770) “so far as ordinary negligence is concerned the rule at common law has been abrogated by our code (sec. 2174) to the extent that the shipper and carrier may now contract for the purpose of limiting the liability of the latter therefor. The prohibition of the common law against a carrier limiting his liability for any kind of negligence is declared in this State by section 2175 only to apply to the limitation for gross negligence.” The construction by the California court of its civil code is we think applicable in the case at bar and controlling here as to the validity in that State of the agreements under consideration. The plaintiff’s assent thereto was manifested, as section 2176 of the California civil code requires it to be, when the instrument makes such “modification of the carrier’s obligations as in the present instance, by his signature to the same.”

Such being the law of the State in which the contract was made, and not having been made so far as appears “with a view to the laws of any other State, it must be governed by the law of the State where it was made.” Coats v. C. R. I. & P. Ry. Co., 239 Ill. 154-161. In that case the question is carefully considered and the cases in this State applicable are reviewed. The conclusion of the court on this matter is thus stated (p. 164): “Inasmuch therefore as the contract under the construction contended for by appellant, was partly to be performed in Iowa, it must, as to its validity, nature, obligation and interpretation be governed by the law of Iowa. ’ ’ In the case at bar the contract must in like manner be governed by the law of California, which exempts the defendant from liability under contracts such as those here involved.

Other questions are presented in the briefs, but in view of the conclusions stated, it is not necessary to consider them. The judgment of the Municipal Court must be reversed with a finding of facts.

Reversed loith finding of facts.