our present notions of tort liability or our current theories as to contractual obligations. Nevertheless the abstract question now propounded is of a kind which might have interested a jurisconsult more deeply than it is likely to interest the student who for the time being is giving his specific attention to particular topics of our law. However this may be, the attempt to make a cross section through several legal shoots, so to speak, may prove interesting at least to the extent that some common pattern is discoverable.

It is as impossible as it is undesirable to reason about such a question without starting with the particular conclusions reached in deciding groups of cases which must be relied on as to the logical antecedents of the generalizations which are to be made, for it is characteristic of legal reasoning that it necessarily involves an exercise of judgment as to the weight to be given to countervailing analogies. The aggregate judgment of many minds dealing with similar questions with the common object of reaching the best attainable result will unconsciously be influenced by sociological considerations, and thus the law will adapt itself in form and substance to the conceptions of right and justice which prevail in the social organization of which it is the natural product. This unconscious adaptation through natural growth will probably be more effectual in the long run in keeping the law subservient to the fundamental needs of the social organization than any conscious attempt to readjust it to meet the particular emergencies real or imaginary which any rapid change in social conditions may seem to demand. At any rate there is always the possibility of resort to specific legislation to adapt it more rapidly to such changes of condition. Experience, however, seems to indicate that legislation is an awkward tool in that it lacks the valuable feature of aggregate judgment based on many specific instances which is of great weight in the process of reasoning by countervailing analogies.

The branch of the law furnishing the aptest material for the construction of an abstract rule as to validity of contractual limitations of liability for negligence is that of carriers of goods and passengers. The treatment together of carriage of goods and carriage of passengers, the one involving a bailment, the other constituting a portion of the personal services which one man may undertake to render to another, finds its justification only in the fact of a common conception of public calling,—a conception in it

self due wholly to sociological considerations and, as applied in the law, rather anomalous. But the common-calling feature has so potently affected the particular conclusions reached within the scope of this branch of the law that it may well be found to furnish the explanation of many distinctions which would otherwise seem artificial.

A rule peculiar to our system of law as distinct from the civil law in relation to the carriage of goods, that the public carrier is absolutely liable for all loss not due to an act of God or the public enemy (as the rule somewhat crudely was stated when first formulated), naturally gave rise almost at once to the practical question whether the common carrier undertaking to discharge his public functions in a particular case might nevertheless by agreement with the shipper be relieved in some measure from this extraordinary liability. And at first no reason seemed to suggest itself why the parties to the transaction might not by an agreement fairly entered into affect the measure of the common carrier's responsibility. The difficulty encountered in particular cases was to determine what constituted an agreement that in the particular case the liability of the carrier should be less than that otherwise fixed by the rule of law. In the English courts various considerations resulted in the general acceptance of the conclusion that by reasonable notice the carrier might thus limit his liability, although there was a continuing protest against the lessening of a responsibility which it was insisted had originally been recognized on broad reasons of public policy dictated by the nature of the relation which the public carrier has assumed towards society. The English courts in giving consideration to the argument that the carrier was misled by the shipper who, failing to respond to the requirements of a notice calling upon him to state any exceptional value of the package, had practically committed a fraud upon the carrier which should deprive him of any redress, were nevertheless already disturbed by the practical consequence that in recognizing the exemption from liability by the giving of notice, they were enabling the carrier to practically exempt himself from liability even for negligence where the shipper chose for reasons sufficient for himself to omit a declaration of exceptional value. But they seem to have contented

1

1 Harris v. Packwood, 3 Taunt. 264 (1810); Sleat v. Fagg, 5 B. & Ald. 342 (1822); Batson v. Donovan, 4 B. & Ald. 21 (1820); Riley v. Horne, 5 Bing. 217 (1828).

themselves with the exclusion from the benefit of their rule of a carrier which had been guilty of gross negligence or misfeasance occasioning the loss, and the holding of such carrier liable for the entire value of the package notwithstanding the failure of the shipper in response to the requirements of a reasonable notice to disclose such value to the carrier.2

The English courts had assumed in their decisions as to the effect of notice, that the parties to a contract for transportation were at liberty to enter into an agreement as to the extent of the carrier's liability, made by the carrier specially accepting the goods for transportation on conditions different from those imposed by law in the absence of agreement, and they had assumed that the shipper in effect assented to terms of shipment stated by the carrier of which he had reasonable notice if he tendered his goods for shipment without objection to such stipulations; and this was the assumption of the English courts which was first dissented from in the American courts to which similar questions were submitted. It is to be borne in mind in explanation of the readiness with which the American courts reëxamined the whole question of the validity of limitations on carrier's liability that these questions had not arisen in England, or at any rate had not reached any definite solution there until after Independence, so that the conclusions of the English courts had no such antiquity as to justify their being regarded as a part of the common law accepted in this country.3 The public-service feature of the carrier's business had become more prominent by reason of the introduction of transportation by vehicles operated by steam power resulting in an enormous extension of such business and its concentration in the hands of corporations by whom the general introduction of limitation of liability by notice had been resorted to. It was not unreasonable, therefore, that in the face of these changed conditions the American courts should reach the conclusion that no mere general notice should be assumed to have been assented to by the shipper as against his right to have his goods carried in accordance with the common-law rule of the carrier's extraordinary liability.1

2 Sleat v. Fagg, 5 B. & Ald. 342 (1822).

Fish v. Chapman, 2 Kelly (Ga.) 349 (1847).

Hollister. Nowlen, 19 Wend. (N. Y.) 234 (1838); Moses v. Boston & Maine R. Co., 24 N. H. 71 (1851); Jones v. Voorhees, 10 Oh. St. 145 (1840).

But in connection with the question as to the policy of permitting a carrier to limit his liability by notice, even though brought home to the shipper before shipment had been made, arose at once the further question whether limitation of the strict rule of common-law liability was not against public policy and therefore invalid; for the recognition in England of special acceptances had been unquestioned, although there had been a constant difference of opinion among the judges as to the soundness of the rule permitting limitation by notice; and here again there was a substantial repudiation in America of the views of the English courts, it being insisted that as the strict liability of the carrier was a rule of public policy, a contract limiting it was against public policy. This was the broad position taken by the Supreme Court of New York in Gould v. Hill 5 and in early cases in Pennsylvania. On the other hand there was a strong inclination to hold that the shipper was competent to make any arrangement he saw fit as to the extent of the liability assumed by the carrier with the suggestion that no question of public policy was involved in the making of such a contract. According to this view the shipper might, if he saw fit, by contract relieve the carrier of the obligation of his public calling and treat him as a private carrier. This line of argument was sufficiently persuasive to induce the Supreme Court of New York to abandon its first announcement in Gould v. Hill, supra, and to sustain contracts by which the carrier was relieved from liability for loss by fire, or even apparently relieving the carrier from liability by a stipulation that the shipment should be at the owner's risk; 10 and the Court of Appeals of New York sustained the validity of such a contract exempting the carrier from all liability save for negligence."

Without citing the innumerable cases constituting the great preponderance of authority in this country, in which it is held that a contract limiting the carrier's liability is not valid if it relieves him from the consequences of negligence, it is interesting to note a peculiar doctrine arrived at in New York, and perhaps not

5 2 Hill (N. Y.) 623 (1842).

6 Beckman v. Shouse, 5 Rawle (Pa.) 179 (1835).

7 New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. (U. S.) 344 (1848).

8 Kimball v. Rutland & Burlington R. Co., 26 Vt. 247 (1854).

9 Parsons v. Monteath, 13 Barb. (N. Y.) 353 (1851).

10 Moore v. Evans, 14 Barb. (N. Y.) 524 (1852).

11 Dorr v. New Jersey Steam Nav. Co., 11 N. Y. 485 (1854).

elsewhere, that the public policy which vitiates the limitation of liability for negligence does not extend far enough to defeat a contract limiting the carrier's liability for negligence of servants.12 No explanation of this curious rule of public policy seems imaginable save that of survival of some unconscious, or at any rate unexpressed, conception of limitation of bailment liability by which the bailee had freed himself from any other duty than that of procuring a service to be performed by someone else; for plainly a bailee, as distinct from one undertaking to procure service for another, must under every principle of policy be chargeable for the faults of his servant, and unless he may contract against his own negligence he cannot contract against that of servants engaged for him in the performance of the duty undertaken, whatever it may be.

Another anomaly creeping into the law as to limitation of carrier's liability was that of a distinction between negligence for which it was assumed the carrier might be relieved by contract, and some kind of fault or misfeasance called gross negligence from which a contract exemption would afford him no protection.13 The difficulty of distinguishing between gross negligence or wilfulness on the part of the carrier or a servant from the consequences of which the carrier cannot be relieved by contract, and that ordinary negligence which Illinois, like New York, assumes to be

12 Mynard v. Syracuse, etc. R. Co., 71 N. Y. 180 (1877); Bissell v. New York Cent. R. Co., 25 N. Y. 442 (1862). But this rule, although sanctioned by a long line of cases in which it had been more often assumed or distinguished than directly applied, was questioned as to its soundness in Nicholas v. New York Cent. & H. R. R. Co., 89 N. Y. 370, 373 (1882), in which it is said that "a contract exempting a bailee for hire from the obligation of care on his part, in respect to the goods in his custody, is, to say the least, unreasonable, and, while the law does not go to the extent of making it void on that ground, yet the qualification that to have that effect it must be plainly and distinctly expressed, so that it cannot be misunderstood by the shipper, is so obviously just, in view of the methods of business, and the want of knowledge of the force and construction of contracts on the part of the great mass of persons dealing with the transportation lines of the country, that it ought not to be relaxed."

13 Chicago & N. W. Ry. Co. v. Chapman, 133 Ill. 96, 24 N. E. 417 (1890). The rule thus recognized was originally stated in Illinois in this language: "We think the rule a good one, as established in England and in this country, that railroad companies have a right to restrict their liability as common carriers, by such contracts as may be agreed upon specially, they still remaining liable for gross negligence or wilful misfeasance, against which good morals and public policy forbid that they should be permitted to stipulate." Illinois Cent. R. Co. v. Morrison, 19 Ill. 136, 141 (1857).