Grand Trunk Railway Co. v. Vogel, (1886) 11 SCR 612

Supreme Court of Canada

Grand Trunk Railway Co. v. Vogel, (1886) 11 S.C.R. 612

Date: 1886-03-09

The Grand Trunk Railway Co. of Canada (Defendants) Appellants;

and

Solomon Vogel (Plaintiff) Respondent.

The Grand Trunk Railway Co. of Canada (Defendants) Appellants;

and

George Morton (Plaintiff) Respondent.

1885: March 21, 23, 24; 1886: March 9.

Present: Sir W.J. Ritchie C.J. and Strong, Fournier, Henry and Taschereau JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Railway Company-—Carriage by railway—Special contract—Negligence—Liability for—Power of Company to protect itself from—Live stock at owner’s risk—Railway Act, 1868 (31 Vic. ch. 68,) sec. 20 subs. 4—34 Vic. c. 43, sec. 5—Cons. Railway Act, 1879 (42 Vic. c. 9).

[Page 613]

A dealer in horses hired a car from the Grand Trunk Railway Company for the purpose of transporting his stock over their road and signed a shipping note by which he agreed to be bound by the following, among other, conditions:—

“1. The owner of animals undertakes all risks of loss, injury, damage, and other contingencies, in loading, &c.

“3. When free passes are given to persons in charge of animals, it is only on the express condition that the railway company are not responsible for any negligence, default, or misconduct of any kind, on the part of the company or their servants, or of any other person or persons whomsoever, causing or tending to cause the death, injury or detention of any person or persons travelling upon any such free passes—the person using any such pass takes all risks of every kind, no matter how caused.”

The horses were carried over the Grand Trunk Railway in charge of a person employed by the owner, such person having a free pass for the trip; through the negligence of the company’s servants a collision occurred by which the said horses were injured.

Held,—Per Ritchie C.J. and Fournier and Henry JJ., that under the General Railway Act, 1868 (31 Vic. ch. 68) sec. 20 sub-sec. 4, as amended by 34 Vic. ch. 43 sec. 5, re-enacted by Consol Ry. Act, 1879 (42 Vic. ch. 9) sec. 25 sub-secs. 2, 3, 4, which prohibited railway companies from protecting themselves against liability for negligence by notice, condition or declaration, and which applies to the Grand Trunk Railway Company, the company could not avail themselves of the above stipulation that they should not be responsible for the negligence of themselves or their servants.

Per Strong and Taschereau JJ., that the words “notice, condition or declaration,” in the said statute, contemplate a public or general notice, and do not prevent a company from entering into a special contract to protect itself from liability.

APPEAL from a decision of the Court of Appeal for Ontario^[1] affirming the judgment of the Divisional Court in favor of the plaintiffs^[2].

There is no difference in these two cases as to the points in dispute between the parties, and the following statement of facts will suffice for both.

In Morton’s case there were other goods shipped besides the horses.

[Page 614]

The plaintiff shipped a car load of horses by defendant’s railway from Belleville to Prescott; the shipping note contained the following clauses:—

“1 The owner of animals undertakes all risk of loss, injury, damage, and other contingencies, in loading, unloading, transportation, conveyance, or otherwise howsoever, no matter how caused.

“2. The railway company do not undertake to forward the animals by any particular train, or at any specified hour; neither shall they be responsible for the delivery of the animals within any certain time, or for any particular market.

“3. When free passes are given to persons in charge of animals, it is only on the express condition that the railway company are not responsible for any negligence, default or misconduct of any kind, on the part of the company or their servants, or of any other person or persons whomsoever, causing, or tending to cause, the death, injury or detention, of any person or persons travelling upon any such free passes, and whether such free passes are used in travelling on any regular passenger train, or on any other train whatsoever, the person using any such pass takes all risks of every kind, no matter how caused.”

The train to which the car containing plaintiffs horses was attached collided with another train a few miles from the place of delivery, and the horses were injured; the plaintiff suffered loss from not being able to sell a number of his horses, and from delay and extra expense in getting them to Prescott.

It was not disputed that the servants of the railway company were guilty of negligence, and the measure of damages for which plaintiff, if defendants were liable at all, should have judgment, was agreed to at the trial.

The two causes were tried separately and resulted differently, in Vogel’s case a verdict being entered for

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the defendant, which was reversed by the Divisional Court, and in Morton’s case the verdict being entered for the plaintiff for the loss of the goods other than the horses and sustained by the Divisional Court; the judgment of the Divisional Court was, in both cases, sustained by the Court of Appeal, from whose decision the defendants appealed to the Supreme Court of Canada.

Osler Q.C. and McCarthy Q.C. for appellants:

After the passing of the Consolidated Railway Act of 1879 (42 Vic., ch. 9, D.) the appellant’s company were not subject to the provisions of the General Railway Act of the Dominion, and their statutory liabilities after this Act came into force were left as existing prior to the passing of the Act of 1875 (38 Vic., ch. 24).

Section 100 of the Act of 1879, which has reference only to sub-section 4 of section 25 of that Act, and not to the whole section, even if intended to apply to the appellant’s company is inoperative and ineffectual, as “the premises” or subject-matter of its application are not in any way provided for or indicated so far as they relate to the appellants.

Sub-section 4, section 25, whenever applicable, imposes a burden upon the railway company and restricts the right to contract as theretofore enjoyed, and is therefore subject to the rule of strict construction and ought not to be held binding upon the appellants unless by clear and unambiguous enactment. Maxwell on Statutes^[3].

Unless “the premises” in section 100 of the Act of 1879 are held to mean the provisions of sub-sections 2 and 3 of section 21 of the General Railway Act of 1851, or the corresponding section in subsequent Acts (for which position it is submitted that there is no foundation whatever) then there is no statutory provision

[Page 616]

limiting the appellant’s right to contract against their own negligence.

Even if the statute applies to this company, we contend that there is no liability cast upon them under the circumstances of this case.

The neglect or refusal for which a statutory remedy by action is given, has reference only to the statutory duty cast on the railways to start trains, to furnish sufficient accommodation to take, transport and discharge passengers and goods on due payment of tolls or fares legally authorized therefor.

This provision has no application, nor does it attempt to interfere with the ordinary liabilities and rights of the railway company as common carriers, but is a provision to enforce proper train service to prevent extortion by charge of illegal rates,—that is, rates in excess of those authorized by any special or general act, ex. gr. by section 14 of the General Act of 1851, and to provide against undue preference being given to particular shippers.

The plaintiff in this action does not seek to recover by virtue of any such neglect or refusal. His right of action, if any, existed outside of the statute, and it is submitted that the provisions of sub-section 4 only apply to the strict statutory action referred to in “the premises.”

In any event we contend that there is the clear right to make the special contract in question, and that upon its terms no liability is cast upon the appellants^[4].

Lastly, the plaintiff is bound by the contract upon the answer of the jury to the third question (found at page 176 of the report). Upon this point counsel referred to Burke v. South E.R. Co.^[5]; Watkins v. Rymill^[6].

[Page 617]

Dickson Q.C. for respondent Vogel, and Ermatinger for respondent Morton:

The defendants contention that the said shipping note constituted a special contract for the transportation of the said horses, and that the 17th condition thereof exempts them from responsibility, is not valid, because, a—it is contrary to the declared duty of the defendant to take, transport and discharge upon payment of the freight or fare legally authorized, the condition being absolute, offering no alternative or option. “A carrier cannot force a special contract on a customer.”—Ivatt on Carriers^[7]; Allday v. Great Western Ry.^[8]; Rooth v. North Eastern Ry.^[9]; Manchester Ry. Co. v Brown^[10]; Ruddy v. Midland Ry. Co.^[11] b.—The consignor did not know he was signing a special contract—Simons v. Great Western Ry. Co.^[12]; Parker v. The South Eastern Ry. Co.^[13]; Lawson on Carriers^[14].

In England the Carriers Act, 2 Geo 4 & 1 Will. 4th, c. 86 (1830) was passed for the more effectual protection of common carriers, and the Railway and Canal Traffic Act, 1854, 17 and 18 Vic. c. 31, was passed to make better provisions for regulating the traffic. These acts are not in force in Ontario, Hamilton v G.T. Ry.^[15], but they had been interpreted by the courts in England before our Parliament passed the various provisions for working of railways, in language very similar, in many respects, to that used in the Imperial statute.

Carr v; The Lancashire and Yorkshire Railway Company^[16], and Walker v. The York and Mialand Ry. Co.^[17], immediately preceded the passage of the Railway and Canal Traffic Act of 1854.

[Page 618]

The Dominion Act 34 Vic. cap. 43 sec. 5, was passed with the obvious intention of restricting the power of railway companies contracting themselves free from liability for loss however caused, which act the Ontario courts in Scott v. Great Western Ry.^[18] and Allan v. Great Western Ry.^[19] decided did not apply to railways incorporated before 1868; and the Supreme Court of Nova Scotia in 1871, in Dodson v. The Grand Trunk Ry.^[20], said that it might be advisable for Parliament to pass a law for the whole Dominion, founded on the Imperial Act of 1854. Similar sentiments have been expressed by the Court of Queen’s Bench and Common Pleas in Ontario.—Hamilton v. Grand Trunk Ry.^[21]; Spettigue v. Great Western Ry.^[22]; and Bates v. Great Western Ry.^[23]; whereupon Parliament, in 1875, passed 38 Vic. cap. 24, with the apparent design of restricting all railway companies as aforesaid.

In 1863 the House of Lords decided in Peek v. The North Staffordshire Railway Co.^[24]:—a.—That general notices and conditions were effectual only when they became in the particular case a contract or agreement and—b.—That a condition in a special contract exempting the company from all liability for loss caused by their own negligence was unjust and unreasonable.

The Dominion Parliament in the Act of 1868 (31 Vic. cap. 68 sec. 20), and the Act of 1871 (34 Vic. cap. 43 sec. 5), had enacted that goods should be taken, transported and discharged, and that any party aggrieved should have an action for damages against the company, from which action no notice, condition, or declaration, should relieve the company, if such damages arose from any negligence or omission of the company or its servants. Practically a re-enactment

[Page 619]

of the 1st clause of sec. 7 of the Imperial Railway and Canal Traffic Act, 17 and 18 Vic. cap. 31. “Notice or condition” had been judicially interpreted to mean contract and that unless it were assented to so as to form a contract it was inoperative.—Brown on Carriers^[25]; Peek v. North Staffordshire^[26]; LaPointe v. Grand Trunk Ry.^[27].

The Carrier’s Act—11 Geo. 4th, and 1 Will. 4th, cap. 68—in sec. 2 speaks of “some notice to be affixed in some public and conspicuous part of the office.” In sec. 2 instead of “public notice or declaration,” our Dominion Act says, “ any notice, condition or declaration.”

The defendants are liable in any view for delay in delivering, and for non-delivery of all the horses, (3 valued at $332.50 never were delivered)—Brown on Carriers^[28] Robinson v. G.W. R. Co.^[29].

The contract being compulsory by the defendants on the plaintiff, and in violation of their declared duty is a nudum pactum.—See per Richards J. in Sutherland v. Great Western Ry.^[30].

If the special contract has any effect it only relieves the defendants from their common law liability as insurers and not from loss occasioned by their negligence.—Czech v. The General Steam Navigation Co.^[31]; Martin v. The Great Indian Peninsular R. Co.^[32]; Ohrloft v. Briscall^[33]; Phillips v. Clark^[34]; D’Arc v. London and North-Western Ry. Co.^[35]; Allan v. Great Western Ry Co.^[36].

There can be no difference in principle or effect in a like contract for the carriage of 1 horse and one for 60,

[Page 620]

or for one or more car loads, and the form or request note shows that there is no difference in practice, it reading “all live stock shall be carried by special contract only,” and “when sent in quantities of less than one car load, stock will be charged at per head.”

Any condition assuming to discharge the carrier from all responsibility for negligence clearly proved, should be confined within the narrowest limit consistent with fair interpretation.—Hately v. The Merchant’s Dispatch Co.^[37]

The whole of clause 17 in the request note must be read to ascertain its meaning and effect, and the plaintiff submits its true construction is:—That animals are to be in charge of the owner or some one on his behalf, to whom a free pass will be given to feed and take care of them; the person accepting such free pass, taking, for his own person, all risks, and the company being exempted from all liability in respect to the feeding, and damages from the animals themselves such as kicking, etc., i.e.—To take all the risks of the journey, except what the defendants natually undertake to provide the means of carriage, and use reasonable care in the transit.—Rooth v. North-Eastern Ry. Co.^[38]. If it be shown that there are two sets of terms in the course of dealing with a carrier, the law accepts the one least favorable to the carrier. Ivatt^[39]; Phillips v. Edwards^[40]; Ruddy v. Midland^[41]. and the onus is on the carrier. ^[42] Kendall v. London and South-Western^[43].

Reference was also made to—Railway Co. v. Stevens^[44]; Willis v. Commissioners E. & N. A. Ry.^[45].

[Page 621]

Sir W.J. RITCHIE C.J.—The question to be decided in these cases, is whether or not the defendants were at liberty to protect themselves from liability by the terms of the special contract.

The Consolidated Railway Act, 1879, sec. 25 sub-sec. 4 provides:—

The party aggrieved by a neglect or refusal in the premises, shall have an action therefor against the company, from which action the company shall not be relieved by any notice, condition or declaration if the damage arises from any negligence or omission of the company or of its servants.

Sec. 2 sub-sec. 2 makes the above provision applicable to every railway constructed, or to be constructed, under the authority of any Act passed by the Parliament of Canada.

This Act repeals the Railway Act of 1875 (38 Vic. ch. 24) which has been held to apply to the Grand Trunk Railway, but enacts in the repealing clause that:—

All things lawfully done, and all rights acquired under the Acts hereby repealed or any of them, shall remain valid and may be enforced—under the corresponding provisions of this Act, which shall not be construed as a new law, but as a consolidation and continuation of the said repealed Acts.

At the trial, Wilson C.J. gave judgment for the defendants (in Vogel’s case) after assessing the damages to enable the plaintiff to obtain a verdict without a new trial; the learned judge held that the Consolidated Railway Act, 1879, did not apply to this company.

The Divisional Court reversed this judgment, and ordered a verdict to be entered for the plaintiff for the damages assessed.

The Court of Appeal were divided in their opinion and the verdict sustained; Burton and Patterson JJ., who dissented from the judgment of the Divisional Court, held, that even if the Consolidated Railway Act applied to the company, they were still not debarred from making a special contract to relieve them from liability.

[Page 622]

After a careful examination of all the statutes bearing upon this case, I agree with Mr. Justice Osler:—

That these defendants are subject to the statutory law which takes away the defence in an action of this kind where the loss has been occasioned by the negligence of the company or its servants.

The statutory obligation imposed upon a railway company is:—

To start trains at regular hours, and to furnish sufficient accommodation for the transport of all passengers and goods, &c., and any party aggrieved by any neglect or refusal in the premises shall have an action therefor against the company, from which action the company shall not be relieved by any notice, condition, or declaration, if the damage arises from the negligence or omission of the company or its servants.

Any neglect or refusal in the premises. What are the premises? To take, transport and discharge, inter alia, such passengers and goods, upon payment of the freight or fare legally authorized therefor; if the goods then are not transported and discharged, by reason of any neglect or refusal, clearly an action lies; and is there any difference whether the neglect is in not providing sufficient accommodation, or in not sending the goods forward in the first instance, or having sent them forward in not transporting them to, and discharging them at, the place of destination, but so negligently dealing with them that such transport and discharge was prevented?

I think the object of the legislation was to prevent railway companies from escaping liability by entering into contracts whereby they could free themselves from liability for the neglect of themselves or their servants, whether by way of notice or condition or declaration, be the same by way of contract or otherwise; in other words, to prevent them from contracting themselves out of liability for negligence. To limit the clause as contended for would, in my opinion, entirely frustrate the intention of the legislature, or enable the companies to do so with impunity.

I think, therefore, the appeal in this case should be

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dismissed.

STRONG J.—The first difficulty we have to deal with in deciding this appeal, is to ascertain the legislation actually in force; there have been so many alterations in the statutes, and these alterations have been effected in such a slovenly manner, that it requires frequent perusals and much comparison of the different enactments, before it is possible to say what has been repealed and what remains standing, all of which, with a little pains and care in the arrangement of the statutes, might have been ascertained at a glance.

By the General Railway Act of the Dominion, 31 Vic. ch. 68, passed in 1868, it was enacted by the 20th sec. as follows:—

Sub-sec. 2. The trains shall be started and run at regular hours to be fixed by public notice, and shall furnish sufficient accommodation for the transportation of all such passengers and goods as are within a reasonable time previous thereto offered for transportation at the place of starting and at the junctions of the railways, and at usual stopping places established for receiving and discharging way passengers and goods from the trains.

Sub-sec. 3.—Such passengers and goods shall be taken, transported and discharged, at, from and to, such places, on the due payment of the toll legally authorized therefor.

Sub-sec. 4—The party aggrieved by any neglect or refusal in the premises, shall have an action therefor against the company.

By the fifth section of 34 Vic. ch. 43 (passed in 1871), the 4th sub-sec. of sec. 20 of the Act of 1868 was amended by adding the following provision:—

From which action the company shall not be relieved by any notice, condition or declaration, if the damage arises from any negligence or omission of the company or its servants.

So far, the enactments just set forth were not applicable to the Grand Trunk Railway Company, but by the 38 Vic. ch. 24, (passed in 1875) the General Railway Act was further amended, and by sec. 4 it was declared that:—

This Act and the 50th sec. of the Railway Act, 1868, as hereby

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amended, and sec. 20 of the Railway Act of 1868 as amended by sec. 5 of the Act 34 Vic., cap. 43, shall apply to every railway company heretofore incorporated, or which may hereafter be incorporated, and which is subject to the jurisdiction of the Parliament of Canada.

The Grand Trunk Railway Company was and is, beyond question, a railway subject to the jurisdiction of the Parliament of Canada, inasmuch as it is a railway excluded from the jurisdiction of Provincial Legislatures by sub-sec. 10, of sec. 92 of the British North America Act, as being a railway extending beyond the limits of any single Province.

In 1879 the Railway Act of 1868, as amended by the subsequent enactments before mentioned, was, by the statute of 42 Vic. ch. 9 sec. 102, repealed, but by the 2nd, 3rd and 4th sub-secs, of sec. 25, the foregoing provisions of the Act of 1868, as amended by the Act of 1871, were re-enacted; the whole Act was not made applicable to all railways subject to the jurisdiction of the Parliament of Canada, but only to such railways as had been, or should be, constructed under the authority of any Act passed by the Parliament of Canada, by which expression I understand the Parliament of the Dominion. By the 100th sec, however, it was declared that sub-sec. 4 of sec. 25 should:—

Apply to every railway company theretofore incorporated, or which might thereafter be incorporated, and subject to the jurisdiction of the Parliament of Canada

a provision which manifestly included the Grand Trunk Railway Company. Therefore we have, as applicable to the present appellants, this sub-sec. 4 of sec. 25, standing alone, not preceded by the 2nd and 3rd sub-secs, which it had followed in the Act of 1868, as amended by the Act of 1871.

Although this was undoubtedly a very clumsy and confused mode of expressing the intention of the legislature, it still appears to me that sub-sec. 4 can easily

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be construed in the same way the courts below have construed it, by reading into it, in substitution for the words “the premises,” the provisions of the foregoing sub-sections of section 25 of the Act of 1879; and so read, its effect will be precisely the same as if sub-sec. 4 and all the sub-clauses of sec. 25 which precede it, were set forth in extenso. To say that a party shall have an action for any refusal or neglect to take, transport and discharge goods, is equivalent to saying that it shall be the duty of the railway company to take, transport and discharge goods, and that the party aggrieved by any neglect or refusal so to do shall have an action therefor. Sub-sec. 4 therefore, read alone but construed in the way suggested, imposes upon the railway company the duty of taking, transporting and discharging goods offered for carriage; the effect of this legislation must therefore be to make a railway company to which it applies common carriers of goods; or, at least, to impose upon them the same duties in regard to receiving, carrying and delivering as those to which, by the common law, common carriers are subject in respect of the carriage of goods.

If I did not think this appeal would be decided on other grounds, I should have had to consider whether the word “goods” used in this statute included horses and cattle and other live stock, a point on which my first impression is altogether against the plaintiff; as it appears to me, however, that the case may be disposed of on other grounds, I need not enter upon this consideration.

It cannot be doubted that clause 17 of the special contract under which the horses were carried in both cases was, in its terms, quite sufficient to exempt the railway company from liability for “loss, injury, or damage” happening to the animals in the course of transit, though such injury should be caused by the

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negligence of the appellants’ servants, unless the statutory provision in question invalidates the stipulation for such exemption; the cases referred to in the judgment of Chief Justice Moss, in the case of Fitzgerald v. The Grank Trunk Ry. Co.^[46], are cited by Mr. Justice Patterson as sufficient authorities for this proposition, in which I agree with him. It is equally clear from the decisions in the same case of Fitzgerald v. The Grand Trunk Ry Co.^[47], that the document signed by the plaintiff in Morton’s case having the caption of “Release and Guarantee,” is insufficient for this purpose, and that the company are not thereby exonerated from the consequences of accidents happening through the negligence of their servants. That the injuries in both these cases did arise from the palpable neglect of the company’s servants, is a fact which is not and could not have been disputed.

What we have to determine then, in order to decide this appeal, may be included in two questions stated as follows:—

First. Does this statutory prohibition of exemption from liability apply at all to a case like the present where the goods were not received by the railway company in the ordinary way as common carriers, to be loaded by the company’s servants, actually placed in their possession, and carried under their care and supervision, but under a special contract for the hire of a car, into which the plaintiff was to be at liberty to put as many or as few horses as he chose, which, during transit, were to remain in the possession, and to be under the exclusive care, of the plaintiff or his servants, thus differing from the ordinary contract impliedly entered into by a common carrier, who receives into his own possession goods tendered to him for carriage?

[Page 627]

Secondly, assuming that the statute does apply, and that we must consider these horses as having been tendered to, and received by, the appellants to be carried as common carriers, and subject to all the obligations and responsibilities which attach to such carriers, is there anything in the 4th sub-sec. of sec. 25 which invalidates a special contract expressly entered into, and signed by the consignor, restricting the ordinary common law or statutory liability of the carrier?

For the purpose of determining these questions, I of course assume that the horses are “goods” within the meaning of the statute, though I repeat I do not intend so to decide.

Although the order in which these questions are above propounded is the more natural and logical, yet it will be convenient first to consider that last stated. The solution of this, it is evident, must depend on the interpretation to be placed upon the latter part of the 4th sub‑sec, or rather, upon the meaning of the words “notice, condition or declaration” there contained. The Queen’s Bench Division and the Court of Appeal (the judges in the latter court being equally divided) have held that these words do comprise special contracts expressly entered into and signed by the consignors, as in the present instance. After giving the well considered judgments delivered by the learned Chief Justice in the Queen’s Bench Division, and by Mr. Justice Osler in the Court of Appeal, the most attentive and respectful consideration in my power, I am compelled to differ from the conclusion at which they arrived.

As before stated, the effect of sub-sections 3 and 4 of sec. 25, so far as regards the receipt, carrying and delivery of goods, imposes no other or greater obligations on the railway companies subject to it than it would be liable to at common law if it had been itself

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a common carrier of the particular goods in question. In the view which I take, it is not necessary to decide whether it sufficiently appears from the evidence that the Grand Trunk Ry. Co. had so generally dealt with the public, and held itself out, as to make it, at common law and independent of statutory enactments, a common carrier of horses and other live stock; I will, however, assume, for the present purpose that not only are horses “goods” within the meaning of that word in the statute, but that the Grand Trunk Ry. Co. are proved to be common carriers of horses at common law. If it were necessary to decide this last point, I should, however, at least share the doubt expressed by Chief Justice Cameron.

Then conceding that these horses were delivered into the possession of the railway company, and were actually received by them to be carried as common carriers upon the terms stipulated by the company contained in the 17th clause of the special contract, and that the 4th sub-section was applicable, I must still hold that the plaintiffs in these cases are not entitled to recover so far as respects the injuries to the horses. I have no doubt that the word “neglect” has reference to negligence in carrying as well as negligence in omitting to carry; this, indeed, is implied in what has been already said—that the intention of the legislature was merely to impose on the railway company the liability of a common carrier. The grounds upon which I rest my judgment in this aspect of the case are that the words, “notice, condition or declaration,” do not bear the construction that the court below has put upon them; that, on the contrary, they must be restricted in the way Mr. Justice Burton has pointed out; that they do not mean terms expressed in a special contract actually signed by the consignor, but in the language

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of Mr. Justice Burton, “terms, published by the company,” of their own act and will, on which they are “willing to carry goods.”

Allusion has been made in the judgments of some of the learned judges in the court below, to the history of the law in England as regards the restriction by carriers of their general common law liability by special contracts. At common law it was always within the powers of common carriers to relieve themselves by contract from the onerous responsibilities which the law, for reasons once practical, but long since become historical cast upon them. This freedom of contract was, however, found to be liable to abuse, inasmuch as carriers published general notices and conditions on which they announced they would alone accept goods to be carried, which notices and conditions, it was held, were, if so published that knowledge of them might reasonably be imputed to consignors, considered as imported into, and made part of, the contract for carriage; this was thought an unreasonable state of the law, not because it was considered unreasonable that carriers should be at liberty to relieve themselves from liability by contract, but because it was considered unfair that they should do so in this indirect way. To remedy this, the first Carriers Act, 11 Geo. 4th and 1 Will. 4th, ch. 28 was passed, which qualified this power of limiting liability by notice. In the 4th section of this Act we find the words “public notice and declaration” used in a proviso that such notices and declarations shall not, save in certain cases, have the effect of relieving from responsibility. I merely point this out as showing from whence the expression “notice, condition and declaration,” used in this sub-section 4, now under consideration, is originally derived, and that it is, in this first Carriers’ Act, used in connection with the word “public.”

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In the next legislative regulation of carriers’ contracts which was applied in England, “The Railway and Canal Traffic Act, 1854,” which was passed after the whole system of the inland carrying trade in England had been changed by the construction and use of railways, we find in the 7th section these same words now under consideration, “notice, condition or declaration.” The first part of that section is as follows:—

Every such company as aforesaid shall be liable for the loss of, or for injury done to, any horses, cattle or other animals, or to any articles, goods or things, in the receiving, forwarding, or delivery thereof, occasioned by the neglect or default of such company or its servants, notwithstanding any notice, condition or declaration made or given by such company contrary thereto or in any wise limiting such liability, every such notice, condition or declaration being hereby declared to be null and void.

The construction placed on these words by the English courts has been, that the words “notice, condition or declaration” refer to general notices, and do not exclude the right to make special contracts. Thus Jarvis C.J., in Simons v The Great North-Western Railway Co.^[48], referring to the effect of this part of the section, says:—

General notices to limit liability shall be null and void, but the company may make special contracts with their customers provided they are just and reasonable.

This last observation, of course, refers to the latter part of the section 7 and has no application here. The purpose for which I refer to this section, and the construction which has been placed upon it in England, is to show in the first place, that these words which we find in our own statute, and which we are now called upon to construe, were borrowed from the English Act, and therefore we are entitled to presume that it was intended they should have the same meaning here, as was placed upon them there by the English courts, namely; that it was intended by the expression to

[Page 631]

exclude a limitation of liability by general notices, and that it was designed for this purpose only.

It is not necessary, however, to have recourse to the decisions of the English courts as establishing the proper construction of these words; taking these words “notice, condition, or declaration” by themselves, without assistance from any authorities, it seems apparent that they are not sufficient to disentitle the railway companies to the benefit of special contracts limiting their liability, especially when it is considered that it had been the universal practice of carriers to endeavor to exonerate themselves by general public notices; the words “notice and declaration” so read must, as I think every one will admit, clearly have reference to the general notices previously in use; the word “condition” may be more ambiguous, but we are surely bound to interpret it on the principle noscilur a sociis, and when we find it associated with words which clearly have reference to general notices, the unilateral acts of the company, we must limit, or rather fix, its import accordingly. Upon the whole, my conclusion is that the legislature, desiring to do away with general notices, adopted the phraseology which had been deemed apt for that purpose in the 7th section of the English Act of 1854, but not intending to limit parties in making special contracts to such as the courts should deem just and reasonable, but intending to leave the railway company full freedom of contract in that respect, did not, as was done by the English Act, proceed to provide for such special contracts. I think that this construction is inevitable when we consider that it is a universal principle of statutory construction that every presumption must be made against an intention to interfere with the freedom of contract, and when we advert to the serious consequences which would follow if railway companies were not allowed to protect

[Page 632]

themselves, to some extent, against liability for loss. even from the negligence of their own servants, by fair and reasonable conditions applicable to the conveyance of property of extraordinary value, I cannot think that any such intention existed.

But I place my judgment not so much upon this consideration, as upon the utter inadequacy of the words of the Act of Parliament to warrant such an interpretation.

I am therefore of opinion, that making all the assumptions in the plaintiff’s favor which have been stated, and treating the appellants in these cases as common carriers, there was nothing in the statute law to preclude them from qualifying their liability in the way they have done by the stipulations contained in these contracts.

Next we have to consider whether the appellants can be considered as coming within the provision contained in the 4th sub-section of section 25 of the statute of 1879. I venture to say that they cannot be so considered; in the first place, it is plain, upon the evidence taken in connection with the terms of the special contracts, signed by the parties, that the railway company never were in possession of the horses in question which always, whilst in the car provided by the company for their carriage, were in the possession of their respective owners. I take it to be essential to the liability of a common carrier that he should be entrusted with the possession of the property carried, and that when the possession is retained by the owner, the liability is so modified that it is no longer open to the owner to insist on any greater responsibility than that which in all cases attaches to acts of negligence, and which liability may therefore be excluded by contract without reference to any restriction on the liberty of contracting applicable to common carriers,

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Again, viewing this, as Mr. Justice Burton puts it, as an action on the statute, the liability to the action given by the 4th sub-section and the disability which is imposed as to escaping from such liability by “notice, condition or declaration” (even if we interpret these words as including “contract”) only applies to goods “taken” by the railway company for transportation, the word “taken” as here used, manifestly meaning taken into the possession of the railway company. The cases which have been decided as to passengers’ luggage seem therefore not without application here. It has been held that railway companies are to be deemed common carriers of a passenger’s luggage entrusted to the care of their servants, but that if the passenger chooses to retain control of the luggage himself, the company is not to be considered as common carriers of it, but is liable only for loss by actual negligence. This argument is not, I conceive, met in the present case by the terms of the contract which acknowledges the receipt of the horses, a receipt being always susceptible of explanation, and here the evidence shows, beyond all question, that the horses from the time they were shipped were under the care and control of the owner who was carried upon a free pass, expressly in order that he might have such care and control.

The true legal definition of the contracts entered into in these cases by the plaintiffs with the appellants, was, I conceive, that propounded by Mr. Justice Patterson, namely, that the company let to hire to the plaintiffs a railway car for the carriage of horses, leaving it to the plaintiffs to load such cars with as many horses as they might think fit, and further agreed to draw such cars in their trains. Such being the effect of the agreement between the parties, the railway company could no more be said to be in the possession of the horses than could the owners of a steam tug employed to tow a ship be said

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to be in possession of the cargo. A class of cases decided on charter parties may also be referred to, not, perhaps, as affording analogy from which it would be safe to reason, but as illustrating the nature of the relationship between the railway company and the owners of the property in the present case. It has been held that when, by a charter party, the owner retains control of a ship, the master and crew being in his employ he is to be deemed to be in possession of the cargo which, through his servants, is in such cases under his care and control, the contract only giving the charterer the right to the use of the ship for the carriage of his goods; but when the charter party amounts to a demise of the vessel, as it is held to be when the master and crew are employed by the charterer, the ship-owner is not considered as in possession of the cargo or liable in any way for it. It is no answer to this to say that no care of the owner could have prevented the injury in the present case; the argument based on the possession being retained by the owner, is only used to show that the property here was not carried by the defendants either as common carriers or under the statute, not as showing that the appellants would not have been liable for the negligence of their servants, if there had not been a contract exonerating them from such responsibility; in other words, the appellants liability depends on whether they carried as common carriers, either at common law or under the statute, and this they cannot be said to have done if they had not possession of the horses; so that possession becomes the test of the legal validity of the stipulation which they exacted, that they should not be so liable.

It is, in my opinion, sufficient to show that the case has not been brought within the terms of the statute literally construed, that is, construed as in any case we are bound to construe a statute, but more especially so

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bound when it is sought, as here, to impose legislative restrictions on the right of contracting freely; and therefore the consequences of such a construction would be of insufficient weight to authorize us to depart from the plain meaning of the words of the enactment. But no difficulty arises from the consideration that unreasonable or unjust consequences are likely to arise in the present case; if an owner wishes his horses carried by the railway company as common carriers, all he has to do is to tender them for transportation, and upon the payment of the proper charges the company will be bound to carry them if they are to be deemed generally common carriers, or if the statute applies to such property. On the other hand, by holding that under a contract like the present the railway company are unable to qualify their liability, we should go far towards invalidating the arrangements under which a most important branch of the inland carrying trade is now carried on; I allude to the arrangements between express companies and railway companies. If we held the appellants incapacitated from discharging themselves from liability by contracts like the present, upon what principle can it be said that railway companies, within the statute of 1879, can exempt themselves by contract, as. they always assume to do, from liability to express companies in respect of the goods and property carried by the latter; in the case of express companies the goods are under the care and control of their servants to no greater degree than the horses in the present case were under the care of their owners; in each case the car is the property of the railway company, and in both alike, the agreement between the parties is resolvable into a contract to let to hire a car and to haul it. This consideration, in my judgment, greatly strengthens the construction which the mere words of the Act seem to call for.

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Again, it is more for the convenience of the public that valuable property, such as horses and live stock, should be conveyed in this way, under the care and control of persons used to their management, than that it should be left to the servants of the railway company to attend to their wants in respect of food and water and their transhipment when called for.

It may be that an improvement in the law would be wrought by an amendment making it incumbent on the courts to determine whether special contracts are reasonable or not, as was done in England by the Act of 1854, but against the good policy of such enactments we have the high authority of some of the Lords who heard the late case of The Manchester Railway Company v. Brown^[49], particularly that of Lord Bramwell. Upon the whole I do not see that any great public inconvenience will result from holding that the 4th sub-section of the statute of 1879 does not apply to special contracts, provided consignors will take the trouble to read the special contracts which are presented for their signatures. As the Chief Justice remarked at the trial, if people will not read these conditions, it is their own fault if they operate as a surprise upon them when a loss takes place.

What is before said has, of course, reference only to the horses; as regards the other goods in Morton’s case the appellants are liable for the loss in that respect upon the general ground of negligence, though they carried not as common carriers, nor under the statute, but under the special contract, inasmuch as the document headed “Release and Guarantee” did not, as before pointed out, exonerate them from such liability. In Morton’s case the verdict should therefore be entered for the plaintiff for $89. The learned judge who heard Morton’s case, discharged the jury and found that the

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horses were carried under the special contract; in. Vogel’s case however, the jury expressly found that the horses were not carried under the special contract, “unless so far as that answer was qualified by their answer to the third question.” The answer to the third question is that the plaintiff supposed the terms of the request note and shipping bill were of the like nature as those of other papers he had signed for the carriage of horses by the Grand Trunk.

I suppose that, strictly speaking, the question should have been left to the jury, whether Fanning signed the request note as the agent for the plaintiff, but this fact was not disputed; nor was it disputed that the horses were carried under the contract, nor pretended that they were carried under any other contract than that contained in the request note and shipping bill. Under the Judicature Act we may, I think, supply this finding; rule 321 seems to authorize this, and the corresponding English rule has been so applied. It would appear, therefore, that notwithstanding the finding of the jury, effect may be given to the law as before stated applied to the facts in evidence, without going through the useless formality of another trial.

My conclusion is, therefore, that the appeal should be allowed with costs in both courts, and judgment entered for the plaintiff for $89 in Morton’s case and for the defendants in Vogel’s case.

FOURNIER J. concurred in the judgment delivered by the Chief Justice.

HENRY J.—I am of the opinion that the appeal should be dismissed in the both cases. I think in one of the cases there was a reduction made for the carriage of the horses.

My opinion is that in both cases the party is entitled to recover the whole of the loss. I think the

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special agreement did not alter the liability, and that the party is entitled to recover not only for the other goods, but also for the horses.

TASCHEREAU J.—I would have allowed these appeals for the reasons given by Burton and Paterson JJ. in their dissenting opinions in the court below. I can see nothing in the statute to prevent this company from making special contracts for the carrying of goods. Why should parties desirous of making such contracts be deprived of their common law right to do so? If, for instance, a party wants a special train—hires a special train—to carry his goods, can he not make a special contract with the company about it? Has the legislature deprived him of that right? It would require express words to bring me to the conclusion that they have done so. I cannot find them in the statutes. Here it was a special car that the plaintiff hired. He made a special contract for it with the company. One of the conditions of that contract was that the company should not be liable for damage occasioned by accident. I can see nothing illegal in such a condition, as the statutes stand.

Appeals dismissed with costs.

Solicitors for appellants: Messrs. Hoyles & Aylesworth.

Solicitor for respondent Vogel: Geo. D. Dickson.

Solicitors for respondent Morton: Ermatinger & Robinson.