Page:The Green Bag (1889–1914), Volume 19.pdf/203

 i8o

THE GREEN BAG

CURRENT

LEGAL

LITERATURE

This department is designed to call attention to the articles in all the leading legalperiodicals of the preceding month and to new law books sent usfor review. Conducted by William C. Gkay, of Fall River, Mass. Huge corporations, both the so-called " trusts " and the railroads, receive an unusual amount of attention in the recent legal magazines, and several of the articles on the subject are of exceptional merit. The related subject of interstate commerce, both from an historical and a legal viewpoint, gets treatment commensurate with its vast importance to the nation. General readers will find much to interest them along those lines, and are also specially recom mended to Dean Bigelow's striking address on the conception of law. Readers interested in special lines will find many papers valuable for their purposes listed under the appropriate titles. BAILMENTS (Contract Against Liability for Negligence). In the February Harvard Law Review (V. xx, p. 297), Hugh Evander Willis writes on the actual and the ideal state of the law on " The Right of Bailees to Contract Against Liability for Negligence." His con clusion is: "We have admitted that if it were a purely private matter between the shipper or passen ger and carrier, as the New York courts main tain, absolute freedom of contract would be the best rule. Granting the public interest, it may be urged in favor of freedom of contract to relax and modify the strict rule of responsibility that it would enable carriers to reduce their rates of compensation (surely a public benefit), and if this did not lead to the introduction of new evils, against which it is the policy of the law to guard, it is of course an end to be sought. But the danger of leading in other serious evils is very great, well-nigh inevitable. The condition of our carrier service is bad enough under existing conditions; a relaxation of liability which would tend to make it more careless, more unobliging, more dangerous, would be intolerable. Again, it may be claimed, a common carrier ought not to be made an insurer without the rights of an in surer; that the only resemblance his business bears to the insurance business is his liability; and that it seems especially harsh and unjusti fiable to hold the common carrier liable for the frauds perpetrated on the consignor by third parties. The answer to this objection is that, if it is necessary to protect the interests of the public, the public, without other reason,

has a right to impose even such a liability as a condition to the exercise of the carrier's franchise. "In view of all these considerations and of the methods by which at the present time common carriers must carry on their busi ness, it seems to me it is against public policy to allow a common carrier to contract away his liability for negligence either in the carriage of goods or of passengers; but that public policy would not prohibit such contracts, clearly, in the case of the simple bailments not affected with a public interest, nor even in the case of innkeepers and other bailees affected with a public interest. The cases and legis lation supporting these propositions have the better reasoning. However, in the instance of common carriers, it must be admitted, as should be expected, the tendency of the law seems to be slowly the other way, towards the allowance of special contracts. Express mes sengers and persons riding on free passes may now make such contracts, a great many courts allow still further latitude, and in the further progress of the law the doctrine may encroach into the territory of passengers for hire and the territory of goods and live stock. But it does not seem as though the time were yet ripe for such changes, and haste in this direction should be made slowly. Before the clamor of private convenience is listened to it should be certainly and definitely decided that the interests of the public are safeguarded. The effect of letting the bars of public policy down and the free dom of contract in, where that policy has been tried, has not proven an unquestioned and