LINDSAY v. CHICAGO, B. & Q. R. CO. et al., 226 F. 23

MACK, Circuit Judge (after stating the facts as above). 1. Tiie dismissal as to the railway company was proper, under a plea denying residence of either plaintiff, a citizen of Pennsylvania, or defendant, a citizen of Iowa, in the Northern district of Illinois. 2. Clearly, under the foregoing facts, the deceased was in no sense an employé of the railroad company, but only of the Pullman Company. Robinson v. B. & O. R. R. Co., supra. 3. If the contract of employment and the release had been made in Colorado, they would be a complete defense to a suit for injuries not resulting in death.

Both under the Colorado decisions and federal decisions interpreting the common law, Eindsay was not a passenger on defendant’s car. lie was riding thereon, not by virtue of any contract with defendant, but solely as an employé of the Pullman Company, by virtue of the contract between the two companies.

An agreement that, in consideration of this employment, by which alone his presence on the car would be permissible, the railroad should under no circumstances be liable for injuries or death of a Fulinuui Company porter not an employé of the railroad, has been held to be not against public policy, and to cover injuries caused by tlit- negligence of the railroad’s employes, even though such negligence is not specifically mentioned in the contract. Denver & Rio Grande Railroad Co. v. Whan, 39 Colo. 230, 89 Pac. 39, 11 L. R. A. (N. S.) 432, 12 Ann. Cas. 732; Robinson v. B. & O. R. R. Co., supra.

The last point was expressly decided in Russell v. P., C., C. & St. L. Rv. Co., 157 Ind. 305, 61 N. E. 678, 55 L. R. A. 253, 87 Am. St. Rep. 214. 4. Plaintiff contends, however, that though the law of Colorado, the place where the tort was committed, governs the right of action, the employment contract and release were void in Pennsylvania, where executed, and therefore cannot be availed of as a defense in any jurisdiction. It is unncessary to consider the effect of a statute prohibiting and nullifying such releases. Pennsylvania has no such statute.

Its courts do not declare such a release null and void, even if made in Pennsylvania, but merely hold it contrary to the public policy of that state, and therefore unenforceable as a defense when the tort is committed in Pennsylvania, and that, too, though the release was valid where executed. Hughes v. Pennsylvania Railroad Co., 202 Pa. 222, 51 Atl. 990, 63 L. R. A. 513, 97 Am. St. Rep. 713. On the other hand, if the injury occurred in a state which recognized the release as valid, the Pennsylvania courts enforce it, even though the contract was made in Pennsylvania. Taylor v. Adams Express Co., 52 Pa. Super.

Ct. 449. Moreover, this contract of employment clearly contemplated that the deceased might be sent anywhere. His release inured to the benefit of any railroad for injuries sustained in any state. Its validity as a defense in an action in tort is governed by the law of the place of injury. Smith v. A., T. & S. F. Ry. Co., 194 Fed. 79, 114 C. C. A. 157. And, as Colorado has no statutory provision relating thereto, the federal courts, interpreting the common law, would, in any event, enforce the release as a bar to an action for damages arising from the negligence in Colorado of the railroad’s employes. 5.

Plaintiff contends, further, that under the Colorado statutes an entirely new cause of action arose in her favor, and that therefore Findsay’s release of liability could not affect it. The Colorado courts have so held as to an action brought under

section 1508. Denver & Rio Grande Ry. Co. v. Frederic, 57 Colo. 90, 140 Pac. 463. This ruling, like similar rulings in other states, is based on the holding that

section 1508 is a penal statute; that the amount to be recovered thereunder is not compensation to be measured by plaintiff’s pecuniary loss, but a forfeiture or penalty, within definite maximum and minimum bounds, dependent solely upon the extent of defendant’s guilt; that such penalty might have been given to the state, or to an informer;, and that the mere fact that it is given to the widow of the deceased does not change its character. The declaration in the instant case is clearly based on

section 1509, and not on

section 1508. It specifies pecuniary loss. The ad damnum exceeds the maximum penalty. Both owning and operating companies were made defendants, although the operating company alone is subject to the penalty for negligence of its employés. As numerous cases cited in the Frederic Case show, the general rule that penal statutes will not be enforced in courts of another jurisdiction has been expressly applied to statutes of this kind. The remedy given by

section 1509 for a wrongful act causing death is, however, expressly subject to the limitation that the act must be “such as would (if death had not ensued) have entitled the party injured to maintain an action.” Lindsay’s contract and release were not made after a valid cause of action had arisen. They defined his status in relation to the defendant and prevented a cause of action from arising. As a matter of pleading, they need not be set up by an affirm.ative plea, but, as was held in the Robinson Case, supra, they were admissible in evidence under the general issue.

The distinction between the penalty and the compensation statutes is pointed out in the Frederic Case, supra. While the Supreme Court of Colorado does not seem to have expressly passed upon the point, we are of the opinion that whether

section 1509 be held to create a new cause of action, or merely to abrogate, in favor of widow and children, the common-law rule that death of the party injured terminates the remedy for a tort, no action can be maintained thereunder, in view of the express limitations contained therein, when, as in the instant case, the deceased by his own act had prevented a cause of action from arising in his lifetime. Northern Pacific Railway Co. v. Adams, 192 U. S. 440, 24 Sup. Ct. 408, 48 L. Ed. 513. See 28 Harvard Law Review, 802. Judgment affirmed.