Atlantic Coast Line Railroad Company, a Corporation, Plaintiff in Error, v. Robert Beazley, Defendant in Error, 54 Fla. 311

Shackleford, C. J. — This is an action of trespass on the case instituted by the defendant in error as plainr tiff againsit the plaintiff in error as defendant in the circuit court for Jefferson county, seeking to recover damages for personal injuries received by plaintiff by reason of the alleged negligence of defendant. Trial was had before a jury, resulting in a verdict for the sum of $20,-000 in favor of plaintiff, upon which judgment was entered, which defendant seeks to have reviewed here by writ of error. The first error assigned is based upon the overruling of the demurrer to the declaration.

The declaration contains four counts, but there is no occasion for setting them out in full.

It will suffice to state that the declaration alleges that on the 14th day of January, 1905, the plaintiff was in the employ of defendant in the capacity of flagman, and on that day while in the due and proper course of his employment as such flagman on a freight train of defendant drawn by a locomotive, which train was in charge of a conductor, an employe of defendant, it became necessary to back such train on to a certain siding in the county of Citrus, and “plaintiff was ordered by the conductor of said train, whose orders he was required and compelled to obey, to station himself on the car or cab at the rear end of the train, and to give signals for the engineer to back said train, as soon as he, the conductor, had turned the switch at the siding, and had notified him to give such signals;” that, in obedience to the signal of the conductor, plaintiff gave the necessary signal to the engineer, but that said switch was not turned so as to enable the backing train to pass safely over the switch on the rails, but, on the contrary, was negligently and carelessly left open, or partly open, by reason whereof the cab or car on which plaintiff was stationed was thrown from the track and the plaintiff was hurled therefrom, and occasioned great bodily injuries, which are described and which resulted in the permanent crippling of plaintiff and caused him to suffer great pain and anguish.

The damages were laid at $50,000. The demurrer contained three grounds, but the first and third grounds are expressly abandoned by defendant in its brief, therefore only the second ground is before us for- consideration. Atlantic Coast Line Railroad Company v. Crosby, 53 Fla. 400, 43 South. Rep. 318 authorities there cited.

This ground is as follows: “The statute makes no distinction between the grades or classes of employes, and an employe is not compelled to obey the order of a superior when obedience thereto would take him into a place of danger or expose him to danger, or be likely to cause injury to him.” In its brief defendant says that this ground of the demurrer “goes to this part of the declaration” which alleges that “plaintiff was ordered by the conductor of said train, whose orders he was required and compelled to obey, to station himself on the car or cab at the rear end of the train,” and the entire argument in support of this assignment is made along this line.

On inspection it is found that the demurrer was interposed to the declaration as a whole “and each of the four counts thereof.” It is settled law in this court that where the demurrer is to* the whole declaration, and it is found to contain one good count, the judgment, on the demurrer must be for the plaintiff. See concurring opinion in Atlantic Coast Line Railroad Company v. Benedict Pineapple Co., 52 Fla. 165, 42, South. Rep. 530, text 534, and authorities there cited. It is also well settled “that a demurrer cannot be addressed to fragmentary parts of a pleading.

Thus a demurrer to a count in a declaration must be to' the whole count if it presents a single cause of action, and'will not be entertained if directed against a part thereof.” 6 Ency. of Pl. & Pr., 300, and authorities there cited. This is in accordance with the principle decided by this court, that a demurrer to a plea goes to’ the whole of it, and should be sustained or overruled as an entirety. Hooker v. Forrester, 53 Fla. 392, 43 South. Rep. 241, and authorities therein cited; Griffing Brothers Co. v. Winfield, 53 Fla. 589, 43 South. Rep. 687.

All four of the counts in the declaration contain the statement in the same language, to which defendant says its demurrer is directed, and the negligence of defendant is charged with only slightly varying language in such counts. We must consider the declaration, then, as an entirety, but confine ourselves to the ground of demurrer urged before us and the argument made in support thereof. The only authority cited by defendant is Duval v. Hunt, 34 Fla. 85, 15 South. Rep. 876. The following language in the opinion rendered therein, on page 107 of 34 Fla., pages 883 of 15 South.

Rep., quoted by this court from Western & Atlantic R. R. Co. v. Adams, 55 Ga. 279, text 281, is relied upon by defendant in support of its contention r “The statute makes no' distinction between the grades or classes of employes of a railroad company, and therefore the courts are not authorized to recognize any such distinction, so as to enable the plaintiff to recover on the principle of contributory negligence, as assumed in thé charge of the court.” We find that this quoted language in the case of Duval v. Hunt, supra was applied to the construction of

Chapter 3744, Laws of 1887, which this court found was adopted by our legislature from the statutes of the state of Georgia. As was said in the opinion in the cited case, 34 Fla. 105, 15 South.

Rep. 882, “Besides our adoption of the terms of the statute itself, according- to the well settled rule, we also' adopt, as forming- an integral part of the same, any known and settled construction that had been placed thereon by the courts of the state from which it has been adopted, in so far as that construction is not inharmonious with the spirit and policy of our own general legislation on the same subject.” In line with the Georgia court, this court in Duval v.

Hunt, supra, held that “under the provision of the statute an employe of a railroad company cannot recover damages from such company for injuries sustained by him on account, of the negligence or carelessness of another employe, unless wholly without fault himself, even though in performing the act that results in the injury he was acting under, the orders of a superior.”

Chapter 3744 Laws of 1887, was expressly repealed by

Chapter 4071, Laws of 1891, which forms sections-3148, 3149 and 3150 of the General Statutes of 1906. However, as was said by this court in Atlantic Coast Line R. R. Co. v. Ryland, 50 Fla. 190, text 198, 40 South. Rep. 24, text 27, in construing

Chapter 4071, Laws of 1891, and noting the changes made therein, “Therefore the adjudications of our own and of the Georgia courts touching other features of the statute that remain unchanged by the said

Chapter 4071, Laws of 1891, will still govern.” It was therein asserted by this court, “that according to- the express terms of the. statute an employe, in order to recover from the master for an injury sustained through the negligence of a fellow servant must himself be entirely free from fault or negligence.” Also see Florida Cent. & P. R. Co. v. Mooney, 40 Fla. 17, 24 South. Rep. 148.

Conceding the correctness of the principles to which we have referred as enunciated in the three cited cases, as well as of the principles enunciated in the Georgia cases, upon which the decisions of this court were based, as applied to the facts and circumstances disclosed in such cases, how does it avail defendant in support of its contention? As was said by this court in Louisville & Nashville R. R. Co. v. Wade, 46 Fla. 197, 35 South. Rep. 863, “Section 3 of

Chapter .4071 of the Acts of 1891 limits the rule that an employe cannot recover for an injury occasioned -by the negligence of a fellow servant to cases where the person injured is guilty of contributory negligence, and the word ‘employe’ as used in that relation means such an employe as would be a fellow servant under the rule above mentioned.” We must determine, then, whether or not the conductor in charge of a train and a flagman are fellow-servants.

Turning now to the decisions of the Georgia supreme court, we find that the following instructive distinction has been made by that court in opinions rendered both prior and subsequent to the adoption of our statute. As was said in Central Railroad v. DeBray, 71 Ga .406, text 418, decided in 1883, “But it is insisted that the plaintiff was not bound to obey the orders of the conductor to g'et off of the train before the same had ceased running.

The conductor acted for the defendant corporation; he had charge and command of the train, and it was not the fault of the plaintiff in obeying this order, and defendant cannot set up- the wrongful act of itself or agents to excuse itself from liability to one who merely obeys an order of this sort.” In Prather v. Richmond & D. R. Co., 80 Ga. 427, text 436, 9 S. E. Rep. 530, it was said, “The conductor was in charge of the train. * * * The servant is bound to obey all reasonable rules and orders given him- by his superior about the business of his employment.” In Mills v. East Tennessee, V. & G. Ry.

Co., 87 Ga. 102, text 105, 13 S. E. Rep. 205, it was said, “In the absence of a rule or regulation prescribed by such superior officer, addressed to and binding alike on subordinates, the doctrine seems to be well settled that a conductor has the charge and control of all persons employed on this train, and that they are bound to obey his orders. In the case of Chicago, M. & St. P. Ry. Co. v. Ross, 112 U. S. 377, text 390, 5 Sup. Ct.

Rep. 184, Justice Field said: 'We know from the manner in which railroads are operated that, subject to the general rules and orders of the directors of the companies, the conductor has entire control and management of the train to which he is assigned. . He directs when it shall. start, at what speed it shall run, at what stations it shall, stop, and for what length of time, and everything essential to its successful movements, and all persons employed on it are subject to his orders. In no proper sense of the term is he a fellow-servant with the fireman, the brakeman, the porters and the engineer.

The latter are fellow-servants in the running of the train under his direction; as to them and the train, he stands in the place of and represents the corporation.’ This doctrine has also been recognized by this court in Prather v. Richmond & D. R. Co., 80 Ga. 427, text 436, 9 S. E. Rep. 530, wherein Justice Simmons remarked: ‘The conductor was in charge of the train. * * * He represented the company.

It was his right and duty to give all necessary orders for the protection of the interests of the company and the safety of its servants.’ Other authorities could be cited, but the above are doubtless sufficient to support a proposition so well-founded in common sense and experience.” Also see to the same effect Krogg v. Atlanta and West Point R. R., 77 Ga. 202, and especially Spencer v. Brooks, 97 Ga. 681, 25 S. E. Rep. 480, citing the Prather and Mills cases supra, and holding that “under such circumstances the conductor is the vice-principal of the railroad company.” Brush Electric Light & Power Co. v.

Wells, 110 Ga. 192 S. E. Rep. 365, and City Council of Augusta v. Owens, 111 Ga. 464, 36 South. E. Rep. 830, contain valuable discussions of the question and citations of authorities along the same line. Thus we see that it has been distinctly and repeatedly recognized by the Supreme Court of Georgia that the conductor of a railroad train is not a fellow servant with brakemen and flagmen, but as to them occupies the position or relation of vice-principal.

The statute having had this known and settled construction put upon it by the Georgia court prior to our adoption thereof, we must be held to have adopted such construction also. However, we fully approve of this distinction and of the language which we have quoted from the Georgia decisions.

Of course a flagman or other employe of a railroad company would not be warranted or justified in obeying an order of the conductor commanding him to go into a place or position of extra hazard, unusual danger or great peril, ■ which would be readily apparent, or to assume a rash or dangerous risk that would be patent to any reasonably cautious or prudent man and repugnant to good judgment and common sense. See Roul v. East Tennessee, V. & G. Ry. Co., 85 Ga. 197, 11 S. E. Rep. 558, and authorities there cited; Whatley v. Macon & Northern Ry. Co., 104 Ga. 764, 30 S. E. Rep. 1003; Wrightsville & T. R. Co. v.

Lattimore, 118 Ga. 581, 45 S. E. Rep. 453. An employe who obeyed such an order as we have indicated above would do so at his own risk and peril.

We turn again to the declaration in the instant' case and find that the first three counts thereof allege that the injury to plaintiff was occasioned by the fact that the conductor of defendant’s train “negligently and carelessly left said switch open,” etc., and that the fourth count alleges “that the defendant, regardless of its duty in this respect, negligently and carelessly left said switch and track in an unsafe and dangerous condition, whereby,” etc., and all four counts allege that plaintiff was without negligence or fault on his part.

It is settled law in this ‘court that in actions where negligence is the basis of recovery, it is not necessary for the declaration to set out the facts constituting the negligence; but an allegation of sufficient acts causing injury, coupled with an averment that they were negligently done, will be sufficient. Jacksonville Electric Co. v. Schmetzer, 53 Fla. 370, 43 South. Rep. 85, and authoriities there cited. It is also elementary that a demurrer admits the truth of all such matters of fact as are sufficiently pleaded. Atlantic Coast Line R. R. Co. v. Crosby, 53, Fla. 400, 43 South.

Rep. 318, and authorities there cited. If the plaintiff within the scope of his employment or in the ordinary discharge of his duties as a flagman of defendant was ordered and required by the conductor to station himself on the top of the car or cab for the purpose of giving signals to the engineer, can it be said that he was negligent in obeying such order and that such negligence on his part occasioned or contributed to the injury?

In order to answer this question in the affirmative, we would have to hold that we judicially know that it is necessarily hazardous or dang-erous for a flagman in the employ of a railroad company to station himself on the top1 of a car or cab for the purpose of giving signals to the engineer, in obedience to the orders of the conductor. It is a matter of common knowledge and every-day observation that employes of railroad companies whether flagmen or brakemen, in the ordinary discharge of their duties, do go on top of the cars of freight trains, station themselves thereon even when the train is moving. See Au v.

New York, L. E. & W. R. Co., 29 Fed. Rep. 72, text 83. If the declaration had failed to show what right plaintiff had to be on top of the car, or for what purpose he stationed himself there, or that he was engaged in the discharge of any duty to defendant at the time he was injured, it might well have been open to attack by proper grounds of demurrer. See Louisville & Nashville R. R. Co. v. Hall, 87 Ala. 708, 6 South. Rep. 277, S. C. 13 Amer. St. Rep. 84, 4 L. R. A. 710. Such defects, however, are not found in the declaration in the instant case. As we said in Jacksonville Electric Co. v.

Sloan, 52 Fla. 257, 42 South. Rep. 516, “There is no absolute rule applicable to all cases by which to determine the question of the liability of the master to the servant, where the servant is injured in the performance of a duty which he is ordered or required by the master or his representative to perform, but the question of liability will depend on the circumstances of each case.” Among many authorities which we have examined, the following, in addition to those already cited, will prove instructive concerning the assignment under consideration: Roul v. East Tennessee, Virginia & Georgia Ry.

Co., 85 Ga. 197, 11 S. E. Rep, 558; Wood v. Georgia R. R. & Banking Co., 84 Ga. 363, 10 S. E. Rep. 967; Central R. R. Co. v. Hubbard, 86 Ga. 623, 12 S. E. Rep. 1020; Simmons v. East Tennessee V. & G. Ry. Co., 92 Ga. 658, 18 S. E. Rep. 999; Middle Georgia & Atlantic Ry. Co. v. Barnett, 104 Ga. 582, 30 S. E. Rep. 771; Augusta Southern R. R. Co. v. McDade, 105 Ga. 134, 31 S. E. Rep. 420; Whatley v. Macon & Northern Ry. Co., 104 Ga. 764, 30 S. E. Rep. 1003; Wrightsville & Tenville R. R. Co. v. Lattimore, 118 Ga. 581, 45 S. E. Rep, 453; Rolseth v. Smith, 38 Minn. 14, 35 N. W. Rep. 565, S. C. 8 Amer. St.

Rep. 637; Wallace v. Central Vermont R. R. Co., 138 N. Y. 302, 33 N. E. Rep. 1069; Hopkins Law of Personal Injuries, §§277, 311 and 312.

Giving the ground of the demurrer urged before us the most favorable construction possible, we could not say, as a matter of law, that the allegations of the declaration show that plaintiff voluntarily exposed himself to a known and obvious danger which was impending at the time he obeyed the order of the conductor to station himself on the car or cab. at the rear end of the train for the purpose of giving signals to the engineer as to the backing of the train: Western & Atlantic R. R. Co. v. Bryant, 123 Ga. 77, 51 S. E. Rep. 20.

In other words, it is not apparent as a matter of law from the allegations of the declaration that plaintiff was guilty of negligence, so as to preclude any recovery for the injuries sustained by him. Wood v. Georgia R. R. & Banking Co., 84 Ga. 363, 10 S. E. Rep. 967; Central R. R. Co. v. Hubbard, 86 Ga. 623, 12 S. E. Rep. 1020; Central R. R. Co. v. DeBray, 71 Ga, 406.

As is well said on page'273 of Buswell’s Personal Injuries (2nd ed.), “An employe, acting in the strict line 'of his duty, may properly do that which, in a stranger, would clearly be negligent, but which may not estop the employe from: recovery against his master.” We are clear that no error was committed in overruling the demurrer to the declaration, therefore the first assignment must fail. ■II.

Upon the overruling of the demurrer to the declaration, defendant filed a plea setting up what is termed in defendant’s brief “the Relief and Hospital Department Contract” of plaintiff with 'defendant, to which plea plaintiff filed ten replications; to all of which defendant demurred and also filed a motion'to strike them out under

section 1043 of the Revised Statutes of 1892, as well as a motion to require plaintiff to be put to his election as to which replication he would • retain.

Subsequently defendant also filed a plea of not guilty. ■ Upon the argument of the demurrer to the plaintiff’s replications to the defendant’s plea, the court made the following order: “This cause coming on to be heard upon the defendant’s demurrer to the plaintiff’s replications to defendant’s plea, and was argued by counsel for the respective parties, and after due consideration thereof, the court being of opinion that the defendant’s ■said plea is’bad and that its insufficiency is reached by said demurrer— It is thereupon considered and ordered by the court thát the défendaht’s demurrer to plaintiff’s replications be and the same is hereby overruled, and that the defendant’s plea to plaintiff’s declaration be and the^same is'hereby'overruled, set aside and vacated, and that the defendant have leave to plead over on or before the first Monday in June, A.

D. 1906.” This ruling- forms the basis for the second assignment. No ruling appears from the transcript to have been made on either motion. By leave of the court, defendant filed the following additional pleas: “The defendant, by John E. Hartridge and D. A.

Finlayson, its attorneys, for a further plea in this behalf to the declaration and each of the four counts thereof, by leave of the court first had and obtained, says: That prior to the time of the accident complained of the defendant and its employees organized a relief department as a department of the defendant company’s service, of the nature of a mutual'benefit association for the relief of the em- ■ ployes of said defendant company injured or becoming sick while in the service of said defendant company, and for other purposes, known as the Relief Department of the Atlantic Coast Line Railroad Company, which was a department of the defendant company, divided into five classes of members and determining the class in which an employee might be a member by his regular or usual monthly pay, as follows : Monthly Pay.

Highest Class.

Less than $35.00..............................1st. $35.00 or more but less than $55.00..............2nd. $55.00 or more but less than $75.00..............3rd. $75.00 or more, but less than $95.00..............4th. . $95.00 or more...............................5th. and with further provisions covering employes paid by the trip, piece or in any other way than by the month; that said association thus formed was a department for the protection and relief solely of employes of said defendant company injured or becoming sick, or dying in the service of said company, and provided for the payment of definite sums of money for temporary and permanent injuries received, and in case of sickness or disability, temporary or permanent, or death from any cause while in the service of the company, and for care and maintenance under certain specified terms and conditions provided in the organization and rules of said Relief Department, and that said membership in said department was voluntary; that the relief fund of said department consists of voluntary contributions from- the members thereof, as follows : First class: seventy-five cents per month; Second class: one dollar and fifty cents per month; Third class: two dollars and twenty-five cents per month; Fourth class: three dollars per month; Fifth class: three dollars and seventy-five pents per month, income derived from investments and from interest paid by the defendant company, and advances made by said defendant company, when necessary to pay benefits, as they become due; that said Atlantic Coast Line Railroad Company, under and by virtue of said rules and regulations governing said Relief Department, assumed general charge of the department and guaranteed the fulfillment of its obligations and has taken charge thereof continuously, and has the custody of the moneys belonging to the relief fund, and has become responsible for the safe keeping of said fund and guaranteed to pay into- the fund interest at the rate of four per cent, per annum on monthly balances in its hands and to advance from its own funds money to pay benefits when the amount contributed by the members, with interest and other income is not sufficient to pay benefits as they become due and to' supply the necessary facilities for conducting the business of the department and to pay all of the operating- expenses thereof, and has in pursuance thereof, complied with, performed and discharged all of said obligations before mentioned upon the part of said defendant company to be complied with, performed and discharged, and has also furnished the necessary hospital buildings and furnituré, bedding, instillment.,, utensils, appliances, surgeons and nurses for the care of employes who become disabled by injuries, sickness or otherwise; that at and prior to the time of said injury, complained of in said first, second third and fourth counts of plaintiff’s declaration, to -wit: on the 18th day of Jufy, 1903, the plaintiff made application for membership in the first class, with no additional death benefit, in the relief fund of the relief department of said defendant railroad company, and in and by said application, in express terms, consented and agreed .0 be bound by the reg-ulations of the said relief department, which regulations he stated in said application he had read himself, or had had same read to him-, and was accepted and became a member thereof, and continued to be and was a member thereof at the time of the injuries sustained by him, to-wit: on the 14th day of January, 1905; that the plaintiff, as a condition of his membership in said relief fund, in his said application promised and agreed to and with the said Atlantic Coast Line Railroad Company that in consideration of the amounts paid and to be paid by said defendant company for the maintenance of said relief department, and of the guarantee of said defendant company of the payment of said benefits, that the acceptance by him of benefits for injuries should operate as a release and discharge and satisfaction of all claims against the said defendant company, and all other companies associated therewith in the administration of their relief departments, for damages arising' from, or growing' but of any injuries that might be received by the said plaintiff, while at the same time the plaintiff was, under the rules and regulations governing- said relief department in cases of injuries to members thereof, at full liberty to elect to accept the benefits of the said relief department in pursuance of the regulations, or to prosecute such claim as he might have at law ag-ainst this defendant company, or any company associated therewith in the administration of their relief departments, but that the acceptance by said plaintiff of the benefits after receiving injuries should operate as a release and satisfaction of all claims against the defendant company or any of the companies associated with it as aforesaid, for damages arising from or growing out of injuries received by the plaintiff; that said contract of membership in no way limited the time in which benefits should be paid thereunder, but specifically provided that payment for each day of disability classed as due to accident for a period not longer than fifty two weeks as follows: To a member M the first class, fifty cents; second class, one dollar; third class, one dollar and fifty cents; fourth class, two uollars; fifth' class, two dollars and fifty cents, and at half these rates thereafter during- the continuance of disability; that the contract of membership in no wise sought to exempt the master from liability to the servant, arising from negligence of the master, or of his or its servants, as such liability is fixed by law, but that under said contract,' rules and regulations it was left wholly optional with the said plaintiff in the event he should receive injuries under the employment of the defendant to elect to receive benefits under his membership in said rebel dapartment or to decline to receive benefits and to proceed thereunder to assert whatever claim he might hav^ by appropriate legal remedies; that the plaintiff elected to proceed under the terms of his contract, and the rules and regulations of said relief department, and accept the same in lieu of any claim he might have by reason of the injuries received by him and the subject matter of this law suit, and after his said election and subsequent to the injuries complained of in the declaration, applied for and then and there subsequently received medical and surgical treatment by reason of his membership in said relief department, on account of the injury complained of in the first, second, third and fourth counts of the declaration, and the defendant company, after the plaintiff received the injuries complained of, paid to the plaintiff benefits by reason of his membership in said relief department, on account of said injuries, and the same were received by the plaintiff as benefits accruing to him by reason of said injuries on account of his membership in said relief department, and more particularly, the defendant alleges, there were paid by the said relief department to the said plaintiff, on account of said injuries, benefits to the amount of $8.50 on or about, to-wit: the 20th day of February, 1905, which was the benefit rate to which the plaintiff was entitled as a member, under the rules and regulations of said relief department, and there was also paid- by said department the sum of $50.00 to certain physicians for care and surgical attendance upon said plaintiff, and also, the sum of $42.00 for board for plaintiff, and also the sum' of $8.00 for dressings of plaintiff’s injuries, making a total of $100.00 expended by said relief department for medical attention, care and board for said plain- ■ tiff, independent of said sum of $8.50 benefits paid directly to- said plaintiff.

And the said relief department did all on its part to be done for and in behalf of said plaintiff by virtue of his membership in said department, whereby the defendant was released from any and all claims for damages against the defendant arising in any way out of the injuries of which plaintiff complains in his declaration.

And for a further plea in this behalf, by leave of the “court first had and obtained, the defendant says that before the commencement of this suit it discharged and satisfied plaintiff’s claim by payment.” To the first of such additional pleas plaintiff interposed a demurrer, setting forth the following matters of law to be argued: ‘T. That the contract and agreement set up is contrary to public policy. 2. That the contract and agreement set up is contrary to the law of the state. 3.

That the contract and agreement set up is a limitation of the liability of the defendant and is null and void, being' contrary to the law of the state. 4. That that contract and agreement set up do not relate to injuries inflicted by or through the negligence of the defendant, or any of its employes. 5. That a contract void in law is not binding and cannot estop a party from pleading its invalidity. 6.

That the plea no where shows that, if the relief association was at any time short of funds to meet its obligations to the plaintiff, he could have maintained an action against the defendant company for the amount that was due him. 7. The plea fails to show that the defendant ever expended any money of its own in the case of the injured and disabled members of the association, or that the monies alleged to have been paid to the plaintiff had not been paid out of the fund contributed by the members. 8.

That the plea fails to set forth what authority the defendant company had under its charter to guarantee the paymeñt of the sums set forth in the alleged contract by the relief association to injured or disabled members. 9. That the plaintiff was incompetent tO' make a valid contract with the defendant limiting its liability, such contract being forbidden by law.” The court sustained the demurrer, which ruling forms the basis for the third assignment. Defendant discusses the second and third assignments together.

Defendant admits that it is the settled law in this court that a demurrer opens all the previous pleadings, and judgment will be given against the party who committed the first error, and concedes that if its first plea constituted no defense to' the action the ruling of the court was right. See Sanford v. Cloud, 17 Fla. 532. In making such ruling it was not necessáry for the court to' pass upon the replications or to determine whether they were good or bad. ■ If such ruling is correct, then the replications for all practical purposes are out of the case and we do not have to consider them.

Before taking up the first plea for investigation, it seems advisable for us to take up the first additional plea and determine whether or not the demurrer was properly sustained to it, for the reason that defendant admits that such plea sets up' the same matters which are contained in its original plea, only more fully and completely. If then the demurrer was properly sustained io this plea, it would seem that no error was committed in holding the original plea bad.

The question of the validity of these “Relief and Hospital Department” contracts, as they have been termed, is a new one in our court, though it is not a novel question, generally speaking, having been passed upon by a number of the courts of this country, as we shall see later on in this opinion. It is true that such a contract was incidentally referred to in Florida Southern R. R. Co. v. Steen, 45 Fla. 313, 34 South. Rep. 571, but it was not necessary for us to pass upon its validity, the question not being raised.

We turn first to the Georgia decisions for the reason that, as we have already seen in considering the first assignment,

Chapter 3744, Laws of 1887, was adopted b)r our legislature from the statutes of the state of Georgia, but was expressly repealed by

Chapter 4071, Laws of 1891. For convenience in comparison we quote in full

Chapter 3744 Laws of 1887 and

Chapter 4071 of 1891. “Chapter 3744 — (No. 64.)

An Act to Apportion the Damages in Actions against Railway Companies by Persons and Employees, and to Provide for such Recovery of Damages against said Railway Companies by its Employees. Be it enacted by the Legislature of the State of Florida:

Section 1. That no person shall recover damages from a railroad company for injury to himself or his property when the same is done by his consent or is caused by his own negligence. If the complainant and the agents of the company are both at fault the former may recover, but the damages shall be diminished by the jury trying the case in proportion to the amount of default attributable to him. Sec. 2.

If the person injured is himself an employee of the company, and the damage was caused by another employee, and without fault or negligence on the part of the person injured, his employment by the company shall be no bar to the recovery, and no contract which restricts such liability shall be legal or binding. Approved June 7, 1887.” “Chapter 4071 — .(No. 62.)

An Act Defining the Liabilities of Railroad Companies in Certain Cases. Be it enacted by the Legislature of the State of Florida:

Section 1. A railroad company shall be liable for any damage done to persons, stock or other property, by the running of the locomotives, or cars, or other machinery of such company, or for damages done by any person in the employment and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company. Sec. 2. No person shall recover damages from a railroad company for injury to himself or his property, where the same is done by his consent, or is caused by his own neglig-ence.

If the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished or increased by the jury in proportion to the amount of default attributable to him, Sec. 3. If any person is injured by a railroad company by the running of the locomotives, or cars, or other machinery of such company, he being at the time of such injury an employee of the company, and the damage was caused by negligence of another employee, and without fault or negligence on the part of the person injured, his employment by the company shall be no bar to a recovery.

No contract which restricts such liability shall be legal or binding. Sec. 4. That

Chapter 3744, Laws of Florida, approved June 7, 1887, be, and the same is hereby repealed. Sec. 5. This act shall take effect and become of force.from; and after its passage. Approved May 4, 1891.” The differences in these two Chapters are obvious and were pointed out and discussed in Florida Cent. & P. Ry. Co. v. Mooney, 40 Fla. 17, 24 South. Rep. 148, and Atlantic Coast Line R. R. Co. 6v. Ryland, 50 Fla. 190, 40 South. Rep. 24, to which we had occasion to refer in considering the first assignment. As was poilited out in Florida Cent. & P. Ry. Co. v. Mooney, supra,

section 1 of

Chapter .4071, Laws of 1891, which formed no part of

Chapter 3744, Laws of 1887, was also adopted by our legislature from the statutes of Georgia, forming

section 3033 of the Georgia Code of 1882, so that both sections of

Chapter 3744 and the first three sections of

Chapter 4071 were adopted from the Georgia statutes. However, our legislature, after copying

section 2 of

Chapter 3744, without change from

section 3036 of the Georgia Code of 1873, made an important addition thereto by inserting at the close the words, “and no contract which restricts such liability shall be legal or binding.” These words form no part of the

section of the Georgia Code from which we adopted such

section 2 ;of

Chapter 3744. Such

section 3036 of the Georgiá Code of 1873 was brought forward unchanged as

section 3036 of such code of 1882 and as

section 2323 of such code of 1895. It will also' be observed that the .quoted words also form a part of

section 3 of

Chapter 4071, Laws of 1891, therefore, so far as the question, which we are now-considering in the instant case is concerned, our two statutes are identical. We turn now to the cases of Petty v. Brunswick & Western Ry. Co., 109 Ga. 666, 35 S. E. Rep. 82, and Carter v. Brunswick & Western Ry. Co., 115 Ga. 853, 42 S. E. Rep. 239, upon which defendant strongly relies in support of its contention. We find upon exan> ination that the statute before the court for construction in the two. cited cases was

section 2613 of the Georgia Code of 1895, which reads as follows: “§26x3. -Contracts exempting master from liability for his negligence, void. All contracts between master and servant, made in consideration of employment, whereby the master is exempted from liability to the servant arising from the negligence of the master or his servants, as such liability is now fixed by law, shall be null and void, as against public policy.” Our legislature has never adopted this section, and the difference between it and the quoted words added by óur legislature at the close of

section 2 of Chaptep 3744, when it was adopted, which words also form a part of

section 3 of

chapter 4071, is readily apparent.

It' has been repeatedly recognized by the supreme court of Georgia, that, in the absence of a statute, an employe of a railroad company may enter into a contract with such company, by which he agrees “to take upon himself all risks connected with or incident to his position on the road, and that he would in no case hold the company liable for any damag-e he might sustain by accidents or collisions on the trains or road, or which may result from the negligence or carelessness,, or misconduct of himself or other employee, or person connected with such road, or in the service of the company,” and “that such a contract, so far as it does not waive any criminal neglect of the company, or the principal officers, is a legal contract and binding upon the employee.” Western & Atlantic R.

R. Co. v. Bishop, 50 Ga. 465; Western R. R Co. v. Strong, 52 Ga. 461; Hendricks v. Western & Atlantic R. R. Co., 52 Ga. 467; Galloway v. Western & Atlantic R. R. Co., 57 Ga. 512; Cook v. Western & Atlantic R. R. Co., 72 Ga. 48; Fulton Bag & Cotton Mills v. Wilson, 89 Ga. 318, 15 S. E. Rep. 322. In line with this principle, this court in Scotch Manufacturing Co. v. Carr, 53 Fla. 480, 43 South.

Rep. 427, speaking- generally of the right and power of parties to make contract, said, “the parties were free to make what contracts they pleased, so long as there was no infraction of law in so doing.” In Fulton Bag & Cotton Mills v. Wilson, 89 Ga. 318, 15 S. E.

Rep. 322, decided in 1892, the Supreme Court of Georgia, reviewed the prior decisions, which we have just cited, and held that “the acquiescence of the legislature in the principle for so long a time is strong, if not decisive, evidence of the public policy of this state touching the question, more especially as legislative attention must have been called to the subject.” In that case it was further said by the court, that “under these circumstances, this court, on a review of the above mentioned cases, declines to overrule them, but on the contrary affirms the same in so far as they are modified by the statute just cited touching railroad employees.” The statute referred to is

an act passed in. 1876 and forming

Section 4586b of the Georgia Code of 1882, which defines and provides punishment for the criminal negligence of the employes of railroad companies. It in no wise is applicable to the instant case and further reference thereto or discussion thereof would prove fruitless. So the matter stood in Georgia until 1895, when the legislature passed the act which forms

section 2613 of the Georgia Code of 1895 and which we have copied in full above. So far as we have been able to ascertain, the first time this statute came before the Georgia supreme court for construction was in the case of Petty v. Brunswick & W. Railway Co., 109 Ga. 666, 35 S. E. Rep. 82, upon which defendant relies and to which we referred above. This decision was approved and followed in Carter v. Brunswick & W. Railway Co., 115 Ga. 853, 42 S. E. Rep. 239, also cited to us by defendant. We have read these cases with dare and interest.

The contract • discussed therein is quite similar to the one involved in the instant case. As was said in the case of Petty v. Brunswick & W. Railway Co., 109 Ga. 666, text 671, 35 S. E. Rep. 82, after quoting the

section of the Georgia Code and reciting the contention of plaintiff that the contract w<as “contrary to public policy, in that it evidenced an attempt to exempt the company from liability for negligence:” “As should be readily apparent, the weakness of this position lies in the fact that it is based upon an entire misconception of the meaning and effect of the contract thus asstailed. It did not, as claimed, in any of its terms or conditions stipulate that the defendant company should be absolved from the legal consequences of its own negligence or that of its servants.

On the contrary, it merely provided an additional remedy to that given by law to an employe who might suffer injury by reason of the negligence, actual or imputable, of his master. The latter remedy was left intact, undisturbed and unimpaired, and the injured employe might, or might not, at his option, take advantage thereof. True, he could not avail himself of both, but was put upon his voluntary election as to which of the two he would pursue.

This feature of the contract is not only technically permissible, but is in perfect harmony and accord with that fundamental rule of law, based upon sound and sensible considerations of public policy, which contemplates that indemnity rather than the mere chance of speculative gain, should be the primordial purpose of every contract designed to afford protection to a party thereto in - the event he sustains loss or injury.

Only in case the injured employe commits an error of judgment in determining whether he will accept benefits, which, though comparatively small, are yet sure and easily within his grasp, or will hazard the less certain result of a' suit for damages, can he possibly fail to realize all the fruits of "every right given him by law.

That it is conceivable he may make such a mistake does not render the contract essentially and inherently vicious, and therefore opposed to public policy.” We are impressed with the clearness and cogency of this reasoning, and that impression is intensified • when we find that the courts of Pennsylvania, Ohio, New Jersey, Iowa, Indiana, Nebraska, Maryland, Illinois and Alabama, as well as several Federal courts have reached a like conclusion. We refer to the following authorities: Johnson v. Philadelphia & R. R. Co., 163 Pa. St. 127, 29 Atl. Rep. 854; Ringle v. Penna. R. Co., 164 Pa. St. 529, 30 Atl. Rep. 492, S.

C. 44 Am. St. Rep. 628; Graft v. Baltimore & O. R. Co., (Pa.) 8 Atl. Rep. 206; Pittsburg, C. C. & St. L. Ry. Co., v. Cox, 55 Ohio St. 497, 45 N. E. Rep, 641, S. C. 35 L. R. A. 507, 7 Am. & Eng. R. R. Cas. (N. S.) 152; State ex rel. Sheets v. Pittsburg, C. C. & St. L. Ry. Co., 68 Ohio St. 9, 67 N. E. Rep. 93, S. C. 64 L. R. A. 405; Fuller v. B. & O. Employes’ Relief Association, 67 Md. 433, 10 Atl. Rep. 237; Spitze v. Baltimore & O. R. Co., 75 Md. 162, 23 Atl. Rep. 307, S. C. 32 Am. St. Rep. 378; Lease v. Penna. Co., 10 Ind. App. 47, 37 N. E. Rep. 423; Pittsburgh, C. C. & St. L. Ry. Co. v. Elwood, 25 Ind.

App. 671, 58 N. E. Rep. 866; Baltimore & Ohio R. Co. v. Ray, 36 Ind. App. 430, 73 N. E. Rep. 942; Pittsburgh, C. C. & St. Ry. Co. v. Moore, 152 Ind. 345, 53 N. E. Rep. 290, S. C. 44 L. R. A. 638; Pittsburgh, C. C. & St. L. Ry. Co. v. Hosea, 152 Ind. 412, 53 N. E. Rep. 419; Donald v. Chicago, B. & Q. Ry. Co., 93 Iowa 284, 61 N. W. Rep. 971, S. C. 33 L. R. A. 492; Maine v. Chicago, B. & Q. R. Co., 109 Iowa 260, 70 N. W. Rep. 630, S. C. 9 Am. & Eng. R. R. Cas. (N. S.) 299; Beck v. Penna. R. Co., 63 N. J. L. 232, 43 Atl. Rep. 908, S. C. 76 Am. St. Rep. 211; Chicago, B. & Q. R. Co., v. Bell, 44 Neb. 44, 62 N. W.

Rep. 314; Chicago, B. & Q. R. Co. v. Curtis, 51 Neb. 442, 71 N. W. Rep. 42, S. C. 66 Am. St. Rep. 456; Clinton v. Chicago, B. & Q. R. Co., 60 Neb. 692, 84 N. W. Rep. 90; Oyster v. Burlington Relief Association, 65 Neb. 789, 91 N. W. Rep. 699, S. C. 59 L. R. A. 291; Eckman v. Chicago, B. &. Q. R. Co., 64 Ill. App. 444, which was affirmed in 169 Ill. 312, 48 N. E. Rep. 496, S. C. 38 L. R. A. 750, 9 Am. & Eng. R. R. Cas. (N. S.) 308; Harrison v. Alabama Midland Ry. Co., 144 Ala. 246, 40 South. Rep. 394; Owens v. Baltimore & O. R. Co., 35 Fed. Rep. 715, S. C. 1 L. R. A. 75; State, to Use of Black v. Baltimore & O. R.

Co., 36 Fed. Rep. 655; Martin v. Baltimore & O. R. Co., 41 Fed. Rep. 125; Otis v. Penna. Co., 71 Fed. Rep. 136; Vickers v. Chicago, B. & Q. R. Co., 71 Fed. Rep. 139; Shaver v. Penna. Co., 71 Fed. Rep. 931; Hamilton v. St. L., K. & N. W. R. Co., 118 Fed. Rep. 92. To these authorities may also' be added the two leading English cases, Griffiths v. Earl of Dudley, 9 Law Rep. Q. B. Div. 357, and Clements v. London & N. W. Ry. Co., 2 Law Rep. 1894, Q. B. Div. 482.

Other authorities which have also dealt with the question, to a greater or less extent, and to which we shall have occasion to refer, are the following: Miller v. Chicago, B. & Q. R. Co., 65 Fed. Rep. 305; Chicago, B. & Q. R. Co. v. Miller, 76 Fed. Rep. 439, 22 C. C. A. 264; Chicago, B. & Q. R. Co., v. McGraw, 22 Colo. 363, 45 Pac. Rep. 383; Chicago, B. & Q. R. Co. v. Wymore, 40 Neb. 645, 58 N. W. Rep. 1120; Pittsburgh, C. C. & St. L. Ry. Co. v. Montgomery, 152 Ind. 1, 49 N. E. Rep. 582, S. C. 71 Am. St. Rep. 301; Johnson v. Charleston & Savannah Ry. Co., 55 S. C. 152, 32 S. E. Rep. 2, 33 S. E. Rep. 174, S.

C. 44 L. R. A. 645; Cannady v. Atlantic Coast Line R. Co., N. C. 55 S. E. Rep. 836; Penna. Co. v. Chapman, 118 Ill. App. 201, affirmed in 220 Ill. 428, 77 N. E. Rep. 248; Mumford v. Chicago, Rock Island & Pac. R. Co., 128 Iowa 685, 104 N. W. Rep. 1135; Brown v. Baltimore & O. R. Co., 6 App. D. C. 237; Galveston, H. & S. A. Ry. Co. v. Hughes, Tex. Civ. App. 91 S. W. Rep. 643; Flower v. London & N. W. Ry. Co., 2 Law Rep., 1894, Q. B. Div. 65.

It will undoubtedly aid us in reaching a correct conclusion upon this important but controverted question if we take up and review these cases and ascertain therefrom the nature of the contracts upon which these different courts have passed, and the character of the pleading and the manner in which they were interposed as a defense. We shall also do well to notice closely the reasoning employed and see its applicability to the instant • case. This will require time and care, but we shall do this as briefly as we can, using no more space than we find -so important a question demands.

We shall begin with the Pennsylvania cases. Pennsylvania. In the aase of Johnson v. Philadelphia & Reading R. Co., supra, which was decided in 1894 and is one of the leading cases upon the subject, we find that no question upon the pleadings seems to have been raised..

It appears from the statement of facts therein that there was a relief association known as the Philadelphia & Reading Relief Association, which “was composed of employes of defendant railroad, and its funds were made up by the joint contributions of-the railroad company and the company’s employes,” and: that the railroad company had paid into the fund of the association a sum amounting to $100,000.

The material portions of the application of plaintiff for membership in such association are set out, in which appears the following language: “In consideration of the contribution, to be made by the Philadelphia & Reading Railroad- Company to the funds of the association, I agree that the acceptance of benefits from said relief fund for injury or death shall operate as a release of all claims for damages against said company, my employer, arising from such injury or death, which could be made by or through me, and that I or my legal representatives will execute, or where necessary, procure to be executed by others, such further instrument as may be necessary formally to evidence such acquittance.” It was further stipulated therein that such application, when approved by the superintendent of the relief association, should constitute a contract between plaintiff ;and the railroad company.

The trial court instructed the jury to- return a verdict for the defendant. We copy the following extract from the opinion: “It is further objected, and this is the only substantial question in the case, that the release was void as against public policy, and a number of cases are cited to show that a common carrier cannot make a valid contract against his -own negligence. It was quite unnecessary to go out of our own state for authorities on that proposition; it is not questioned here any more than elsewhere, but it is wide of the point in this case.

There' is no provision exempting the company from liability for future negligence. The benefits, by the regulations of the relief association, become due to” members whenever disabled by accident in the railroad company’s service, or by sickness or injury other than in the company’s service, without reference .to the question of negligence at all.

As these provisions include benefits in cases of accident pure and simple, of injury by the negligence of fellow workmen, and by the member’s own contributory negligence, it is apparent that they cover a wide field, in which there is. no liability of ,the railroad company at all. Such cases are probably a large majority of those occurring to railroad employes, and the association therefore is of the highest order of beneficial societies. But even in cases of injury through the company’s negligence there is no waiver of any right of action that the person injured may thereafter be entitled to.

It is not the signing of the contract but the acceptance of benefits after the accident that constitutes the release. The injured party therefore is not stipulating for the future, but settling for the past; he is not agreeing to exempt the company from liability for negligence, but accepting compensation for an injury already caused thereby. He may as well accept it in installments as in a single sum, and from an appointed fund to which the company has contributed as from the company’s treasury as a result of litigation.

The substantial feature of the contract which distinguishes it from those held void as against public policy is that the party retains whatever right of action he may have until after the knowledge of all tipie facts, and an opportunity to make his choice between the sure benefits of the association or the chances of litigation. Having accepted the former he cannot justly ask the latter in addition. This feature of the case brings it on all fours with Graft v. R. R. Co., 8 Atl. Rep: 206, where a release under similar circumstances was held to be a conclusive bar.

There is no public policy which the contract can be said to transgress.” This language, either in whole or in part, has been quoted with approval by the Illinois, Indiana and Iowa courts, as well as by some of the Federal courts, and has been approvingly referred to and followed in other courts. In Ringle v. Penna. R. Co., supra, the Pennsylvania-supreme court said: “This case is ruled by Johnson v. R. R. Co., 163 Pa. St., 127, 29 Atlantic Rep. 854.

The essential principle therein established is that a contract between employer 'and employe which preserves to the latter all his rights of action, in case of negligence, until after the facts have occurred and are known to him1, is not against public policy.” After quoting from the Johnson case, the opinion proceeds as follows: “The facts of that case and this are not materially different. In both the agreement is that the acceptance of benefits, of course after the accident, shall operate as a release.

In the present case there is an additional agreement that the plaintiff shall ‘execute such further instrument as niay be necessary formally to evidence such acquittance,’ and it is argued that no such release has been executed by plaintiff. But it is not necessary that it should be. The acceptance of benefits is the substance of the release, and the agreement for a further instrument is by its express terms a mere formality for convenience of evidence.

It is further argued that as the contract is between the relief association • and the plaintiff and no evidence that the railroad company defendant has in fact paid anything into the treasury of the association there is no consideration' to support a release to .the railroad * company. It is not however worth -while to discuss whether the defendant is in position to take advantage of a consideration moving from another party but for its benefit, as the consideration from the defendant itself is abundant.

As a member of the association it has assumed obligations to take charge of the administration, and to pay all the operating expenses, to take care of the funds and to be" responsible for their" safe keeping, to guarantee the obligations of the association, and to make appropriations to supply any deficiencies. These would be ample even "if the amount of the consideration could be inquired into. The release being a complete bar to plaintiff’s right of action it is not necessary to consider the evidence of negligence.” No opinion was written in the case of Graft v. B. & O. R.

Co., supra, and no point is presented on the pleadings, but from the statement of facts we learn that the contract which was made by plaintiff with the Baltimore & Ohio Employes’ Relief Association was was very similar to the contracts we have just discussed in the other two Pennnsylvania cases..

The object of such association is “to extend relief in case of sickness, old age, and death to the employes of the Baltimore & Ohio Railroad Company and their families; to receive deposits on interest from said employes and their wives; and to loan them money at lawful rates of interest, in order to provide them with or to improve their homesteads, and, generally, to promote their welfare.” We are further informed that “the railroad company guarantees all benefits offered by the association, and the performance of all its contracts and obligations.

It contributed $100,000 to the fund of the association,, and was authorized to give, from time to time, such aid, by money or otherwise, on such terms as the president and directors might prescribe. Membership in this association was voluntary on part of the railroad em- . ployes.”. We further learn that the plaintiff had executed a release under seal. We have also seen that the court had said that this case and the Johnson case were on all fours, so far as the question of public policy was concerned. Ohio. We now take up the case of Pittsburg, Cincinnati, Chicago & St. Louis Ry. Co. v.

Cox, supra, decided in 1896. The statement of facts is quite full and the second defense interposed by the defendant railroad company is set out.

We learn from it that the defendant railroad company, together with other railroad companies, formed an association known as “The Voluntary Relief Department of the Pennsylvania Lines West of Pittsburg,” with objects similar to those in the Pennsylvania cases set forth above, of which plaintiff had become a member, upon having signed a like application to those referred to in those cases; “that said relief fund from which benefits are paid is formed by voluntary contributions from employes, and appropriations, when necessary, to make up any deficiency, by the several companies respectively, for the benefit of the employes of each who may be members thereof, and income or profit derived from investments of the moneys of the funds, and such gifts or legacies as may be made for’the use of the fund;” “that the said associated companies in addition to the guaranty as aforesaid, supply all necessary facilities for conducting the business of said relief department, at their own expense, pay all the operating expenses thereof, take charge of the funds thereof, pay interest thereon, and are responsible for their safe keeping;” “that during the last five years immediately preceding the filing of this petition, this defendant has paid into said fund for the benefit of plaintiff and other employes of defendant, the sum of twenty-one thousand t dollars in addition to its share of operating expenses of said department and interest upon the fund.” To this defense a demurrer was interposed, which was overruled by the common pleas, and, upon a trial on the pleadings, issue was found for defendant and a judgment for it rendered.

The circuit court reversed this judgment for error in overruling the demurrer, and the company sought a reversal of the latter judgment. In an exceptionally able opinion, the supreme court of Ohio, speaking through Judge Sbear, reversed the' judgment of the circuit court and affirmed that of the common pleas. We learn from the opinion “that the ruling of the common pleas on the demurrer is assailed on the ground that the contract set up is invalid because: 1. It is prohibited by the act of April 2, 1890, 87 Ohio Laws, 149, ‘for the protection and relief of railroad employes,’ etc.; 2.

Because 'it is against public policy; 3. For want of mutuality; and 4.

For want of consideration moving from the company to Cox for the agreement to release claims for damages.” All of these grounds are discussed in detail and authorities cited and the part of the Ohio statute to which attention is directed is set out as follows: “And no railroad company, insurance society or association shall demand, accept, require or enter into any contract, agreement, stipulation with any person about to enter, or in the employ of any railroad company whereby such person stipulates or agrees to surrender or waive any right to damages against any railroad company, thereafter arising for personal injury or death, or whereby he agrees to surrender or waive in case he asserts the same, any other right whatsoever.” We quote from the opinion as follows: “To what sort of a contract does this language apj ply ?

It is to be presumed that the legislature intended to confine its action in forbidding the making of contracts in themselves lawful, by persons sui juris, to such contracts as are inimical to the state, that is against public policy, for the right to contract is one not given by legislation, but inherent, necessarily involved in the ownership of property and as a primary prerogative of freedom (2 Wharton on Contracts,

section xoói), and we should not construe the words of

an act so as to restrain this right, where the conflict with public policy is not clear, unless the language will bear no other construction. As to the first clause perhaps it is sufficient to say that it clearly appears the contract does not come within the terms of the inhibition, for the reason that the employe does not therein agree to waive right to damages thereafter arising for personal injury or death.

He agrees simply that he will elect after the injury is incurred which -form of recompense he will demand.” The second clause of that portion of the statute quoted is then taken up and discussed, the meaning of the term- “right,” as used therein, dwelt upon and the argument summed up as follows: “And if .the right is not an absolute one in the one case how can it be in the other. Putting the conclusion in a sentence, the second inhibition is not essentially different from the-first; it is but an extension of it.

That applies only to waiver of a right ^to damages arising from personal injuries or death; this extends to all rights whatsoever. But, in any case, the law contemplates a legal right. Taking the statute as a whole, the contract inhibited is a contract which, by its terms, waives the right of action on the part of the employe, while the contract in question does not seek to waive the right of action, but expressly reserves it, and only gives to his election of remedies made after the injury, the effect of a waiver of the other remedy. To deny such a right would be to deny the right to settle controversies.

The law favors the exercise of this right; it does not disapprove it.” Concerning the objection that the contract is against public policy, the following language is used: “Is the contract itself against public policy? To be so, it must, in some manner, contravene public right or the public welfare. It must be shown to have a mischievous tendency ás regards the public. And this should clearly appear. The ground urged is that it tends to make the company less careful in the operation of its road; in other words, it encourages negligence.

And if it be of that character, then it would contravene public policy and be void, in that it would have a tendency to induce the employment of men less prudent and careful, which would tend to endanger the property, and the lives of travelers, as well as of its employes. But this claim arises, we think, from a misconception of the contract; in assuming that, by the contract, the employe releases some future right of action against the company.

On a previous page we have undertaken to show that such is not the case; that there is no waiver of any cause of action which the employe may become entitled to, and that it. is not the signing of the contract, but the acceptance of benefits after the accident, that constitutes the-release. AYhen that occurs he is not stipulating for the future; he is but settling for the past.

He accepts compensation for injury already received. * * ■ * The liberty of contract, being one of those rights secured by our constitution, is not to be restrained upon any insufficient or mere fanciful conceit of what may possibly happen. The citizen who is sui juris has a right to make a contract beneficial to himself when neither immoral, fraudulent nor illegal, and he should not be restrained in the exercise of such right unless the public welfare clearly compels it.

Nor should the emr ployment of corporate capital, where its use is for beneficial purposes, be interfered with unless the public welfare clearly demands such interference.

If the laborer, having in mind the future, and desiring to' provide against a condition of sickness or accident, joins a beneficial association having insurance features, and devotes a portion of his monthly earnings to that purpose; and if on the other hand, the corporation, actuated by a desire to advance its material prosperity by attaching its employes the more firmly to its interests, and by the humane purpose of contributing from its earnings, to their personal welfare, or acting from any other motive, good or bad, becomes a party to such contract, • and renders, in effort and money, valuable assistance in effecting its beneficial purposes, why should the law assume, unreasonably and arbitrarily, to deny the exercise of those rights?

We think it should not, and we fail to perceive how the contract in question contravenes any interest of the public.” “As to whether or not the contract is void for want of mutuality, or for lack of consideration, the following is said: “Nor is the contract void for want of mutuality, nor for lack of consideration.

Moved thereto by the stipulations of the employe members, the company assumes the obligation to take charge in part of the administration of the association, to pay all its operating expenses, to take care of its funds, pay interest thereon, and be responsible for their safe keeping, and to make appropriations to supply any deficiencies. The promises are concurrent and obligatory upon both; both promise and both pay in consideration of promises and payment by the other, and the fact that third persons are interested does not impair the force of the obligation.

If these stipulations do not supply consideration it would be difficult to frame such as would; and there being express assent to the terms of the contract by both parties, the element of mutuality is not wanting. * * * “Our conclusion is that the contract set up is not interdicted by the statute, and that it is neither against public policy, nor void for want of mutuality or consideration.” The entire opinion should be read by those interested.It was followed by the same court in State ex rel. Sheets v. P. C. C. & St. L. Ry. Co., supra. Maryland. The case of Fuller v.

Baltimore & Ohio Employes’ Relief Association, supra, decided in April, 1887, does not materially ai$ us in our investigation, as the facts therein are so variant and the nature of the action different. Suffice it to say that it appears from the opinion that the defendant was a corporation, “no doubt formed both for the benefit of the road and its employes;” “ the road (the B. & O. R.

Co.) contributed in the beginning a large sum of money, and guarantees the obligations of the association, besides giving it other aid in the furnishing medical attendance to the injured, clerical force, office, &c;” “the company makes it compulsory on all its employes of certain classes and physical conditions to become members of the association, and to contribute so much a month out of their wages to create and keep up a fund for the benefit of the injured and sick.” The court of appeals of Maryland held that “A provision in the constitution of a railroad relief association, that in all cases where death is the result of an accident, the association will not pay the amount due to the beneficiary of the member killed, before the person legally entitled to recover damages on account of the accident,shall release -the railroad company from all claim to damages, is not so unreasonable that a court can declare it void.” In Spitze v.

Baltimore & Ohio R. Co., supra, decided by the same court, it appears that the defendant railroad company pleaded as defense- two releases which had been executed by plaintiff under seal, in accordance with the requirements of the relief association, of which plaintiff was a member, and the court said, “we can discover no error in the court’s ruling on the demurrer to that plea, and no point has been made with reference to that ruling in the brief of the appellant’s counsel.” Indiana. In Lease v.

Pennsylvania Co., supra, the same contract was set up as a defense by the defendant which was interposed in the Ohio cases, parts of which we have copied, the defendant being one of the different companies referred to therein as “forming- the Pennsylvania lines West of Pittsburgh.” A demurrer was interposed to that portion of defendant’s answer which set up said contract, which was overruled, and that ruling presented the only question for determination by the appellate court of Indiana. The same grounds were urg-ed against the validity of the contract that were insisted upon in the case of Pittsburg, C. C. & St.

L. Ry. Co. v. Cox, supra, with the exception of the ground that such contract - contravened a statute of Indiana, which point was not raised. The opinion in this case was rendered by the appellate court of Indiana in 1893, while the opinion in Pittsburg C. C. & St. L. Ry. Co. v. Cox, supra, was not rendered by the supreme court of -Ohio, until -1896, but the conclusion reached in the two cases is identical, though the reasoning therein is a little different. This case is one of the cases cited by the Ohio court to support its conclusion, and is one of the leading early cases upon the question.

In the case of Pittsburgh, C. C. & St. L. Ry. Co. v. Montgomery, supra, which was decided in February, 1898, and a rehearing denied in December of that year, the question was presented for the first time to the supreme court of Indiana for determination, and the additional point was made, that such a contract as was pleaded by the railroad company therein contravened the Indiana statute. Other questions were also raised, which, however, are not material to our, present purpose. The contract pleaded as a defense was the same contract discussed in the Ohio cases and in the case of Lease v. Penna. Co., supra.

In an eláboraté opinion, reviewing the authorities, the court declined to either approve or disapprove the principles enunciated by the Pennsylvania supreme court and its own appellate court, but held that such contract was in contravention of the Indiana statute and therefore null and void, and affirmed the judgment of the circuit court. After referring to the authorities holding a contrary view, it said that “the United States Circuit Court for the District of Colorado decided the question the other way in a strong and able opinion in Miller v. Chicago R.

Co., 65 Fed 305.” However, the same court, its personnel having changed, in the case of Pittsburgh, C. C. & St. L. Ry. Co. v. Moore, supra, decided in March, 1899, held that such a contract was not within the inhibition of the Indiana statute and might be pleaded as a defense, using the following language: “We are mindful that this court in the case of Pittsburgh, C. C. & St. L. Ry. Co. v.

Montgomery, ante, held a view of this question at variance with the opinion herein expressed, and which, after a more thorough examination of the decided cases, we find to be in conflict with the very-decided weight of authority. Indeed, the cases seem now to be in substantial accord. The case of Miller v. Chicago, etc., R.

Co., 65 Fed. 305, the only case relied upon -as authority upon this question was subsequently appealed to the United States circuit court of appeals, eighth district, and the doctrine of the lower court inferentially disapproved by the court announcing, in substance, that the authorities were all the other way, though the question here was not decided, as not being necessary to a disposition of the case. Chicago, etc., R. Co., v. Miller, 22 C. C. A. 264. So far as the case of Pittsburgh, etc., R. Co. v.

Montgomery, supra; is in conflict with the opinion herein announced, the same is disapproved.” Of the contract it says: “It is nothing more or less than a contract for a choice between sources of compensation where but a single one existed and it is the final choice —the acceptance of one ag'ainst the other — that gives validity to the transaction.” This principle was followed by the same court in Pittsburgh, C. C. & St. L. Ry. Co. v. Hosea, supra, and by the appellate court of Indiana in Pittsburgh, C. C. & St. L. Ry. Co. v. Elwood, supra., and Baltimore & Ohio R. Co. v. Ray, supra.

While the Montgomery case has been overruled, the reasoning therein has not been met. Iowa. In the case of Donald v. C., B. & Q. Ry. Co., supra, decided in January, 1895, the same question came before the supreme court of Iowa.

From the opinion rendered therein we find as follows: The son of plaintiff, who was killed while engaged as a brakeman on a freight train of defendant, was a member of what is known as the Burlington Voluntary Relief Department, which was not a separate. corporation or organization but was organized in connection with the workings of the defendant company, in the way of benefitting its employes, and which maintained a fund for the relief of members and their relatives or beneficiaries in cases of sickness, accident or death; “the fund is obtained by monthly assessments of its members, and the amount is deducted from the monthly payments.

Such amounts as are not raised from these assessments are made up by the company from its earnings, in the way of interest on the monthly balances of the relief department. The incidental expenses of the department — incident to the conduct of its business — are paid by the railway company.

In case the fund of the relief department is not sufficient, the company pays all benefits due, in full. * * * The assessments have never been sufficient to pay the benefits accruing to the members.” The following are provisions of the regulations by which Maiken (plaintiff’s son) was to be bound in his contract of membership: “Should a member or his legal representative bring suit against the company * * * for damages on account of injury or death of such member, payment 'of benefits from the relief fund on account of the same shall not be made until such suit is discontinued; and if suit shall proceed to ■judgment, or shall be compromised, all claims upon the relief fund for the benefits on account of such injury or death shall be thereby precluded.

I also agree that, in consideration of the amounts paid and to be paid by said company for the maintenance of the relief department, the acceptance of benefits from the said relief fund for injury or death shall operate as release and satisfaction of all claims for damages against said company, arising directly or indirectly from such injury or death, which could be made by him or his legal representatives." No question appears to have arisen on the pleadings, but the trial court directed a verdict for the defendant on the fourth count of the petition, from which action plaintiff appealed.

The Iowa court reviewed the authorities and held that such a contract was not against public policy and did not contravene the Iowa statute. It was said in the opinion, that “by mutual contributions of both the members and the company, a fund is provided, and is available to a member injured by the company, whether in a way to render it liable for damages or not.

The member, in his contract, agrees with the company that in consideration of its contribution to the fund, if he is injured, he will not take the benefit thus provided, and, besides, ask for damages because of the injury, but he has his election which he will take.” In Maine v. C., B. & Q. R. Co., supra, in which the same question was presented, the same court followec its prior decision in Donald v. C. B. & Q. R. Co., supra. Some questions were raised on the pleadings, but it is unnecessary to notice them.

Justice Deemer agreed to the conclusion, but not to the reasoning in the fourth division of the opinion, which, however, is of no moment now. This opinion was rendered in April, 1897, but a rehearing was granted, on which a supplemental opinion was filed in October, 1897. From the latter opinion we learn that the rehearing was granted to enable the court to re-examine its holdings, to the effect that the contract was valid, and to consider in that connection the case of Pittsburgh, C. C. & St. L. Ry. Co. v. Montgomery, supra.

It found, as we have already done, that that case was subsequently overruled by the Indiana supreme court in Pittsburgh, C. C. & St. L. Ry. Co. v. Moore, supra, which ruling was followed in Pittsburgh, C. C. & St. L. Ry. Co. v. Hosea, supra, and announced itself as being- satisfied with the conclusion reached in Donald v. C. B. & Q. R. Co., supra. We think that it will prove serviceable if we copy the Iowa statute referred to and construed in those decisions. It formed section. 1307 of the Iowa Code of 1873, which was brought forward, with only slight verbal changes as

section 2071 of the Iowa Code of 1897, and reads as follows: “Sec. 1307.

Every corporation operating a railway shall be liable for all damages sustained by any person, including employes of such corporation, in consequence of the neglect of agents, or by any mismanagement of the engineers or other employes of the corporation, and in consequence of the wilful wrongs, whether of commission or omission of such agents, engineers, or other employes, when such wrongs are in_any manner connected wth the use and operation of any railway, on or about which they shall be employed, and no contract which restricts such liability shall be legal or binding.” We call attention to the fact that the closing words of the Iowa statute, “and no contract which restricts such liability shall be legal or binding-,” are identical with the closing words of our statute,

Section 3 of

Chapter 4071, Laws of 1891, which words are now before us for construction. So far as we can ascertain, the Iowa supreme court never had occasion to' construe these words of the Iowa statute until 1895, in the case of Donald v. C., B. & Q. R. Co., supra, in which it expressly held that such a cqntract as is therein considered does not contravene their statute and “that such contracts are in no way a restriction on such liability” as is referred to in such statute. We also call attention to the fact that the Iowa statute is copied in full in Pittsburgh, C. C. & St. L. Ry. Co. v.

Montgomery, supra, in which it was said that “the Iowa statute is expressed in fewer words and better language than our own.” As we have already seen, the Iowa statute is couched in ipsissimis verbis of our statute, which we are now considering. However, the question came again before the Iowa court, in a little different way, in 1905, in Mumford v. Chicago, Rock Island & Pacific Ry. Co., supra, in which the opinion was delivered by Justice Deemer, . who, it will be remembered, had not concurred in the reasoning in the fourth division of the opinion in Maine v. C. B. & Q. R.

Co., supra, though he had agreed to the conclusion in that case. We cannot do better than to quote from' the opinion: “We come now to the principal point relied upon by the defendant for a reversal of the judgment.

In plaintiff’s application for employment which he made to the company we find this printed provision: In further consideration of such employment, I agree that if, while in the service of said company, I sustain any personal injury for which I shall or may make claim against the company for damages, I will, within 30 days after receiving such injury, give notice in writing of such claim to the general claim agent of said company, at Chicag-o, for injuries occurring in Illinois or' Iowa, and to the g-eneral attorney at Topeka for injuries occurring elsewhere upon the system, which notice shall state the time, place, manner, and cause of my being injured, and the nature and extent of my injuries, and the claim made therefor, to the end that such clam may be fully, fairly and promptly investigated; and my failure to give written notice of such claim, in the manner and within the time aforesaid, shall be a bar to the institution of any suit on account of such injuries.

For various reasons plaintiff did not comply with these provisions, and defendant pleaded his failure to do so as a complete bar to the action. Plaintiff contended, and now argues, that this agreement is in plain contravention of

section 2071 of the Code, which we shall presently quote, and is therefore void; while defendant says that this

section has no application, and that, if it does that, it is unconstitutional, in that it interferes with the liberty of contract guaranteed by the fundamental law.” Here

section 2071 of the Code of 1897 is set out. As we have already said, this is a copy, with only slight verbal changes, of

section 1307 of the Code of 1873, which we have copied in full above. The opinion continues:

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