128 N.Y.S. 312 | N.Y. App. Div. | 1911
The action is in negligence. The plaintiff was employed as one of a section gang by the defendant, and while engaged in his duties south of the village of East Aurora the handcar on which he was working was run into by a backing freight train. He and his fellow-workmen saw the train slowly approaching and the foreman, apprehending a collision, told the men to jump from the car platform, which was only two feet above the ground. All did as directed, and the plaintiff fell under the handcar and was run over by it and also by the caboose of the backing train, and his right leg was crushed and thereafter amputated above the knee. The trial judge very fairly submitted to the jury the questions of the negligence of the defendant and plaintiff’s contributory negligence, and they have been determined adversely to the plaintiff, and the verdict is sustained by sufficient evidence.
The trial judge set aside the verdict as matter of law in order that another question in the case might receive judicial construction by the appellate courts. The memorandum filed contained the following : “ It seems to be conceded by counsel on either side that the questions here raised have not been passed upon by any of the Appellate Courts of the State, and that contrary views have been expressed by the courts in other States where practically the same questions were, involved, and that there are at least four other cases having passed the initial court are now awaiting the decision in this one by the Appellate Division. Under these circumstances the rights of the parties to this case would be better served by the
In February, 1886, the defendant, in connection with associated railroad companies, organized a voluntary relief fund society for its employees. Any employee under the age of forty-five years, upon passing a satisfactory physical examination, is permitted to become a member of this organization. An agreement, in writing, is entered into with him whereby he agrees that a stipulated sum is to be deducted monthly from his wages, and is to be his contribution to the fund. The members are divided into classes, and the sum paid by any member determines the class to which lie belongs, and the distribution of moneys is also graded and regulated: A book of rules is given to each member, clearly defining the plan and scope of the organization, including the benefits to be received by him in case either of sickness or personal injuries while in the employ of the defendant. The monthly sum to be paid is stated in the agreement, and the amounts to be received by the member are definitely set forth in the book of regulations given to the member at the time of the execution of the agreement. The plaintiff, in case of permanent injury, in pursuance of his agreement, was entitled to fifty cents a day for the first fifty-two weeks, and thereafter twenty-five cents a day.
Section 45 of the regulations contained this provision: “ If the injury is of a permanent character benefits will cease when the member shall be declared by the Medical Examiner as able to earn a livelihood in an employment suited to his capacity.” Section 5 of the regulations provides as follows: “ The Company will take general charge of the Department; guarantee the fulfillment of the obligations assumed by it in conformity with the regulations from time to time established-; take charge of the funds, and be responsible for their safe keeping; supply the necessary facilities for conducting the business of the Department, and pay all the operating expenses thereof.”
An advisory committee is also provided for, consisting of certain officers of the defendant, and of members of the relief fund chosen by ballot by the contributing employees. This committee is vested with “ general supervision of the operations of the Department, and see that they are conducted in accordance with the regulations.”
As has been seen, the appellant agrees to take charge of the fund and be responsible for its investment and safekeeping, and for its distribution in compliance with the scheme of' the contract. It agrees to provide free of cost whatever surgical attendance may be needed to the injured employee, to pay all the expenses of administering, investing and distributing the fund so that the entire amount which goes into the fund shall be used for the benefit of its members. The defendant’s interest, however, extends beyond these obligations. It agrees to make up any deficits which may occur in the fund in order that each member may receive the sums to which he may be entitled in the carrying out of the provisions for his benefit. The evidence shows that the contributions of the defendant to the fund in 1907 were the sum of more than $217,000, and during the year 1908 about $234,000. The company, however, is not making the contributions solely from a philanthropic standpoint. Undoubtedly the welfare of its employees and the development of the friendly relations between them and the officers and agents of the appellant and the prevention of strikes and labor troubles may have been an inducing motive for its participation in the enterprise.
Each member, upon applying for membership, agrees in the written application as follows ; “ And I agree that the acceptance of benefits from the said Eelief Fund for injury or death shall operate as a release of all claims for damages against said Company arising from such injury or death, which could be made by or through me, and that I or my legal representatives will execute such further instrument as may be necessary formally to evidence such acquittance.” If the employees of the defendant who are injured accept these benefits, thus relieving the defendant from defending actions for personal in juries and from judgments which may be recovered against it therefor, it to that extent has a pecuniary interest in this fund. In construing the application and agreement we must con
An employee of the defendant is not required to join the relief fund. As its name indicates, membership in it is voluntary. The plaintiff was in the employ of the defendant several years before he became a member of the fund in January, 1907. He could have terminated his membership at any time without interfering with or ending his service for the defendant. So acceptance of the benefits in case the member is injured and entitled to benefits is not obligatory upon him. He has the election to accept or refuse them. If received, his cause of action for damages for the injuries sustained is lost. If he declines to receive the sums which the agreement assures to him, his membership in the relief fund is no bar to the maintenance of any action which he may have to recover damages for injuries inflicted upon him.
The plaintiff was injured, as has been stated, June 13,1908. He was taken to a hospital, where he remained several weeks; returned to his home, and on the thirty-first of July of that year accepted from the relief fund department a check for eight dollars and fifty cents, the first payment for benefit for seventeen days “ on account of accident,” as the check or order provided. He received the money and signed the appended voucher. In a similar manner five other payments were made to him, extending down to December 28, 1908, about the time of the commencement of the action, and payments then ceased. The sums pajd amounted to eighty-five dollars.
The plaintiff testified that he did not understand the effect of the agreement, nor did he know of the clause in the application providing that acceptance of benefits from the relief fund for injuries should operate as a release of claims for damages against the defendant. He had a book of regulations in his possession for nearly a year and a half and knew that seventy-five cents a month were taken from his wages by reason of his membership in the organization. He had been an employee of the defendant for several years, during all of which time the organization had been in operation, and it probably was often the subject of conversation with his fellow-workmen.
Again, in response to the written or printed question of the phy
The trial judge submitted this question of fact to the jury very clearly and fairly. He summarized the legal proposition for the benefit of the jury in this language : “ For all the purposes necessary to be considered by you in the discharge of your duties here, it is sufficient to say, and I charge you, that if the plaintiff became a member of this Voluntary Relief Fund .Department, as contended by the defendant, and subsequently received the benefits (which he admits he did receive), in fulfillment of this contract with the defendant, that it bars him from a recovery in this action. If he became a member of this Relief Department, permitted the defendant to deduct seventy-five cents per month from his wages each month and received these benefits with a conscious understanding of his relation to the defendant company, then I charge you that it become a bargain which he was authorized to make, and thereby waive upon his part, any claim for damages for an injury resulting from negligence upon the part of the defendant and he cannot recover.”
The verdict of the jury established this question of fact against the plaintiff, and we, therefore, on this appeal must start with the proposition settled that when the plaintiff became a member of this organization he knew the application contained the release provision quoted and comprehended its import. There is no claim that the plaintiff was induced or urged to accept the check or order from the relief fund department, or that any advantage was taken of him, or that he did not realize the payment was on account of his membership in it and by reason of the injuries he had sustained. There is no suggestion that he was not conscious when he accepted the check or signed the voucher accompanying it.
The chief claim of the plaintiff is that the release clause in the application renders the agreement void as against public policy. The research of the counsel and what investigation I have been able to make have not resulted in discovering any authority in any appellate court in this State on this proposition.
In the present case, at the outset membership in the society was voluntary, although that fact is not significant on this vital proposition. The member knew when he joined the association that if he was injured, whether he accepted the benefits accruing to him by virtue of his membership or resorted to the courts, precisely the same as if he had not entered into the organization, rested entirely with himself. He might prefer to accept the sums inuring to his benefit rather than take the chances of uncertain litigation. He might realize that the injuries were the result of his own carelessness, or that the defendant was free from fault. In that event he had a certainty in accepting the benefits. On the other hand, he
The plaintiff was seriously injured. A jury have by their general verdict, however, held that the defendant is not liable to respond in damages. Whether because he executed the application, comprehending fully its import, or whether the defendant was not responsible for the injuries he sustained, we do not know. We are justified in assuming that all these material questions of fact were decided adversely to the claim of the plaintiff. (Smith v. Weston, 159 N. Y. 194, 198; Wolf v. Goodhue Fire Ins. Co., 43 Barb. 400 ; affd., 41 N. Y. 620; People ex rel. Hanrahan v. Board of Police, 35 Barb. 644; Card v. Duryee, 66 N. Y. 651.)
Serious as were his injuries, therefore, if he had no cause of action on the merits against the defendant, he relinquished nothing in accepting what he was entitled to in pursuance of his membership. The contract with the provision in it may not operate unfairly to the employees considered in their entirety. Of the 5,000 or 6,000 members injured annually by far the larger number were trivial injuries, and yet the members received payments from the relief fund. They received back more than they contributed.
There are many authorities in other States construing provisions similar to the one in controversy, and in several the precise one, and in nearly every instance upholding their validity. I will cite only a few of these. (Twaits v. Penn. R. R. Co., 75 Atl. Rep. 1010,1013; Johnson v. Philadelphia & R. R. R. Co., 163 Penn. St. 127,134; Ringle v. Penna. R. R. Co., 164 id. 529 ; Pittsburg, C., C. & St. L. R. R. Co. v. Moore, 152 Ind. 345, 353 et seq. ; Donald v. Chicago, B. & Q. R. Co., 93 Iowa, 284, 293 et seq. ; Petty v. Brunswick & Western R. Co., 109 Ga., 666, 670 et seq. ; Eckman v. Chicago, B. & Q. R. R. Co., 64 111. 444.) The decisions in the Federal court are to the same effect. (Owens v. Balt. & Ohio R. R. Co., 35 Fed. Rep. 715; Shaver v. Pennsylvania Co., 71 id. 931; Day v. Atlantic Coast Line R. Co., 179 id. 26.)
The Chancery Court of New Jersey in Twaits v. Perm. R. R. Co. (75 Atl. Rep. supra) used this language (at p. 1013) in
In Johnson v. Philadelphia & R. R. R. Co. (163 Penn. St. 127 supra), a leading case, the Supreme Court of Pennsylvania in passing upon a like provision thus expressed itself (at p. 134): “ 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.”
Second. It is urged by the respondent that the provision in the application is within the prohibition of chapter 657 of the Laws of 1906 (adding to Railroad Law [Gen. Laws, chap. 39 ; Laws of 1890, chap. 565], § 42a), known as the Barnes act, and in pursuance of which this action is brought and which is now section 64 of the present Eailroad Law (Cpnsol. Laws, chap. 49; Laws of 1910, chap. 481). By that act persons intrusted with the “ authority of superintendence” by a railroad company are vice-principals of the corporation and not fellow-servants of the injured employee. A.t the close of the section appears this provision: “ And no contract, receipt, rule or regulation, between an employee and a railroad corporation or receiver, shall exempt or limit the liability of such corporation or receiver from the provisions of this section.” There is nothing in the clause in the application made by the plaintiff which exempts or limits the liability of the defendant. He has two remedies available to him. As in any case where a person has an opportunity of choosing one of two or more remedies, the elep
The authorities in other jurisdictions, where statutory prohibitions prevail similar to that contained in the Barnes act, uphold the validity of a contract like the one in suit. (Donald v. C., B. & Q. R. R. Co., 93 Iowa, 284, 294; Hamilton v. S., K., N. & W. R. R. Co. 118 Fed. Rep. 92; Pittsburg, C., C. & St. L. R. R. Co. v. Moore, 152 Ind. 345; Day v. Atlantic Coast Line R. Co., 179 Fed. Rep. 26.)
Third. ¡Nor does the relief fund come within the condemnation of section 201 of the Insurance Law of the State. (Gen. Laws, chap. 38 [Laws of 1892, chap. 690], § 201, as amd. by Laws of 1907, chap. 273; now Consol. Laws, chap. 28 [Laws of 1909, chap. 33], § 201; Hunt v. Northern Central R. Co., 124 App. Div. 43; Johnson v. Philadelphia & R. R. R. Co. 163 Penn. St. 127,133; Donald v. Chicago, B. & Q. R. co., 93 Iowa, 284, 295, supra.)
The case of Chicago, Burlington & Quincy R. R. Co. v. McGuire (219 U. S. 549), recently decided in the United States Supreme Court, is not in conflict with the conclusion here reached. In that case the statute of the State of Iowa made every railroad corporation liable for all damages sustained by any employee “ in consequence of the neglect of the agents, or by any mismanagement of the engineers or other employees thereof, and in consequence of the wilful wrongs * * * of such agents, engineers or other employees.” An amendment to this statute in 1898 provided, among other things, that neither “ any contract of insurance relief ” between the employee and the corporation, nor “ the acceptance of any such relief, insurance, benefit or indemnity by the person injured, his
The order should be reversed.
All concurred.
Order reversed, with costs of this appeal to appellant, and motion for new trial denied.
