40 So. 394 | Ala. | 1906
This action is for the recovery of damages for personal injuries. No objection was raised to the sixth count in the complaint. The defendant filed six pleas. The first was the general issue-, and the third was withdrawn, leaving special pleas, 2, 4, 5 and 6.
A motion was made to strike pleas 5 and 6, but the motion, pleas and the rulings thereon cannot be considered, as they are not set out in the bill of exceptions. — Cottingham v. Greely Barnham Grocery Co., 129 Ala. 200, 30 South. 560, 87 Am. St. Rep. 58.
Demurrers were interposed to pleas 3 and 4 as originally filed. Each plea was afterwards amended, and it does not appear that the demurrers were afterwards interposed to the pleas as amended, and they cannot, therefore, be reviewed. — L. & N. R. R. Co. v. Woods, 105 Ala. 561, 17 South. 41. However, the grounds of objection to the original pleas were obviated by the amendments. This leaves for consideration the .demurrers to fhe fifth and sixth pleas.
Adopting what is correctly said of 'these pleas by ap^ pellee’s counsel in their brief, a,-: to the substantial contents of those pleas, it may be said: “The fifth plea sets up the existence of an association composed of the de^ fendant company and other railway companies, under the designation of the Relief & Hospital Department of the Plant System.” Thé plea sets up the purpose of this organization, and the manner in which the contributions made by the companies themselves and their employes are to be conserved and dispensed Eeach employe contributes a stated sum per month. To this, the associated companies add $1,000.00 per month, which amounts to $12,000.00 per year, and in addition guarantees the. pay-
The plea alleges that the plaintiff, Gladden Harrison, after he was injured, and before bringing suit, accepted the benefits to which he was entitled by the terms of this contract, and sets up the fact of such acceptance as a final and conclusive bar to his right afterwards to maintain a suit for damages for his alleged injuries.
The sixth plea, in somewhat different language, sets up the same contract, but adds that it was one ■ of its terms, that its construction and effect should be determined by the laws, of Georgia. It then proceeds to show that there was no statute law of Georgia applying to such contracts, but that a contract substantially the same in its provisions, and made with the same department, was construed, and its effect determined, by the Supreme Court of the State of Georgia, which was the highest court of the Stale, in the case of Petty v. Brunswick, etc., R. R. Co., reported in 109 Ga. 666, 35 S. E. 82. The decision in that case is attached as an exhibit to the plea, and made a part of it.
The plea was demurred to on numerous grounds, the main contention raised by demurrer being that the contract between the plaintiff and the Relief & Hospital Department of the Plant System, and with the Alabama Midland Railway. Company, as a constituent member of
The contract of the plaintiff provides, that the associated companies shall contribute annually the sum of $12,000.00 as a benefit fund of the association, supplemented by monthly contributions from the employes. This wears- the appearance of stability on which an employe may rely for the guaranteed relief, in case he should choose to become a member of the association. By the scheme of relief the employe, or his representative in case of accident or death, is offered the choice to be voluntarily exercised by him, of accepting indemnity provided for him by the company and other employes, or refusing such indemnity, bring suit- to recover damages for his injuries.
We have been pointed to nothing in the charters of either of the companies which would prevent them from establishing such a relief hospital. The primary object of a railroad company is to build, equip and operate its line for the transportation of freight and passengers. In doing so, a vast number of employes are employed, all of whom, while in service on the line, are subject to dangers in multiplied forms, and to physical injuries, for which the companies are subjected to liabilities, and the injured often to irreparable loss. Any device or improvement which prevents, or is intended to prevent, these evils, is incident to the due exercise of their powers, and clearly within the scope of their organization. A ground on which this right is assailed is, that the scheme is an insurance business, but this is a mistake. It does not purport to be an insurance company. The benefits are in the way of relief in cases of sickness, accident or death, and is a. beneficial and not an insurance association, as has been expressly held. — Donald v. C. B. Ry,
The validity of the establishment of such relief associations by railroad companies, have been the subject of frequent adjudications, in many of the states of the Union. The decision in the case referred to in the sixth plea (Petty v. Brunswick, etc. Ry. Co., 109 Ga. 666, 35 S. E. 82), is a full, clear and able decision of all the main questions involved in this case, and which construes the validity of the same contract we- have before us. The contract as the court says, “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 all employes 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, taire 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 that he may make such mistake, does not render the contract essentially or inherently vicious, and, therefore, opposed to public policy.. A much more
The demurrers to the pleas were properly overruled.
It is insisted, however, that the existence of the employer’s liability act in this state, which does not exist in Georgia, makes this case a different one from that presented in the other states. We are unable to understand how the contract in question contravenes the employer’s liability act, but on reasoning and principle it seems that that act can have no effect on the general principle. — P. C. C. & St. L. Ry. Co. v. Cox, 55 Ohio St. 497, 45 N. E. 641.
The other questions íd the case arise mainly on sustaining demurrers to plaintiff’s replications to defendant’s pleas.
The fourth plea, as amended, sets up, in substance, that after said accident, and before the commencement of this suit, the plaintiff agreed Avith defendant, that if defendant would employ plaintiff and pay him at the rate of $50.00 per month he Avould accept the same with the sum of $33.33 paid plaintiff by defendant, to wit: on the 1st day of May, 1900, in settlement of the claim sued upon, and avers, that it did so employ plaintiff and did pay him for his services at the rate of $50.00 per month, for'and including the month of April, 1900, and including four days in March, 1901, when the plaintiff voluntarily left defendant’s services and afterwards brought this suit, on the 16th day of March, 1901.
The plaintiff demurred to the pleas, which being over1 ruled, he replied in substance that said release Avas secured by the fraud of defendant and its agents. The defendant demurred to the replications on many grounds, among them being the one, that “it is not denied in said replication but that plaintiff knew, some time after he signed said release, AAdiat its provisions were, and there is no averment that he ever returned or offered to return the said sum alleged to- have been paid him.” “It is alleged in said plea and not denied in said replication that plaintiff was paid by defendant said sum of $33.33, and it is not alleged in said replication that plaintiff has ever returned or offered to return said money,” nor did lie offer to rescind said contract, though he knew what the proAdsions of said release were.
The demurrers to the replication were sustained.
We find no error in the ruling sustaining the demurrers to the replications.
Affirmed.