100 Kan. 309 | Kan. | 1917
The opinion of the court was delivered by
G. B. McAdow was employed as a motorman, operating one of defendant’s cars. On December 18, 1911, he was permanently injured in a collision between two cars resulting from the negligence of other employees of defendant. In an action brought by. him in Jackson county, Missouri, under the act of congress known as the federal employers’ liability law, he recovered a judgment against the defendant for $7500, which was paid and for which he gave his receipt “as full payment for all damages and injuries” sustained by reason of the accident.
In July, 1913, he brought this action in the district court of Wyandotte county, alleging that when he entered defendant’s employ the superintendent of defendant, J. W. Richardson, orally agreed that defendant was to pay him the usual and ordinary wages of motormen in its employ, less fifty cents a month, and “one-half of such usual ordinary wages during such time, not to exceed fifty-two- weeks at one period, as the
The defendant’s answer, besides a general denial, set up the judgment'in the Missouri action and alleged that the matters in controversy here should have been litigated there. It expressly denied that its superintendent was authorized to make the oral contract relied upon by plaintiff. As a further defense it alleged that plaintiff is not entitled to maintain this action because of the ■ provisions of the federal employers’ liability law upon which the action in Missouri was based. Section 5 of the amendment of April 22, 1908, to the federal act provides:
“That in any action brought against any such common carrier under or by virtue of any of the provisions of this act, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured em; ployee or the person entitled thereto on account of the injury or death for which said action was brought.” (Part 1, 35 U. S. Stat. at Large, ch. 149, § 5, p. 66; 8 U. S. Comp. Stat. 1916, § 8661.)
The answer alleged that in the Missouri action no sum of money which defendant paid to any insurance, relief benefit, or indemnity was set off or deducted from the amount of the judgment for $7500; that defendant had no knowledge or notice that plaintiff claimed or would claim defendant owed him any sum for insurance benefit or indemnity of any kind until after it had paid the judgment rendered against it in Missouri under the federal statute; that under the provisions of section 5 of the federal statute it was entitled to set off in that action all sums, if any, due plaintiff from defendant for insurance, relief benefit, or indemnity to which plaintiff was entitled on account of his injuries, and the same not having been deducted therefrom the plaintiff is not entitled to recover in the present action. The reply was a general denial.
’ At the first trial of the case the court directed a verdict for the defendant. That ruling was reversed and the cause remanded for a new trial. (McAdow v. Railway Co., 96 Kan. 423, 151 Pac. 1113.)
“If . . . you find from the evidence that from the character of the duties that were entrusted to said Richardson as superintendent of the defendant a reasonably prudent person, having knowledge of the nature and usages of the business'in which the defendant was engaged, would have been justified in supposing that said Richardson, as superintendent, was authorized to make the contract with the plaintiff, which the plaintiff alleges was made, then you should find that such contract if made as alleged by plaintiff, was made with the authority of the defendant.”
It is claimed this was error because no evidence of any character tending to show any usages or customs of the business of defendant would have tended in the slightest degree to justify the plaintiff in supposing that Richardson was author ized to make the contract. There was evidence that Richardson was superintendent in charge at Leavenworth; that he employed and discharged all motormen, and that his duties were to operate the road. He testified that he posted, over his own signature, general orders governing the men, and that from 1905 he had been taking fifty cents out of the men’s checks each month for one-half pay in case of injury, and that this practice continued “as long as we carried that insurance.” It is the/contention of the defendant, or it was claimed by Richardson, that the company carried an insurance policy for the benefit of the employees, and that the fifty cents taken each month from their wages went to pay the premium. The policy was not introduced in evidence, a fact mentioned in the former opinion. We think there was sufficient evidence of the usage of the business of defendant in relation to its employees to justify the instruction.
“That in apy action brought against any such common carrier under or by virtue of any of the provisions of this act, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action was brought.” (Part 1, 35 U. S. Stat. at Large, ch. 149, § 5, p. 66; 8 U. S. Comp. Stat. 1916, § 8661.)
In view of “the old law, the mischief and the remedy,” it is claimed that while it was the intention of congress to prevent the making of such contracts, or rather to prevent their interposition as a defense to an action under the employers’ liability law, it was also the purpose to permit the amount of any damages recovered in such an action to be reduced to the extent of any sum paid or contributed by the railroad company for insurance, relief benefit, or indemnity. The action in Missouri was based upon the acts of congress referred to. The defendant had no knowledge or notice, it is said, of the intention .of plaintiff to look to it for payment of this indemnity or insurance in time to plead the amount as a set-off in the former action; and, since it could not have been interposed as a defense, but only as a set-off in that action, it is
■In Atlantic Coast Line R. Co. v. Dunning, 166 Fed. 850, it was held that if an employee takes the benefit of a relief department he thereby releases the railroad company from all liability for his personal injuries occasioned by the company’s negligence. The case, however, was decided upon facts wholly dissimilar to those in the case at bar. By the terms of his contract Dunning agreed to release the railroad company from all liability for injuries sustained in the service. We have no way of determining that the contract sued on here contained any provision for releasing the defendant from liability for such loss of time. We know nothing concerning the provisions of the oral contract save as testified to by the plaintiff. The defendant claims that all it ever agreed to do, and all that Richardson was authorized to do or did, was to arrange to take out for the benefit of plaintiff and his fellow employees a policy of insurance covering any loss of time occasioned by injuries in the service and limited to the fifty-two weeks following the injury: But, as before observed, the defendant did not introduce the policy in evidence, and if it had done so the policy would not have disproved absolutely the plaintiff’s claim of what the terms of his oral contract were. We can not assume that the arrangement between Richardson and the plaintiff bound the plaintiff to release defendant from all liability for injuries caused by defendant’s negligence. So, in the state of the record, we are unable to declare that section 5 of the amendment to the acts of congress, upon which defendant bases this contention, has any application to the facts of this case, or could have been used as a ground for claiming the set-off in the Missouri action, even though defendant had been aware of plaintiff’s intention to assert the claim sued on here.
“It is true there was no such provision in said contract; but such a provision would have been illegal and void, after the passage of said Federal Act of 1908, so that if the contract had contained such a provision, it would have been a provision which the courts would ignore, consequently it is entirely immaterial whether such contracts for insurance, etc., contain such provisions. Such a provision in contracts for insurance, etc., can not be considered, therefore it is not material to the question of a set-off whether such a provision is or is not contained in contracts for insurance.”
It is true, the fact that a railroad company may not have intended to evade the federal statute does not affect the validity of the contract. This is the effect of the decisions declaring such contracts releasing railroads from liability void whether made before or after the federal statute was enacted. If the contract operates so as to defeat the statutory liability, it is void regardless of the intent of the parties. But it does not follow, we think, that the company is entitled to a set-off in cases where the contract contains no provision for releasing the company from liability.' Nor do we think that this construction of the federal statute has the effect of offering to the company a reward or inducement for attempting to avoid its statutory liability, and denying the same reward to another company for not attempting to avoid its liability under the statute. The statute declares that all contracts for the payment of insurance, relief benefits or indemnity where the purpose is “to enable any common carrier to exempt itself from liability created by this act, shall to that extent be void,” coupled with the provision allowing a set-off for any sum paid or contributed by the carrier on account of the injury for which the action is brought. In Phila., Balt. & Wash. R. R. v. Schubert, 224 U. S. 603, it was decided that it made no difference whether the contract for the insurance was made with the actual intent of the parties to circumvent the statute, if the effect of the contract would operate so as to defeat the lia
Besides, the contract in this case was one of insurance pure and simple, by which the company in consideration of the payment by plaintiff of a premium each month guaranteed to pay plaintiff for loss of time for a certain period upon certain conditions. It did not provide that plaintiff should accept his insurance in case of injury in lieu of his right to hold defendant for liability for the same injuries on the ground of defendant’s negligence; and as said in the former opinion;
“The cause of action on the contract and that on the tort are entirely different and are independent of each other. The one is founded upon an agreement to pay a fixed amount (or an amount to be arrived at by a fixed standard) if disability is occasioned by an injury; .the other is founded upon the obligation of a wrongdoer to make amends for the result of his misconduct. The circumstance that the same corporation happens to be charged both upon the contract and upon the tort does not affect the essential character of its liability in either aspect, or take the case out of the operation of the general rule.” (McAdow v. Railway Co., 96 Kan. 423, 426, 161 Pac. 1113.)
For these reasons we conclude that defendant can not urge the set-off, and that there was no error in refusing the instructions asked upon that branch of the case.
The judgment is affirmed.