188 Ky. 588 | Ky. Ct. App. | 1920
Opinion of the Court by
Reversing.
The appellee, Thomas Carmody, was an employee, of the appellant, ¡Pittsburg, Cincinnati, Chicago and St. Louis Railway Company, for the performance of the duties, of a switchman, in the yards of the appellant company, in Louisville, and upon its moving trains from its yards, in Louisville, to other yards and tracts of appellant near Jeffersonville, Indiana. The appellant was a common carrier. Carmody instituted this action against
“I agree that the acceptance of benefits- from said relief fund for injury or death, shall operate as a release from all claims for damages against .said company (the appellant) 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. ’ ’
The regulations of the voluntary relief department were alleged to contain the above quoted stipulation and in addition thereto, the following:
“Should a member or his legal representative bring suit against either of the companies now associated in
To the above plea in bar of the action, a demurrer was sustained, it being the opinion of the learned trial judge, that the facts stated did not constitute an estoppel to or other valid defense to the action.
A trial of the action resulted in a verdict and judgment for the appellee, and the railway company appeals, and relies solely for a reversal of the judgment, upon its contention that the court was in error, in sustaining the .demurrer to the recited plea in bar, and denying it a defense founded upon the facts therein alleged.
The appellee earnestly insists that the plea is insufficient in law, for three principal reasons:
First: The contract alleged by appellant to have existed between it and the appellee and the voluntary relief department was prohibited by section 196 of the Constitution, and was void as against the public policy of the state.
Second: The contract was not mutual, nor supported by any consideration coming from the appellant, and therefore was not binding.
Third: The regulations of the voluntary relief department, together with the admissions of the answers as amended show that the appellee was entitled to receive benefits from the relief fund of the department, during’ his entire life, and that it ceased to pay the benefits, after having paid $225.00 on April 30, '1906, after which the action was instituted.
(a) Section 196, of the Constitution, renders void any contract which is prohibited by its provisions. The portion of section 196, which is relied upon as prohibitive of the contract alleged, is as follows: “.No common carrier shall be permitted to contract for relief from its common law liability.” The common law liability of a railroad company to one of its employees for an injury sustained by the employee, and resulting from the negligence of the railroad company, was to compensate the employee for the damages sustained by him, by reason,
(b) The contract is not unenforceable for want of mutuality and consideration. While the appellee and other employees óf the various railroads, which jointly administered the affairs of the voluntary relief department, each contributed to the funds of the department, a small sum from his wages, each month, they received the entire benefits of the fund. The amount of the benefits, when paid to an employee was not controlled by the sum paid in by him, nor the state of the treasury of the department. The appellant, together with the other railroads, who were interested in administering the department, paid all the expenses of the administration of the department, supplied at its expense, the necessary facilities for conducting its business, held the funds of the department and were responsible for its safekeeping, and agreed to pay into its treasury the sums necessary to cover any deficits, which might arise therein from the contributions of the employees, at any time, not being sufficient to meet the demands of the treasury, in paying the benefits' to which the members were entitled, on account of disablement from sickness, accident or injury of any kind, under the regulations of
(c) It is insisted for appellee, that the pleadings admit that his injury was such, that by reason of the rules and regulations of the relief department, he was entitled to receive benefits for a greater length of time, than same were paid to him,'and that at the time of the institution of this action, he was still entitled to receive benefits, although the relief department had then ceased to pay them to him. It is urged, that the plea in bar is insufficient, in that it does not aver that the appellee had received all the benefits which under the contract, he was entitled to receive, the allegation upon that subject -being a conclusion and not an averment of facts, which show a complete satisfaction; treating the acceptance of the relief department contract, as an accord of the claim of appellee for damages for his injuries. This contention would be correct, if the contract, which constituted the accord, provided, that the accord should be satisfied in full, before it should be a binding settlement and obligatory upon the appellee.
The trial court was therefore, in error, in sustaining a demurrer to the plea, in bar, and the judgment is therefore reversed, and cause remanded for proceedings, not inconsistent with this opinion.