Sewell v. Atchison, Topeka & Santa Fe Railway Co. ( 1907 )

The opinion of the court was delivered by

Mason, J.:

Jefferson D. Sewell, a messenger of the Wells-Fargo Express Company, while engaged in that service was killed in a wreck on the road of the Atchison, Topeka & Santa Fe Railway Company. His widow, Emma M. Sewell, brought an action against the railway company, alleging that its negligence caused the death. The case was submitted upon an agreed statement of facts, from which it appeared that the express company and the railway company had entered into a contract by which the former assumed all risk of injury to its employees and agreed to hold the latter harmless from all loss, cost and damage arising therefrom, and that Sewell had executed a contract with the express company which included a provision that neither it nor any railway company on whose line he might travel in the course of his employment should under any circumstances be liable for any injury occurring to him while so traveling. The trial court held that the defendant was not liable and gave judgment accordingly, from which the plaintiff prosecutes error.

Two questions are presented: (1) Were the contracts referred to effective to relieve the railway company from liability to Sewell for any injury he received occasioned by the negligence of its agents while he was engaged in his work upon one of its trains? (2) If so, did this waiver of any claim upon his own behalf take away the right of his heirs to recover in the event of his death as the result of such an injury?

It was of course competent for the messenger, as between himself and the express company, to assume any risks of his employment resulting from the negligence of the railway company. The question involvéd is whether he could contract away his right to compensation for the results of such negligence, as between himself and the railway company, with which he was brought into privity through its contract for indemnity with the express company. It has often been stated as a general principle that no contract will relieve a common carrier from liability for the consequences of the negligence of its agents to one who is a passenger for compensation. (6 Cyc. 578.) There is abundance of authority that an express messenger is a passenger (6 Cyc. 543, note 47), and as he is present upon the train in pursuance of an agreement from which the railway company receives a financial benefit he is essentially a passenger for hire. (Note, 61 Am. St. Rep. 98.) This consideration is sometimes spoken of as controlling upon the question of the power to waive claims for damages caused by negligence; but while language to that effect may be appropriate to some situations, it is ' not so to that here presented. The messenger is a passenger in the sense that he is not a mere licensee, a trespasser, nor an employee of the railroad company, but one who, through his employer, the express company, has bargained for the privilege of riding upon the train. He is not a passenger in the sense that his primary object in so doing was to be conveyed from one point to another. The definitions that have been given of the word “passenger” are nearly as numerous as the different occasions that have arisen to state its meaning. (See 6 Words & Ph. Jud. Def. 5218.) It is not necessary that a definition of universal application should be framed. The important question is whether one in the situation of Sewell could make a .valid contract releasing the railway company from liability for the results of its ordinary negligence. Or, to state it in the form of a definition, whether he was a passenger within the meaning of the rule that a passenger can not make such a contract.

The most complete discussion of the very matter here involved to be found in the books is that supporting the decision in Baltimore & Ohio &c. Railway v. Voigt, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560, where a conclusion is reached in accordance with the judgment of the trial court in this case. If the judgment is to be affirmed it must be upon the theory adopted by the federal supreme court and for the reasons adduced in the opinion written by Mr. Justice Shiras, from which Mr. Justice Harlan alone dissented. In that opinion the question whether the messenger is properly to be described as a passenger is not treated as necessarily decisive. The argument may be thus summarized: Ordinarily persons may make such contracts as they see fit and the courts are required to give them effect. A common carrier, however, in virtue of its character as such, is under partial disability in this regard. The law imposes upon it certain obligations, of which it can devest itself by special contract only when such contract is one which the courts will regard as fair under all the circumstances. Ordinarily it is not fair that a common carrier should be permitted to absolve itself by contract from the consequences of its own negligence in the carriage of either goods or of passengers; and so, ordinarily, such a contract will be held void. But the reason why such a contract is held unconscionable, and therefore unenforceable, is that the common carrier when acting in that capacity does not deal on equal footing with its customer. He has the right to require it to serve him, and to do so upon terms of equality with other customers. He really invokes this right whenever

I he makes a shipment of goods or offers himself as a passenger in the usual course of business, notwithstanding he may be granted some nominal or even substantial concession, such as a reduction from the schedule charge. He is in no position to drive a bargain. He' requires and must have the services of the carrier. He must take them upon such terms as it offers. And if in such circumstances he assents that he will bear his own risk of loss or injury resulting from its negligence the agreement will be regarded as in effect extorted from him and ineffectual to bind him. But in relation to the carriage of express matter railroad companies do not act as in ordinary eases. As to such traffic the services they perform are not done as public carriers but under a private contract. They are not bound to undertake such business at all. They do not hold themselves out to the public as engaged in that business. And while in fact they do generally or universally undertake it, they do so in virtue of special contracts, which are entered into by them with only a few organizations throughout the entire country, and ordinarily with but one of them over the same route. A contract made between a railway company and an express company under such circumstances requires no supervision by the courts, and their interference with it would be unjustifiable. The shipper is as able as the carrier to protect its own interests and to resist the imposition of any inequitable conditions. The agreement therefore must be upheld. The express company, having effected a valid assumption of all risks of injury to its employees, is under no disability to transfer such risk to them as a part of the agreement of employment, for the negligence contracted against is not its own but that of the railway company.

That in- the foregoing synopsis the grounds upon which courts may set aside contracts by which common carriers seek to limit their liability as such are correctly stated appears from the discussion in Railroad Company v. Lockwood, 84 U. S. 357, 21 L. Ed. 627, where it< was held that a drover accompanying stock in shipment might recover for injuries to himself resulting from the railway company’s negligence, notwithstanding his execution of a contract expressly waiving his right to do so in consideration of certain privileges said to have been given him in addition to those .ordinarily granted to shippers. In the opinion it was said:

“The carrier and his customer do not stand on a footing of equality. The latter is only one individual of a million. He can not afford to higgle or stand out and seek redress in. the courts. His business will not admit such a course. He prefers, rather, to accept any bill of lading, or sign any paper the carrier presents; often, indeed, without knowing what the one- or the other contains. In most cases, he has no alternative but to do this, or abandon his business. In the present case, for example, the freight-agent of the company testified that though they made forty or fifty contracts every week like that under consideration, and had carried on the business for years, no other arrangement than this was ever made with any drover. And the reason is obvious enough — if they did not accept this, they must pay tariff rates . . . being a difference of three to one. Of course no drover could afford to pay such tariff rates. This fact is adverted to for the purpose of illustrating how completely in the power of the railroad companies parties are; and how necessary it is to stand firmly by those principles of law by which the public interests are protected.

“If the -customer had any real freedom of choice, if he had a reasonable and practicable alternative, and if the employment of the carrier were not a public one, charging him with the duty of accommodating the public in the line of his employment, then, if the customer chose to assume the risk of negligence, it could with more reason be said to be his private.affair, and no'concern of the public. But the condition of things is entirely different, and especially so under the modified arrangements which the carrying trade has assumed. The business is mostly concentrated in a few powerful corporations, whose position in the body politic enables them to control it. They do, in fact, control it, and impose such conditions upon travel and transportation as they see fit, which the public is compelled to accept.” (Page 379.)

In contrast with the attitude in which these contracting parties stand to each other the relations between the express agent and the railroad company were thus stated in the Voigt case:

“It is evident that, by these agreements, there was created a very different relation between Voigt and the railway company than the usual one between passengers and railroad companies. Here there was no stress brought to bear on Voigt as a passenger desiring transportation from one point to another on the railroad. His occupation of the car, specially adapted to the uses of the express company, was not in pursuance of any contract directly between him and the railroad company, but was an incident of his permanent employment by the express company. He was on the train, not by virtue of any personal contract right, but because of a contract between the companies for the exclusive use of a car. His contract to relieve the companies from any liability to him, or to each other, for injuries he might receive in the course of his employment, was deliberately entered into as a condition of securing his position as a messenger. His position does not resemble the one in consideration in the Lockwood and similar cases, where the dispensation from liability for injuries was made a condition of a transportation which the passenger had a right to demand, and which the railroad companies were under a legal duty to furnish. Doubtless, had Voigt only desired the method of transportation afforded the ordinary passenger, he would have been entitled to the rule established for the benefit of such a passenger. But this he did not desire. He was not asking to be carried from, Cincinnati to St. Louis, but was occupying the express-car as part of his regular employment, and as provided in a contract which, as we have seen, the railroad company was under no local compulsion to enter into.” (Baltimore & Ohio &c. Railway v. Voigt, 176 U. S. 498, 512.)

The vital question is whether in the eye of the law an express company really stands upon any different footing in this respect from any other shipper. That in any particular case it happens to be a powerful corporation can not affect the matter. An individual who had bargained for the right to carry merchandise for his neighbors upon periodical trips to and fro between his home and some commercial center would doubtless be subject to the same rule. Whether a railway company acts as a common carrier in permitting express companies to make use of its facilities for transportation was elaborately considered in the Express Cases, 117 U. S. 1, 6 Sup. Ct. 542, 628, 20 L. Ed. 791, and a negative answer was there given. The conclusion reached by the court, and concurred in by all the justices but three (Justices Miller and Field dissenting and Justice Matthews not sitting), was that a railway company is under no duty to handle the business of any express company, and that by undertaking to do so for one company it does not incur an obligation to offer equal privileges to others. This decision has been regarded as settling the question, and recent adjudica tions are generally if not univei’sally in harmony with it (6 Cyc. 374, par. 5; 12 A. & E. Encycl. of L. 543, note 2.) But the earlier cases showed a tendency to the contrary. (See the second paragraph of the note last cited, and especially New England Express Company v. Maine Central Railroad Company, 52 N. H. 430, 13 Am. Rep. 72, cases which, although affected by local statutes, were avowedly based upon common-law principles.)

However desirable it may be in theory to insist upon a railway company’s offering no facility to one person or corporation that it will not extend upon equal terms to any other, as a practical matter few concerns are engaged in the express business, and the number is not capable of any large increase, for in the nature of things it must be exclusive or substantially so as to each line of railroad. If under the law any applicant has a right to the same opportunity at the hands of a railway company to conduct an express business upon its lines that is granted to any other, it would seem that anything like a general exercise of the right would inevitably result in the. carrier’s being compelled either to abandon the business altogether or to take it absolutely into its own control. We acquiesce in the distinction made between the situation of the individual shipper and that of an express company, between the attitude toward the railroad company of the ordinary passenger and that of an express messenger, and, as a necessary sequence, in the conclusion that the contract in question was valid and effectually waived the right of Sewell to look to the railway company for compensation for any injury he might suffer through the negligence of its agents. This conclusion is in accordance with the weight of authority. (6 Cyc. 579; 2 Hutch. Car., 3d ed., § 1018.) In the last-named work, at the place indicated, it is said:

“A contract between a railroad company and an express company that express messengers shall assume the risk of all accidents or injuries they may sustain in the course of their employment is not void as unreasonable or against public policy. And, if an express messenger actually consents to be bound by the terms of such a contract, there can be no doubt that the contract may be pleaded in bar of any action brought by the express messenger against the railroad company for injuries received in the course of his employment.”

And in volume 4 of the second edition of Elliott on Railroads, section 1645, it is said:

“The adjudged cases hold that express messengers are passengers, and while it may be true that express messengers are in a limited sense passengers, yet we think they can not be regarded as passengers in the broad sense in which persons who pay fare as ordinary travelers journeying from place to place are passengers, for there is a duty to carry such persons, but according to the decisions in the Express Cases, a public carrier is not under a duty to carry for express companies. A railroad company may, as we have elsewhere shown, make special contracts with express companies and may grant to one express company exclusive privileges. As a railroad company is not bound as a public carrier to carry the goods or employees of an express company, it may, upon the principle we have stated, make a valid contract exempting it from liability for injuries to express messengers.”

The- cases are so thoroughly reviewed in the opinion in the Voigt case as to make unnecessary any reference to those already decided when that was written. Additional cases, including Peterson v. C. & N. W. R. Co., 119 Wis. 197, 96 N. W. 532, 100 Am. St. Rep. 879, are cited in Cyc. Ann. to 6 Cyc. 579, note 51. Three cases of a contrary tendency are Shannon v. Ches. & O. R. Co., 104 Va. 645, 52 S. E. 376, Davis v. Chesapeake & O. Ry. Co. (Ky.), 92 S. W. 339, 5 L. R. A., n. s., 458, and T. & P. Ry. Co. v. Fenwick, 34 Tex. Civ. App. 222, 78 S. W. 548. The first, however, was controlled by the fact that the railroad company was not privy to the contract by which the express agent undertook to assume the risk of his employment. In the second, reliance was placed upon a provision in the Kentucky constitution that “no common carrier shall be permitted to contract for relief from its common-law liability,” but the reasoning adopted would have led to the same result irrespective of. this consideration. The third also was influenced by local laws. The Voigt case was decided against the railroad company by the circuit court upon the theory that the decision in Railroad Company v. Lockwood, 84 U. S. 357, 21 L. Ed. 627, established for the federal courts a different rule upon the subject from that which had already been definitely announced by the courts of last resort of Indiana and Massachusetts and has since been followed by those of Illinois and Wisconsin. Mr. Justice Harlan based his dissent from the conclusion of the supreme court “upon the broad ground that the defendant corporation could not, in any form, stipulate for exemption from responsibility for the negligence of its servants or employees in the course of its business whereby injury comes to any person using its cars, with its consent, for purposes of transportation.” (176 U. S. 520.) Consistently with the view so expressed the same justice, together with Mr. Justice McKenna, also dissented in Northern Pacific Railway Co. v. Adams, 192 U. S. 440, 24 Sup. Ct. 408, 48 L. Ed. 513, where it was held that one accepting a free pass might make a valid contract releasing all claims on account of any injuries he might receive while using it on account of the ordinary negligence of the carrier’s employees. This is a question upon which there is some conflict in the decisions, but those holding an agreement so made to be void as against public policy obviously must rest upon some other consideration than a want of equality between the contracting parties.

Having determined, then, that Sewell had effectively waived any claim on his own part, it remains to consider whether as a result of such waiver the claim of his widow was defeated. The relation of the right of a person to recover damages which he sustains from a personal injury negligently inflicted upon him by another to the statutory right of his heirs to maintain an action (or to have an action maintained in their behalf) for their own loss occasioned thereby in case his death results has been frequently considered by the courts. The plaintiff in error regards Railway Co. v. Martin, 59 Kan. 437, 53 Pac. 461, as committing this court to the proposition that the injured person can riot by his contract in any way affect the right of the beneficiary of the statute. There the decedent had contracted that any liability for injuries he might receive through the negligence of another should not exceed $1000. The limitation was held to have no effect upon the amount the heirs might recover. In the opinion it was said:

“It is an action instituted by his widow as administratrix, . . . for the benefit of herself and the children of the deceased. It is to recover their damages resulting from the death of the husband and father. It is to recover for the injury to them rather than to the deceased. Against their rights the deceased had no authority to contract. The cause of action for which the plaintiff sues never accrued to him. It could only accrue as a result of his death. His stipulation, even if binding on himself, is no defense against the statutory right of the plaintiff.” (Page 448.)

The only question there involved, however, was whether a valid limitation upon the amount the injured person could recover for himself imposed a like limitation upon the amount to be recovered in behalf of his heirs. All that was said in, the opinion was said with reference to that question, and no other was determined —certainly not the question here presented. That the case was rightly decided is apparent. Whatever connection there may be between the two actions or the two causes of action, there is none between the amounts that can respectively be sued for in each. He who receives the injury can recover for whatever loss he can prove he has suffered. Whether his own loss be much or little, his heirs, if they can recover at all, can recover to the full extent of their actual damages — within the limits fixed by law — but no inore. Therefore a restriction upon the possible amount of his recovery can have no effect upon the extent of theirs. This is a consideration seemingly overlooked in I. C. R. R. Co. v. Cozby, 69 Ill. App. 256, where it was said: “If the husband can not limit the amount of the recovery, much less can he take away the right of recovery altogether.-”' (Page 262.)

Essentially the two causes of action referred to, although based upon the same wrongful act, are separate' and distinct. Logically there is no reason why two actions should not be instituted and prosecuted to a conclusion — one by the injured person for the loss that results to him from the defendant’s wrong, and the other by those dependent upon him on account of the support of which they are deprived by-his death,'just as each spouse may sue for damages consequent upon a tortious injury done to the wife. A plausible argument might Originally have been made that such was the purpose and effect of the Kansas statute (inasmuch as it provides [Civ. Code, § 420] that causes of action for injuries to the person shall survive), and that where the plaintiff in the first action died it might be revived and prosecuted to judgment for the benefit of his estate generally, while the second action might also be maintained for the benefit of those immediately dependent upon him. Under such a statute or such a construction it might well be asserted that the two causes of action were entirely separate and the waiver or satisfaction of one would not affect the other. But in McCarthy, Adm’r, v. Railroad Co., 18 Kan. 46, 52, 26 Am. Rep. 742, it was decided that the second action was in a sense a substitute for the first — that the first expired beyond revivor whenever the second accrued by the death of the plaintiff in consequence of the tort sued upon. This view is in accordance with the interpretation usually put upon similar statutes — that while the two causes of action are not the same, one depends upon the other, and any consideration that would be a bar to the first in the lifetime of the plaintiff would destroy the second. The section of the statute under consideration reads:

“When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have, maintained an action had he lived against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages can not exceed $10,000, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased.” (Gen. Stat. 1901, § 4871.)

In volume 8 of the American and English Encyclopaedia of Law, at page 870, it is said:

“When the right of action given by the statute is merely such as the deceased would have had if he had survived the injury, a release properly executed by him in his lifetime is a complete defense to an action by his personal representative or others to recover damages for his death. The same rule is true where the statute is not a survival statute, but creates a new and distinct-cause of action in favor of certain beneficiaries, if it provides that the right of action shall exist only in cases where the deceased himself might have maintained the action had he lived.”

And in volume 13 of the Cyclopedia of Law and Procedure, at page 325:

“Upon the question as to whether a release, executed by the deceased for the injury received by him, will continue a bar to an action by his representative or heirs for his death, there is considerable conflict of authority. However, the better rule is that where the party injured has compromised for the injury and accepted satisfaction previous to his death there can be no further right of action, and consequently no suit under the statute, unless it be shown that such compromise or release was procured by fraud or duress.”

The conflict referred to, as shown by the notes to the texts quoted, results chiefly from the decisions in Massachusetts and Kentucky construing the statutes of those states as penal rather than compensatory, and on that account upholding the right of the heirs to maintain their action although the personal claim of the decedent had been satisfied. The cases on the subj ect are collected in Strode v. St. Louis Transit Co., 197 Mo. 616, 95 S. W. 851, where it was said:

“Whether the right of action is a transmitted right or an original right; whether it be created by a survival statute or by a statute creating an independent right, the general consensus of opinion seems to be that the gist and foundation of the right in all cases is the wrongful act, and that for such wrongful act but one recovery should be had, and that if the deceased had received satisfaction in his lifetime, either by settlement and adjustment or by adjudication in the courts, no further right of action existed.” (Page 632.)

(See, also, cases cited in 2 Supp. to A. & E. Encycl. of L. 319, Cyc. Ann. to 13 Cyc. 325, note 43, and a full discussion in Bruns v. Welte, 126 Ill. App. 541.)

It can hardly be said that the adjudications show a substantial difference of opinion upon this phase of the matter. In a note on the subject in 70 Am. St. Rep. 684 the editor says, after reviewing the decisions:

“It is somewhat difficult to combat the logic which leads to such a conclusion. The rule, however, that no action for wrongful death is maintainable, except where •deceased himself could have sued had he survived, applies to, as indeed it grew out of, matters pertaining to the nature and cause of the injury which resulted in death. Was the negligence or wrongful act of defendant the proximate cause of the injury? If not, deceased could not have recovered against him, nor can his successors under the statute. Did deceased’s contributory negligence cause the injury? If so, any action for such injury is similarly barred. If the relation of master and servant subsisted between deceased and defendant, was the injury resultant from the act or neglect of a fellow servant, or was it, for any reason arising out of the rules of master and servant, such an injury as gave rise to no liability on the part of the defendant? If this is answered affirmatively, and in the two cases mentioned before, no cause of action ever arose which was susceptible of release or compromise. Where, however, a cause of action does arise, and the injured party has a period of suffering and expense, there seems no reason that he should not be able, while living, to make an adjustment of his claim with defendant which would bar a recovery by his beneficiaries after his death upon the same claim. But the action given under other than survival statutes is entirely distinct from the action which deceased had at the moment prior to his death. It is an action for damages arising' from the mere fact of death, not damages to the deceased, but damages to his successors under the statute. Therefore, we can not comprehend the reasoning which enables an injured person to release a cause of action which has not accrued, and can not accrue until his death, and which then accrues to third persons. ■ It would be necessary to support such a conclusion that we admit that a person has a right of action for his own death. A greater degree of absurdity would not be attained in the enactment of a statute making suicide punishable as murder in the first degree.”

This argument is ingenious and not lacking in plausibility, but we can not regard it as affording sufficient ground for rejecting the doctrine referred to, which seems to have become thoroughly established as a part of the jurisprudence of statutory actions for death by wrongful act. Nor can we regard it as possible to distinguish between the effect of a settlement made by an injured person after his injury and a contract made by him in advance, founded upon sufficient consideration, and otherwise valid, waiving his right to recover. In principle such a waiver is an acceptance of satisfaction in advance, and in theory at least, whatever the fact may be, one agreeing to such waiver as a part of his contract of employment exacts and receives an addition to his wages sufficient to compensate him for the risk of injury he assumes. The defense based upon such an agreement is essentially that the person injured assumed the risks of his employment — a defense which is recognized as available in actions under the statute referred to. (Rush, Adm’x, v. Mo. Pac. Rly. Co., 36 Kan. 129, 12 Pac. 582.) Such assumption of risk, like contributory negligence, prevents a right of action accruing to him who receives the injury, and is therefore fatal as well to a recovery by his administrator. We are constrained to hold that the contract which would have prevented an action by Sewell in his own behalf also prevents a recovery in behalf of his heirs.

SYLLABUS BY THE COURT. Contracts — Release from Liability for Negligence — Express Messenger. In view of the Kansas statutes making a railroad company liable for all damages done to persons or property in consequence of any neglect on its part (Gen. Stat. 1901, § 5857), and for all damages done to any of its employees in consequence of any negligence of its agents or by any mismanagement of its engineers or other employees (Gen. Stat. 1901, § 5858), although an express company contracts with the railway company by means of whose trains it carries on its business that it assumes all risk of injury to its employees and undertakes to save the railway company harmless from any claims with respect thereto, and contracts with one of its employees that neither it nor the railway company shall be liable to him for any injury occurring to him while traveling on any of such trains in the course of such employment, such employee may still maintain an action against the railway company for injuries received while so traveling in consequence of the negligence of its agents.

The judgment is therefore affirmed.

Greene, Burch, Porter, JJ.', concurring. Johnston, C. J., Smith, Graves, JJ., dissenting.