#### N. F. BARDEN v. ATLANTIC COAST LINE RAILWAY COMPANY.

(Filed 13 April, 1910.)

1. Railroads — Relief Department — Release of Damages — Void Stipulation — Waiver.

An unincorporated relief department of a railroad company for insuring the lives of the employees and indemnifying them against accident, providing hospitals for them under certain conditions while sick, which is contributed to by the employees and the company in a certain manner and is practically under the control and management of the company, is but a bureau or agency of the company; and a stipulation in the contract with its employee that in the case of accident he must accept the benefit of the contract and release the company from liability, is in effect a contract to relieve the latter of the result of its own negligence, is contrary to public policy and void, and is prohibited by the provisions of Revisal, sec. 2646, as' a waiver of the benefits of that section.

2. Same — Demurrer.

Upon demurrer to the complaint in this action for damages alleged under the contract of insurance or indemnity of plaintiff as an employee of defendant, and arising under its employee’s relief bureau, wherein the-complaint sets out with particularity the nature and scope of the bureau, it is necessary to pass upon the validity of stipulations therein appearing to release the defendant from liability from its own negligence, in order to ascertain whether a cause of action is stated.

3. Railroads — Relief Department — Hospitals—Physicians in Charge — Selection—Negligence—Pleadings—Demurrer.

When by eliminating a stipulation in the provisions of a contract. made with a relief department of a railroad company, which is void as releasing the defendant from the result of its own negligence to its own employees, the remainder of the contract with the employee is for beneficent purposes, in an action to recover of the company for injuries alleged by the plaintiff, an employee, to have been received while at a hospital undergoing treatment, in accordance with his contract with the company, by reason of the negligence or malpractice of the surgeon or physician selected and put in charge by the defendant company, a demurrer to a complaint on the ground that it failed to allege that defendant was negligent in their selection, or that it retained them after it knew, or had good reason to believe they were incompetent, is good, and should be sustained.

Browet and Walker, JJ., concur in result.

Appeal from Lyon, J., at July Term, 1909, of Columbus.

Civil action beard on demurrer to tbe complaint.

Tbe plaintiff complains that while be was an employee of tbe defendant be was taken sick and was received into tbe hospital of tbe Relief Department of tbe defendant at Rocky Mount, to be there operated upon and attended to. That tbe operation *319was performed, and through the neglect' and inattention and carelessness of the surgeon, nurses and attendants, he was permanently injured, and demanded damage for his suffering and injury. The plaintiff alleges, further, that he was entitled to admission into the hospital because he wais a member of the Re^ lief Department, under a certificate' issued to him, as follows:

ATLANTIC COAST LINE RAILROAD COMPANY.

RELIEF DEPARTMENT.

Certificate of Membership in ti-ie Relief Fund,

No. 5282.

Office of the Superintendent. ■

Wilmington, N. C., 19 September, 1902.

This Certifies, That N. F. Barden, employed by the Atlantic Coast Line Railroad Company, is a member of the Relief Fund of the Relief Department of the Atlantic Coast Line Railroad Company, and is entitled to the benefits provided by the regulations of the Relief Department for a member of the. Class, with.additional Death Benefit of the First Class.

Superintendent of the Relief Department.

It was alleged that plaintiff was operated on in May, 1906; that he had paid since his membership, seventy-five cents per month; that this amount was retained out of his wages by the defendant. The rules and regulations of the Relief Department are attached to the complaint. The following is a summary of the principal rules and regulations, which are as follows :

It is a department of the defendant company’s service. (Rule 1.) It is in charge of a superintendent ■ and a chief surgeon, whose directions in carrying out these regulations are to be complied with, subject to the control of the defendant company’s president. (Rule 1.) The said president appoints the superintendent, assistant superintendent and the chief surgeon. (Rule 11.) It has an advisory committee (Rule 5), of which the defendant company’s general manager is ex officio a member, and the chairman, with twelve other members, of whom six are selected by the defendant company’s board of directors and six by the contributing employees, insuring the control of this advisory committee to the defendant company by a “safe majority.” The functions of this committee, controlled by the defendant company, is to “have general supervision of the opera*320tion of tbe departments, and see that they are conducted in accordance with the regulations.” (Rule 8.) This advisory committee may propose amendments to the regulations, but no amendment becomes operative until adopted by a majority of the whole committee and it is approved by the board of directors of the defendant company. (Rule 16.)

The superintendent, who is appointed by the defendant company’s president, shall have charge of the business pertaining to the department, employing subordinates, certifying pay-rolls or bills, signing orders for payment of benefits, etc., and exercising such other authority as may be conferred upon him by the president of the defendant company. (Rule 9.) Its members are limited to employees of the defendant company. (Rule 17.) Its funds are derived from their contributions. (Rule 3.) If there should be a deficit in these contributions, then, only, the company advances the money for its operations, charging 4 per cent interest, and reimbursing itself out of the funds contributed by the employees. (Rule 14.)' It pays 4 per cent on the monthly balances which may be in its hands derived from this fund, it is true, but the company is the trustee, and it administers the trust' funds. (Rules 4 and 13.)

If a member of this relief department is furloughed, suspended or otherwise temporarily relieved from defendant’s service for.a specified time, he may retain his membership, during such absence, by paying his contributions in advance; but if at the time specified by his division officer he does not return to his duty in the service of the company, his membership in the relief fund shall thereupon terminate. (Rule 29.) When a member resigns from defendant company’s service, or leaves’ it without notice, is relieved or discharged therefrom, his membership in the relief fund terminates with his employment, and he shall not be entitled to any benefits for time thereafter, except he continue his membership only in respect of the minimum death benefit, if applied for within five days. (Rule 30.) If a member absents himself from the duty of the defendant company for six days, without permission previously obtained, or without satisfactory reasons to his employing officer, he is deemed to have left the defendant’s service without notice, and his membership in the relief fund terminates. (Rule 31.) If a member reported by a medical examiner as able to work, fails to report for work at the time set, he must obtain a written furlough from his employing officer; otherwise, his relief fund membership ceases". (Rule 32.)

The employee must make written application for membership in the relief fund: (Rule 34.) In this application, set out in *321Rule 34, be is to state be bas read or bad read tbe regulations of tbe department, accepts • them, together with subsequent changes or amendments, and accepts any agreement “now or hereafter made by tbe said company with any corporation or corporations now or hereafter associated with it in tbe administration of their relief departments.” He agrees that tbe company may retain tbe stipulated contributions from bis wages to be applied to tbe relief fund, and bis agreement to do so shall constitute an assignment in advance for such portions of bis wages to tbe said company in trust. He also agrees that if transferred to tbe service of any other company associated with tbe said company in tbe joint operation of their relief departments, that it shall operate to transfer bis membership in tbe relief department of such other company. (Rule 34.)

It is further provided that “contributions for any month will be due on tbe first of that month, and ordinarily be deducted from tbe member’s wages on tbe pay-roll of tbe preceding month”; but, when a member bas no wages on tbe pay-roll, any contribution due from him must be paid in cash in advance, otherwise be will be in arrears. (Rule 40.) Tbe benefits from this relief fund “shall not be due on account of disability beginning, or death occurring while a member is in arrears, and when in arrears for two months bis membership shall thereupon cease.” (Rule 41.)

It is provided by Rule 49 bow much shall be paid in tbe nature of benefits: to a member of tbe first class, 50 cents per week; second class, $1; third class, $1.50; fourth class, $2; fifth class, $2.50, and at half these rates during tbe continuance of disability; but these sums are not paid for a longer period than fifty-two weeks. -It is also provided by this rule (49) that provisions shall be made by the- department, in addition to tbe benefits allowed, “for necessary surgical attendance, of, when such provision is not made, payment in behalf of tbe member of such bills for surgical attendance as are authorized and approved by tbe chief surgeon.” There is likewise a provision that, in case of sickness, be shall have tbe same benefits. (Rule 49.) It is also provided by this rule (49) that “disabled members must take proper care of themselves and have suitable treatment; benefits will be discontinued if members refuse or neglect to comply with tbe recommendations of tbe medical officers of tbe Relief Department as to proper care and treatment.”

Certain death benefits are provided by Rule 49. All of these “benefits are to be paid in conformity with tbe financial methods *322of tbe company, and on orders drawn by tbe superintendent, upon bis receiving satisfactory certificates respecting tbe claims and sucb releases as may be required by bim.”

“Wben a member resigns from1 tbe service, or leaves tbe service without notice, or is relieved or discharged therefrom, bis membership in tbe relief fund shall terminate with bis employment, and be shall not be entitled to any benefits for time thereafter.”

In tbe Revised Regulations (Exhibit B, page 30), Rule 47 provides: “Payment for each day, except for tbe first six days of disability classed as due to sickness, for a period not longer than fifty-two weeks, at tbe same rates as for accident benefits; and provision by tbe department for free medical treatment of tbe member, in one of tbe hospitals under its control, in cases of disability, classed as due to sickness which, in tbe opinion of tbe medical examiners of tbe department, may require sucb treatment, and wben approved by tbe superintendent or chief surgeon.”

Extract from Regulation No. 64:

“Tbe acceptance by tbe member of benefits for injury shall operate as a release and satisfaction of all claims against tbe company and all other companies associated therewith as aforesaid, for damages arising from or growing out of sucb injury'; and further, in tbe event of tbe death of a member, no part of tbe death benefit shall be due or payable, unless and until good and sufficient releases shall be delivered to tbe superintendent, of all claims ■ against tbe Relief Department as well as against tbe company, and all other companies associated therewith as aforesaid, said releases having been duly executed by all who might legally assert sucb claim; and further, if any suit shall be brought against tbe company, or any other company associated therewith as aforesaid, for damages arising from or growing out of injury or death occurring to a member, tbe benefits otherwise payable and all obligations of tbe Relief Department and of tbe company created by tbe membership of sucb member in tbe relief fund, shall thereupon be forfeited, without any declaration or other act by tbe Relief Department or tbe company; but tbe superintendent may, in bis discretion, waive such forfeiture upon condition that all pending suits shall first be dismissed.

“If a claim for damages on account of injuries shall- be settled by tbe company without suit, sucb settlement shall release tbe Relief Department and tbe company from all claims for benefits on account of sucb injuries.”

*323Extract from Regulation No. 65 :

“All claims of members, or of tbeir beneficiaries or other representatives, for benefits, and all questions or controversies of whatsoever character, arising in any manner or between any parties or persons, in .connection with the Relief Department or the operation thereof, whether as to the construction. of language, or the meaning of regulations, or as to any writing, decision, instructions or acts in connection with the operation of the department, shall be submitted to the determination of the superintendent, whose decision shall be final and conclusive thereof, unless a written appeal from his decision is made to the committee.

“If the party or parties so submitting any matter to the superintendent shall be dissatisfied with his decision, such party or parties shall appeal to the committee within thirty days after notice to the parties interested of the decision of the superintendent.

“When an appeal is taken to the committee, it shall be heard by said committee without further notice, at their next stated meeting, or at such future meeting or time as they may designate, and shall be determined by vote of the majority of a quorum, or -of any other number not less than a quorum of the members present at such meeting, and the decision arrived at thereon by the committee shall be final and conclusive upon all parties, without exception or appeal.”

Extract from application agreement required:

“I also agree that in consideration of the amounts paid and to be paid by said company for the maintenance of said Relief Department, and of the guarantee by said company of the payments of said benefits, the acceptance by me of benefits for injury shall operate as a release and satisfaction of all claims against said company, and all other companies associated therewith in the administration of their Relief Department, for damages arising from or growing out of said injury; and further, in the event of my death, no part of said death benefit or unpaid disability benefit shall be due or payable unless and until good and sufficient releases shall be delivered to the superintendent of said Relief Department, of all claims against said Relief Department as well as against said company and all other companies associated therewith as aforesaid, arising from or growing out of my death,' said releases having been duly executed by all who might legally assert such claims; and further, if any suit shall be brought against said company, or any other company associated therewith as aforesaid, for damages arising from or out of injury or death occurring to me, the benefits *324otherwise payable, and all obligations of said Relief Department and of said company, created by my membership in said relief 'fund, shall thereupon be forfeited without declaration or other act by said Relief Department or said company.”

Extract from Revised Regulations (Exhibit “B,” p. 19) :

“I also agree, for myself and those claiming through me, to be especially bound by the regulation providing for final and conclusive settlement of all claims for benefits or controversies of whatsoever nature, by reference to the superintendent of the Relief Department, and an appeal from his decision to the advisory committee.”

The defendant demurred to the complaint upon the following grounds:

“1. It does not allege that the defendant did not use reasonable care and diligence in the selection and employment of the surgeons, nurses and attendants in the hospital, at the time alleged in the complaint, when plaintiff was in said hospital for surgical care and attention.

“2. That it does not allege that the defendant knew that the said surgeons, nurses and attendants, or any of them, were incompetent or careless, or that it retained them, or any of them, after knowing that they were incompetent, or having grounds to believe they were incompetent.

“3. That it does not allege any negligence on the part of the defendant in the selection or employment of any of the said surgeons, nurses or attendants, or in retaining them after it knew they were incompetent, or had good reasons to believe they were incompetent.”

His Honor overruled the demurrer, with leave to the defendant to answer over. The defendant appealed.

D. J. Lewis and Meares & Ruarle for plaintiff.

George B. Elliott, Davis & Davis and J. B. Schulhen for defendant.

Manning, J.,

after stating the case: The defendant company owns and controls and operates several thousand miles of railroad in this and other States. It has established in this State, at least, a Relief Department, in which only its employees are admitted as members, and in which they can remain as members only so long as they continue to be employees. As members, they are required to contribute each month a fixed amount, regulated by the monthly pay; the lowest paying 75 cents per month, and the highest $8.25 per month, according to the benefits to be received, which range from $250 to $5,000. The membership is based upon an application signed by the employee, *325and tbe applicant agrees to be bound by tbe rules and regulations of tbe Relief Department; that tbe company shall apply tbe stipulated amount eacb month from bis wages, “for tbe purpose of securing tbe benefits provided in tbe regulations for a member of tbe relief fund”; further, tbe applicant agrees, “that, in consideration of tbe amount paid and to be paid by said company for the maintenance of said Relief Department, and of tbe guarantee by said company of tbe payment of said benefit, tbe acceptance by me of said benefits shall operate as a release and satisfaction of all claims against said company, and all other companies associated therewith in tbe administration of their Relief Departments, for damages arising from or growing out of said injury; and further, in tbe event of my death, no part of said death benefit or unpaid disability benefit shall be due or payable unless and until good and sufficient release shall be delivered to tbe superintendent of said Relief Department of all claims against said Relief Department, as well as against said company and all other companies associated therewith, as aforesaid.”

In our opinion, it becomes necessary to determine tbe validity and effect of tbe agreement, in order to fix the character of tbe Relief Department of tbe defendant, whether it is an agency or-an association' with only benevolent aims and purposes, or a mere agency created by tbe defendant to serve, under tbe cloak of charity, tbe purpose of avoiding liability for negligent injuries received by its employees.

Tbe concluding sentence of section 2646, Rev., known as tbe Fellow-servant Act, is in these words: “Any contract or agreement, express or implied, made by any employee of such company to waive tbe benefit of this section, shall be null and void.” Tbe authorities agree, without dissent, that all contracts made by railroad companies to avoid liability for their own negligence are void. There is, also, a unanimity of decision that if 1he agreement made by tbe employee, upon entering tbe Relief Department, is a contract by which tbe railroad company undertakes to stipulate against liability for its own negligence, then all such stipulations are void. Some courts, however, as Pennsylvania, Maryland, Iowa, South Carolina, Indiana, Georgia, construe tbe agreement as giving the injured employee an election or choice of remedies: either to accept the benefits-or to bring his action for damages. These courts also hold that it is not the stipulation made in advance that is effective, but the acceptance of benefits after the injury that constitutes the release of the company and bars the action for damages. ¥e have read with care and attention the opinions of the learned *326courts that have considered this question, and have given to them that attentive consideration which their learning and high standing demand that they should receive from us. Their conclusions are but persuasive upon us; the question has not been passed upon by this Court and is an open question. After giving the matter that careful consideration its importance requires, we have reached the conclusion which we now express.

The Relief Department of this defendant has been declared by this Court, in Nelson's case, 147 N. C., 103, to be a mere agency of the defendant; it is not incorporated and has no separate entity, but it is, in fact, “a bureau or department” of the defendant company, not having the capacity to sue or be sued. The employees of the defendant company contribute of their monthly wages to this department; the defendant handles the money and is responsible for its safe-keeping; it agrees to pay 4 per cent on monthly balances and guarantees the payment of the benefits accruing by the regulations to its members. It, likewise, contributes to this department, it is potent in its management and control, and in the selection of the surgeons and physicians. If an employee of the company is injured by negligence, why should he be required to stipulate in advance that he must choose between a forfeiture, on the one hand, of all benefits which accrue to him under the rules and regulations of the department to which he has contributed each month, and, on the other hand, his right of action, of which he cannot be deprived by any agreement, express or implied? For whose benefit is this choice of remedies to be made? Certainly, not for that injured employee who has, during each month of his membership, been contributing of his earnings in order that the benefits of the department may be his in time of need. Why should he be forced to elect for the sole benefit of that contributor to this department who receives and manages its funds, even though its contributions to it largely exceed those of any other contributor? Is it not the obvious purpose of the company to place its employees, who may be negligently injured, in the position to forego the benefits of an association which they have helped to create, or to take the chance of a suit with it for damages in the courts, with its attendant annoyances, delays and uncertainties? What doth it advantage the employee? Is not all-the benefit to the company? This-choice of remedies is to be made only by those employees whose injuries or death are caused by the negligence of the defendant. Upon no other contingency is the employee forced to choose; in no other contingency is he confronted with an election of remedies, nor is he under the compulsion of choice. Further, those who are in*327jured or killed by negligence can receive no benefit stipulated in tbe rules and regulations, “unless and until” a complete release of tbe action for damages is properly executed. Sucb is tbe compulsion of tbe stipulation; sucb is tbe “letter of tbe bond.” Tbe election of remedies originates in and is predicated upon tbis stipulation.

In our opinion, tbis stipulation is an ingenious scheme devised by tbe company to avoid responsibility for its negligence, and, as sucb, is inequitable and void. Sucb would seem to be tbe view of tbe Federal Congress, by its adoption, in 1906, of tbe following enactment, 34 Stat. L., 234, approved 11 June, 1906: “No contract of employment, insurance, relief benefit, or indemnity for injury or death, entered into by or on behalf of any employee, nor tbe acceptance of any sucb insurance, relief benefit,' or indemnity, by the person entitled thereto, shall constitute any bar or defense to atny action brought to recover damages for personal injuries to or death of sucb employee: Provided, however, that upon tbe trial of sucb action against any common carrier tbe defendant may set off therein any sucb insurance, relief benefit, or indemnity thait may have been paid to tbe injured employee, or, in case of bis death, to bis personal representative.” And by tbe adoption, 22 ‘April, 1908, cb. 149, sec. 535, Stat. L., 65, of tbe following enactment: “That any contract, rule, regulation or device whatsoever, tbe purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by tbis act, shall to that extent be void: Provided, that in any action brought against any sucb common carrier, under or by virtue of any of the provisions of tbis act, sucb 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 tbe injured employee or tbe person entitled thereto on account of tbe injury ur death for which said action was brought.”

Eliminating, therefore, tbis regulation and stipulation, as void, we have then a Relief Department or' association, supported by tbe mutual contributions of employee and employer, maintained for tbe sole purpose of relieving and mitigating 'the suffering of its members — a charity whose noble purposes are untainted by selfish interest, or, to quote tbe definition of Gray J., in Johnson v. Phillips, 14 Allen, 539, we have a charity which, “in tbe legal sense, may be more fully defined as a gift, to be applied, consistently with existing laws, for tbe benefit of an indefinite number of persons, either by bringing their minds or hearts under 'the influence of education 'or religion, by relieving their bodies from disease, suffering or con*328straint, by assisting tbem to establish themselves in life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government. It is immaterial whether the-purpose is called charitable in the 'gift itself, if it is so described as to show that it is charitable in its nature.” Fire Patrol v. Boyd, 120 Pa. St., 624; 1 L. R. A., 4171.

With the character of the relief association thus defined, what is the extent of the duty of the defendant in selecting the physicians and surgeons and attendants who perform the offices cast upon them in their respective positions ? The law is well settled that the only duty imposed upon the defendant is the duty to exercise reasonable care in the selection of the physicians and surgeons who are reasonably competent, and having exercised this duty, the company is not chargeable with the want of skill of the physician or surgeon whom, it has selected, in the performance of the service he is required to render. 3 Elliott on Railroads (2 Ed.), sec. 1388; R. R. v. Zeiler, 54 Kan., 340; U. P. R. R. v. Artist, 60 Fed., 365; Powers v. Hospital, 109 Fed., 294; Maine v. R. R., 109 Iowa, 260; York v. R. R., 98 Iowa, 544; Quinn v. R. R., 94 Tenn., 713; R. R. v. Price, 13 So. Rep., 638; McDonald v. Hospital, 120 Mass., 432; Loubheim v. S. S. Co., 107 N. Y., 228; Allan v. S. S. Co., 132 N. Y., 91; O'Brien v. S. S. Co., 154 Mass., 272; R. R. Co. v. Sullivan, 141 Ind., 83; Haggarty v. Ry. Co., 100 Mo. App., 424; Perry v. House of Refuge, 63 Mo., 20; Hearns v. Waterbury Hospital, 66 Conn., 98; Downes v. Harper Hospital, 101 Mich., 555; Fire Patrol v. Boyd, 120 Pa. St., 624; 1 L. R. A., 417; Parks v. Northwestern Univ., 2 L. R. A. (N. S.), 556; 218 Ill., 381; R. R. v. Howard, 45 Neb., 570.

We find no allegation of such negligence of the defendant in the complaint; the negligence complained of, and the sole theory of the complaint, is the malpractice of the surgeon and his attendants, but it is nowhere alleged that these were carelessly or negligently selected by the defendant; or, if they were incompetent, that such incompetency was known to the defendant. We think the allegation of such negligence material and that the . complaint, in failing to contain it, is demurrable. We conclude there was error in overruling the demurrer, and the judgment is reversed and the action will be dismissed, unless the plaintiff shall obtain leave to amend the complaint, from the judge before whom- the motion shall be made.

Reversed.

Brown, J.

(in whose opinion Mr. Justice WalkeR concurs) : While I concur in the result, I cannot agree to all that is said in the opinion of the Court.

*329The facts are that the plaintiff was a member of the Relief Department of the defendant, and voluntarily went to its hospital to be treated for a fistula, brought on from natural, causes, and in no sense an injury received by reason of the negligence of the defendant or its employees.

1. It would seem, therefore, that the Court has unnecessarily and improperly declared section 64 of the regulations of the Relief Department void. The Court has done this of its own motion and not at instance of either party. The learned counsel for both plaintiff and defendant admitted that section 64 was a valid and binding regulation upon the parties to this record.

If this plaintiff, having been injured by the negligence of the defendant, had sued to recover damages, and defendant had pleaded in bar of a recovery that the plaintiff had elected to take the benefits of the Relief Department, offered by it in lieu of damages, then the validity of section 64 would be squarely before the Court. But, as it is not claimed by plaintiff that the defendant is in any way responsible for the existence of the fistula, I am constrained to think that the validity of section 64 is not presented upon this appeal, and that the observations upon it are to be regarded as purely obiter dicta.

2. I am of opinion that section 64 is not void as against public policy, as a scheme devised by defendant to avoid the consequences of its own negligence.

The act of Congress referred to by the Court has no bearing whatever upon this case, as it appears upon the pleadings to be a matter wholly under the jurisdiction of this State, and in no particular within the domain of Federal legislation regulating interstate commerce. Besides, it makes the employee when holding' the company liable for negligence, account for all he may have received from the Relief Department. Section 64 does not enable the defendant to avoid the consequences of its own negligence.

The whole scheme of the Relief Department is founded upon a policy that considers the welfare of the employees as well as of the employer. "While the member pays certain annual dues, which are very small, the company bears by far the heaviest portion of the expense of maintaining the department. Its benefits are not confined to free hospital service, but embraces pay for 52 weeks, if disabled so long. All the employees of the company may take its benefits, whether disabled in the company’s service or ill from other causes. The insurance feature is a most valuable one to the employee. And if an employee is injured in the company’s service, he is not denied the right to sue the company for damages. That right is expressly reserved *330to bim. But be cannot take tbe benefits conferred by tbe Relief Department in case be does sue for damages.

No principle of public policy requires tbat tbe injured employee should be permitted to take botb. If be is sick from natural causes be bas tbe right to seek aid from tbe Relief Department. If be is injured in tbe service of tbe company be is entirely free to sue for damages, as much so as if no Relief Department existed. Under existing conditions, tbe injured employee may take whichever course be thinks is to bis interest, whereas before be was confined to one.

If,- in a helpless or unconscious condition from sudden injury, be is involuntarily carried to tbe hospital, no court would bold it to be an election, and it would be no bar to bis action. Tbe acceptance to bar recovery must be under circumstances when tbe injured employee bas capacity to decide for bimSelf. It seems tbat my learned brethren have not been able to fortify their opinion with any authority, as tbe case quoted from 14 Allan bears on a bequest in a will for charitable purposes.

On tbe other band, it appears tbat this identical' Relief Department is no new thing in this country. It bas worked well for employees and employer for thirty years or more and is common to nearly all tbe great railway systems of this country and Canada. Tbe validity of section 64 bas been upheld by text-writers and nearly all tbe courts of tbe Union. My brethren are setting up their personal opinions against tbe collective wisdom and well-considered judgments of over a hundred judges of tbe ablest courts in our land as well as in Canada.

All tbe text-writers agree with Judge Thompson, tbat tbe validity of this provision of tbe Relief Department of railways bas been so well settled tbat it is not open to question. Thompson on Neg., secs. 3853-4635.

While novel in this State, tbe validity of this contract bas been supported by tbe highest courts of New York, Pennsylvania, Maryland, Indiana, Iowa, Nebraska, Ohio, Illinois-, West Virginia, New Jersey, South Carolina, Georgia, Alabama, and also by tbe Federal Courts of Appeal in the Fourth, -Fifth, Sixth, Seventh and Eighth circuits. I quote from a few of tbe opinions.

In Petty v. R. R., 109 Ga., 666, tbe Court, speaking through Justice Lumplcin, states tbe case with great clearness: “Tbe contract does not in any of its terms or conditions stipulate tbat tbe defendant company should be absolved from the legal consequences of its own negligence or tbat of its servants. On tbe contrary, it merely provides a.n additional remedy to tbat given by law to an employee who might suffer injury by reason of tbe *331negligence, actual or imputable, of bis master. Tbe latter remedy was left intact, undisturbed and unimpaired; and tbe injured employee might or might not, at bis option, take advantage thereof. Trae, be could not avail himself of both, but was put upon bis voluntary election as to which of tbe two be would pursue. This feature of tbe contract is not only technically permissible, but is in perfect harmony and accord with tbe 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 the party thereto, in the event he sustains loss.” Approved in Carter v. Penna. and Wes. Ry. Co., 115 Ga., 853; 42 S. E., 239.

In Leas v. Penn. R. R., 37 N. E. Rep., 423, the Supreme Court of Indiana says: “There is no rule of public policy which condemns an arrangement between an employer and his servants, looking to compromises of claims for damages, and a system of general mutual relief for servants and their families.” So, also, is Bell v. C. B. and Q. R. R. Co., 42 Neb., 44; 62 N. W., 314; Eckman v. C. B. and Q. R. R. Co., 169 Ill., 312; 38 L. R. A., 750; Fuller v. B. and O. Emp. Rel. Assn., 67 Md., 43; 10 Atl., 237; C. B. and Q. R. R. Co. v. Curtis, 51 Neb., 442; Maine v. C. B. and Q. Ry. Co., 109 Iowa, 269; 70 N. W., 630.

In the ease of R. R. v. Moore, 152 Ind., 345, the Court said: “It is nothing more nor less than a contract for a choice between sources of compensation, where but a single one existed, and it is the final choice — the acceptance of one against the other — that gives validity to the transaction.” The Iowa courts said substantially the same thing, and that the contract was mutual and violated no principle of public policy. As said by the Supreme Court of Pennsylvania, Johnson v. Ry., 163 Penn., 127: “The employee is not agreeing to exempt the company from liability for negligence, but accepting compensation for an injury already caused thereby.” The same Court well says: “The substantial feature of the contract, which distinguished it from those held void as against public policy, is that the party retains whatsoever right of action until after knowledge of all the facts and an opportunity to make his choice between the sure benefit of the association and the chances of litigation, and, having accepted the former, he cannot justly ask the latter in addition.” To the same effect speaks the Ohio Court: R. R. v. Cox, 55 Ohio St., 497.

In the Indiana case, R. R. v. Moore, supra, the Court, reviewing the authorities, says : “Indeed, the cases seem to be in sub-*332stan.ti.al accord.” Tbe Obio Court, in Sheets v. R. R., 68 Ohio St., sustaining tbe identical section now under consideration, said: “Tbe cases form a uniform current of judicial opinion. We have not been cited to a single case bolding a contrary view, and our research bas not been rewarded witb one. We think tbe tide of judicial opinion is irresistible.”

There were only two decisions in this country adverse to these views, and they were both overruled by tbe courts that made them. Miller v. R. R., 65 Fed. Rep., overruled 76 Fed., 439; Montgomery v. R. R., overruled in Moore v. R. R., 152 Ind., 345.

In view of tbe great array of cases from nearly all tbe courts of this country, constituting a solid phalanx of judicial precedents, as well as text-writers, against them, I can but admire tbe courage witb which my brethren stand by their own unsupported views.

For myself, I believe witb my Lord Coke, that “It is tbe function of a judge not to make, but declare the law according to tbe golden metewand of tbe law, and not by tbe crooked cord of discretion.” Omnis innovatio plus novitate perturbat quam utilitate prodest.

To indicate bow absolutely overwhelming tbe judicial precedents are against tbe views of tbe majority of this Court, I append a list of forty-one cases in tbe United States and Canada wherein tbe validity of this contract bas been sustained. There are none against it. Graft v. B. and O. R. R. Co., 8 Atl., 206 (Ba.); Fuller v. B. and O. Emp. Rel. Assn., 67 Md., 433; Owens v. B. and O., 1 L. R. A., 75; Post v. B. and O. Emp. Rel. Assn., 122 Pa., 579 (Pa.); Black v. B. and O., 36 Fed., 655; Martin v. B. and O., 41 Fed., 125; Kinney v. B. and O. Emp. Assn., 15 L. R. A., 142 (W. Va.); Spitze v. B. and O., 75 Md., 162; Leas v. Penn. Ry. Co., 10 Ind. App., 47; Johnson v. Penn. R. R. Co., 163 Pa. St., 127; Ringle v. Penn. R. R. Co., 164 Pa. St., 529; Donald v. C. B. and Q., 93 Iowa, 284; Wymore v. C. B. and Q., 50 Neb., 658; Bell v. C. B. and Q., 44 Neb., 44; Bryant v. B. and O. Emp. Assn., 9 Ohio C. C., 333; Brown v. B. and O. Emp. Assn., 6 App. D. C., 246; Smith v. B. and O. Emp. Assn., 81 Md., 412; Vickers v. C. B. and Q., 71 Fed., 139; Otis v. Penn. Ry. Co., 71 Fed., 136; Shaver v. Penn. Ry. Co., 71 Fed., 931; Eckman v. C. B. and Q., 169 Ill., 312; Cox v. P. C. C. and St. L., 35 L. R. A., 507 (Ohio); Stankard v. B. and O., 49 L. R. A., 381; Maine v. C. B. and Q., 109 Iowa, 269; Curtis v. C. B. and Q., 51 Neb., 442; Johnson v. Char. and S., 55 S. C., 152; Moore v. P. C. C. and St. L., 152 Ind., 345; Hosea v. P. C. C. and St. L., 152 Ind., 416; Beck v. Penn. R. Co., 63 N. J. L., 233; Petty v. Brun. and W. R. Co., 109 Ga., *333 666; Clinton v. C. B. and Q., 84 N. W., 90 (Neb.); Elwood v. P. C. C. and St. L., 25 Ind. App., 674; Cowen et al. v. Ray, 108 Fed., 320; U. S. Cir. Ct. App.; Fivey v. Penn. R. Co., 12 Am. Neg. Rep., 313 (N. J.); Ferguson v. Grand Trunk, Rap. Jud. Que., 2 C. S., 54 (following Queen v. Grenier, 30 Can. Sup. St., 42) ; Hamilton v. St. L. K. and N. W., 118 Fed., 95; Carter v. Brun., and W. Ry. Co., 115 Ga., 853; Oyster v. Bur. Rel. Dep., 59 L. R. A., 291 (Neb.); Sheets v. P. C. C. and St. L., 68 Ohio St., 9; Walters v. C. B. and Q., 19 Am. Neg. Rep., 350 (Neb.); Harrison v. Ala. M. Ry. Co., 40 Law Rep., 394.