BALTIMORE & O. R. CO.
to Use of
BLACK, 'V. BALTrilORlil
& O. R. Co.
(Olrcuit (J()urt, D. MOI1'1Jland.
mURA'Nc:m-RAlLROAD RELIEF ASSOCIATION-By·LAW-PuBLIC POLICY.
The widow of an employe of the B. & O. R. Co., after the death of her husband, released any claim she might have against the railroad company for causing his death. for the purpose of enabling her husband's mother to obtain, from the B. & O. Relief Association. payment of an amount of life in· surance, which. under its constitution, was payable only on condition that aU persons entitled to sue the railroad company for his death should release the railroad company from liability. Held. in a suit by the widow against the railroad company, that the release was not invalid as against public policy.
·(8yllab'U8 by tM Uourt.)
At Law. Action for damages. On demurrer to replication. J. H. Keene, Jr., and A. Stirling, for plaintiffs. Cowen « Or088 and George Dobbin Penniman, for defendant.
MORRIS, J. This is an action brought by the widow of Cassius Black, who was an employe of the Baltimore & Ohio Railroad Company, 10 recover damages from the railroad company for causing his death by negliKence. The action is given by article 67 of the Maryland Code, which directs that it shall be brought in the name of the state of Maryland for the use of the wife, husband, parent, and child of the person whose, death has been caused, and within 12 months after the death. :.rhe defendant railroad company pleads a release under seal, ex;ecute<i by both the mother of the deceased and by his widow; the equitable iiff in this case, in which release it is recited that in consideration of .$1,000, paid to them by the Baltimore & Ohio Relief Association, rl'llease and discharge both the' relief association and the Baltimore & <>hioRailroad Company from all claims and demands whatsoever arising from the said death. To this plea the plaintiff has replied that, the release pleaded was obtained by fraud, and on.this replication the defend.ant has j(lined issue. The plaintiff has filed also five other repli()ations, to which the defendant has demurred, and it is the questions of law raised by these. demurrers which are now to be passed upon. Some, of these replications deny the facts recited in the release, but it is clear that, .as the release set out in the plea is a technical release under seal, the plaintiff cannot be heard to allege or allowed to prove to the contrary of what she has solemnly admitted under hand and seal. So long as the release stan<;lsunassailed for fraud, the plaintiff is concludecLfrom denying the facts recited in it.. The other replications demurred to proceed upon the theory that the release is void because obtained as the result .of a which should be held illegal as against that rule of public policy which forbids an employer contractiog with an empwye for -emption from. liability for his own negligence. The constitution of the Baltimore & Ohio Relief Assvciation, a corporation chartered by the Ma.:ryland legislature, and which the employes of the Baltimore & .Ohio Railroad Company are compelled to become members of) provides that
before the person named by the member as the beneficiary of the insurance upon his life shall be paid there must be executed a release, signed by all persons who might be, entitled to recover damages from the railroad company, releasing the railroad company from all damages to which it might be liable by the reason ofthe death. The question of the reasonablenessof this provision ofthe constitution of the relief association came before the Maryland court of appeals in Fuller v. Association, 67 Md. 433, 10 At!. Rep. 237, and it was held to be a reasonable stipulation, and that no suit could be maintained the relief association for the amount insured upon the life ofa member who had been killed while in the service of the railroad, company, if the persons entitled to recover damages from it for his death refused to release their claim for damages against the railroad company It is solely i>y reason of the, statute of Maryland giving aright of action to the wife,husband, parent, or children of the person whose death has been caused by negligence, that the plaintiff has any standing at all in court, and in Fuller v. Association, we have the decision of the highest court of the state declaring that the condition in the contract of insurance which requires such a rightofac,tion to be released before the insurance can be claimed is a reasonable and valid ·provision. Notwithstanding the rule of public policy which prohibits railroads as common'carriers from stipulating for exemption from responsibility for DPgligerice, it is lawful for them to limit the for which theywill be resp()nsible, or to stipulate that any insuranceeflected by the owner onthegoods shipped shall be applied to their exoneration. 'Insurance Co; v. Transportation Co., 117 U. S. 312,6 Sup.Ct Rep. 750,1176. The Baltimore & Ohio 'Itailroad Company has promoted the relief association, and guarantied its contracts, and contributedto its funds, and it does not appear to me that it is contrary to any rule of public policy which has the sanction of the courts to hold that it may avail ofa releas(:l obtained by the relief association for its benefit under 11 provision of the constitution of the relief association which the Maryfand court of appeals has held to be, reasonable and lawful. This view of the lawfulness and validity of the release required by the relief association was also held by Judge SAGE in Owens v. Railroad Co., 35' Fed; Rep. 715. It is also to be considered that the release pleaded as a discharge was executed by the plaintiff after the cause ofactionupon which she sues had arisen. The insurance upon the life of her husband did not affect her rights at all, as it was made payable to her hueband's rrlother. SlHl had no contractual relations with either the railroad companyorthereliefassociation, and cannot complain of any contract made with her husband as being against public policy, because she is unil;ffeeted by any such contract except so far as she herself has chosen to respect itsinca' his death. If,in consideration of the payment by the re-liefassociationof $1,'000 to her husband's mother, she has released her claim for damages, why should it not be valid?· She could have released her claim in consideration of five dollars, or ariy valuable consideration whatever, and it would have been valid; or, if she was advised that she could prove the necessary allegations of negligence, she had a.
HARDY V. MINNEAPOLIS & ST. L. RY. CO.
perfect cause or action which' she could maintain in court the railroad company for whatever damages a jury might a!'lsess in her favor. If, having this right of action, she has, since her husband's death, voluntarilyand without deception practiced upon her, released it, induced tq do so by the certain benefit which would thereby accrue to her husband's mother, I can see no ground upon which the release can be treated u.s a nullity. The demurrers are sustained.
,HARDY V. MINNEAPOLIS
& ST. L. Ry. Co.
(Circuit Court, D. Minnesota. November 14, 1888.)
In an action for negligence, where the evidence on the material issues is ,conflicting, the court will not set aside a verdict, though it would have been , entirely satisfied if the result had been the other way.
MASTER ANI> SERVANT-NEGLIGENCE OF VICE-PRINCIPAL.
NEGLIGENCE-PROVINCE OF COURT AND JURY.
M., defendants' yard-master, mounted the switch-engine, and, while acting !Ls engineer, gave deceased directions to assist in uncoupling cars. The latter, while so employed, was run over and killed. Held, that the court properly refused an instruction that, while M. was acting as engineer, he was a ,fellow-servant of deceased, and defendant would not be liable for his acts as such. Though actually engaged as an engineer, he was none the less yardmaster, and entitled to be obeyed in the work of making up trains.
In an action by the next of kin to recover damages for the negligent killing of the deceased. the damages being limited to the pecuniary loss, evidence to show the or bad reputation of such next of kin is inadmissible to affect that questIOn.
DEaTH BY WRONGFUL ACT-AcTION-EvIDENCE.
At Law. On motion for new trial. Action by Emeline A. Hardy, as administratrix of the estate of Frank S.Hardy, deceased, against the Minneapolis & St. Louis Railway Company and the Burlington, Cedar Rapids & Northern Railway Company, 'to recover damages for the alleged negligent killing of her intestate. There was a verdict for plaintiff, and defendants moved for flo new trial. D. F.Morgan and W. Boumrt.n, for plaintiff. J. D; Springer and F. D. Larrabee, for defendants. SarnAs, J. The question of negligence, upon which this case turned before the jury, was whether the deceased, Frank Hardy, was required by his superior officer, tOo'wit, Murphy, the yard-master, to perform the duties of a switchman, and as such to go between the cars of the moving train for the purpose of uncoupling the same. There can be no doubt that a person who performs sueh duties is placed in a dangerous position. The deceased, a lad of 16, had been engaged to perform the ,duties of a call-boy at the yard of defendants at Albert Lea. Hemet his death by being crushed between two cars in the defendants' yard, whileerigaged ihuncouplil1g the same. The question offact upon v .36F.no.11-42