Pittsburgh, C., C. & St. L. Ry. Co. v. Hosea

• Citation: 53 N.E. 419,152 Ind. 412
• Court: Supreme Court of Indiana
• Decision Date: 07 April 1899
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. HOSEA.

152 Ind. 412

53 N.E. 419

PITTSBURGH, C., C. & ST. L. RY. CO.

v.HOSEA.

Supreme Court of Indiana.

April 7, 1899.

Appeal from circuit court, Clark county; H. D. Gibson, Judge.

Action by Nora Hosea, administratrix of the estate of Charles Hosea, deceased, against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

S. Stansifer, for appellant. Laurent A. Douglass, for appellee.

HADLEY, J.

This action is for the death of appellee's decedent, who was a resident of this state, and who died in the city of Louisville, Ky., of injuries there received in coupling cars while in the service of appellant as a switchman, and leaving surviving him appellee, his widow, and one child. The complaint, pleading the Kentucky statute commonlyknown as “Lord Campbell's Act,” and which in all material respects is similar to ours upon the same subject, is in two paragraphs. Each paragraph rests upon section 1 of the act of 1893, approved March 4, 1893 (Acts 1893, p. 294; Burns' Rev. St. 1894, § 7083). The first paragraph of the complaint charges that the injury was caused by and because of the negligent violation by the engineer of a rule of the company for his guidance. The second paragraph charges the same things as to the engineer and fireman. Demurrers to each paragraph of the complaint were overruled. Answer in three paragraphs,-the first a general denial; the second a special plea in bar; and the third, the same as the second, pleaded as a partial defense in bar of the widow's right of recovery. A demurrer to the second paragraph was sustained. Trial on denial and partial answer, and judgment for plaintiff for $2,350 for benefit of child. The errors assigned call in question the action of the court in overruling the demurrer to each paragraph of the complaint, and in sustaining the demurrer to the second paragraph of answer.

The second paragraph of answer sets up the following facts: Appellant and other companies operating lines west of Pittsburgh, under the same general management, organized a “voluntary relief department” for the benefit of such employés as might see fit to become members; relief in stipulated amount to be extended to members when disabled, while in the service, from sickness, accident, personal fault, or any other cause, and, in case of death, a gross sum to beneficiary named by member in his application. The relief fund is made up of contractual contributions by the members, retained out of their monthly wages, and interest from investments of the funds. The associated companies will take general charge of the department, guaranty the fulfillment of obligations assumed, supply the necessary facilities for conducting the business of the department, and pay all the operating expenses thereof, will take charge of the fund, and be responsible for its safekeeping; each of the associated companies obligating itself to contribute its share of expense in the administration of the relief department free of any charge or cost to the relief fund or to the members thereof, including medical and surgical assistance to members in certain cases, salaries and expenses of any character, and guarantying that the benefits stipulated for with its own employé members, whether for disability or death, shall be paid in full. The stipulated disability and death benefits are based on amount of monthly contribution by each member. By the rules and regulations it is provided that an employé desiring to become a member must make written application, as per form in the rules and regulations, to the superintendent of the relief department, stating the kind or kinds of relief, the amount to be donated, naming his death beneficiary, making the rules and regulations a part of the application and contract with his employer company, if accepted by the superintendent; the application to contain, among others, the following stipulation: “And I agree that the acceptance of benefits from said relief fund for injury or death shall operate as a release of all claims for damages against said company arising from such injury or death, which could be made by or through me, and that I or my legal representatives will execute such written instrument as may be necessary, formally, to evidence such acquittance.” And the regulations accepted and made part of the application contain the following: “Should a member or his representative bring suit against either of the associated companies for damages on account of injury or death of such member, payment of benefits from the relief fund on account of the same shall not be made until such suit is discontinued. If prosecuted to judgment or compromise, any payment of judgment, or amount in compromise, shall preclude any claim upon the relief fund for such injury or death.” On the 9th day of August, 1892, the said Charles Hosea, an employé of appellant company, made application to said superintendent (copy with the answer), as required, and containing the foregoing stipulations, naming the amount to be donated each month, and designating his wife, the said Nora Hosea, his death beneficiary. On the 1st day of September, 1892, the application was accepted by the superintendent, and the deceased duly notified, and until his death the deceased continued in the service of said company and membership, making his donations to said fund as in the application, until his injury and death; and, there being due said death beneficiary the sum of $1,000, the same was paid and accepted by her out of said fund, death having been caused by the injuries mentioned in the complaint. With respect to the complaint, counsel for appellant, in his able brief, says: “It not being questioned that each paragraph is within the meaning of the statute [section 7083, supra], and especially so in view of the fact that the complaint, showing, as it does, not only that the injury was caused by the negligence of fellow servants, but also that appellant had promulgated proper rules, it is not deemed necessary to further set forth the substance of the complaint. If the statute is unconstitutional, the complaint is bad.” No objection to either paragraph of the complaint is pointed out, except that both are obnoxious to the constitution. Appellant propounds the following as the questions presented by this appeal: “(1) Constitutionality of the corporation employers' liability act of March 4, 1893, and especially the fifth section. (2) Whether contracts of the kind in this case are within the meaning of section 5; and, if so, whether the section is violative of the obligation of the contract in this case, entered into before the act. (3) Whether acceptance of benefits by the death beneficiary of a deceased employé,member of appellant's voluntary relief department, bars an action on death.”

The first question propounded has been decided by this court adversely to appellant's contention in the case of Railway Co. v. Montgomery, 152 Ind. 1, 49 N. E. 582. The question had full consideration in that case, and we are content with the conclusion there arrived at.

The first branch of the second proposition, namely, “whether contracts of the kind in this case are within the meaning of section 5” of the act of March 4, 1893, has also recently received consideration by this court in the case of Railway Co. v. Moore (decided March 30, 1899) 53 N. E. 290. The contract reviewed in the Moore Case is identical in terms with the contract pleaded in the second paragraph of answer in this case, and in the former we held that the contract was not one to release or relieve the railroad company from future liability, but a contract that, in the event of injury, the injured party would then, after injury, elect between two sources of compensation, and that his election of...