Atchison, T. & S.F. Ry. Co. v. Fronk

• Decision Date: 10 November 1906
• Citation: 87 P. 698,74 Kan. 519
• Parties: ATCHISON, T. & S. F. RY. CO. v. FRONK.
• Court: Kansas Supreme Court

87 P. 698

74 Kan. 519

ATCHISON, T. & S. F. RY. CO. v. FRONK.

Supreme Court of Kansas

November 10, 1906

Syllabus

A student brakeman, who, in consideration of being permitted to ride on a railway company’s freight train to observe and learn the duties of a freight brakeman, agrees to perform service on its engines, trains, and cars, while learning such duties, is an employé of the company.

[Ed Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1-3, 147, 148.]

Under the statutes of this state a contract entered into by such employé exempting the company from all liability for damages which he may sustain in consequence of the negligence of the company, its agents, servants, or employés, is against public policy, and void.

[Ed Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 166-170.]

Error from District Court, Stafford County; J. W. Brinckerhoff, Judge.

Action by C. A. Fronk, administrator of Elmer Tindall, against the Atchison, Topeka & Santa Fé Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Burch, J., dissenting.

A. A. Hurd, O. J. Wood, W. R. Smith, and A. A. Scott, for plaintiff in error.

D. A. Banta and T. W. Moseley, for defendant in error.

OPINION

GREENE, J.

This action was commenced by C. A. Fronk, administrator of the estate of Elmer Tindall, deceased, to recover damages for the death of Tindall alleged to have been occasioned by the negligence of the servants and employés of the defendant, the Atchison, Topeka & Santa Fé Railway Company. It is alleged in the petition that at the time Elmer Tindall received the injuries from which he died, he was in the service of the defendant as a student brakeman on a freight train; and that through the negligence of the agents, servants, and employés of the defendant company, there was a collision between another freight train and the one upon which Elmer Tindall was riding, causing his death.

In avoidance of its liability the defendant pleaded the following contract between it and Elmer Tindall, entered into before it admitted him upon its trains as a student brakeman, and alleged that it was under the terms and conditions of this contract that Tindall was upon its trains when he was killed:

"Santa Fé

"(Insert name of Railway Company.)

"Application to Learn Work of Freight Brakeman or Fireman, and Release.

"Whereas, I, the undersigned, Elmer Tindall, residing at Hoisington, in the state of Kansas, and being 25 years of age, desiring to learn the work necessary to fit myself for the occupation of a brakeman on freight trains, have applied to Atchison, Topeka & Santa Fé Railway Company for an opportunity of learning said work, and to that end have requested the privilege of working on and about the locomotives, trains and cars of said railway company without expectation or promise of receiving wages or any pay whatever for work so done during such time, and without being considered as an employé of said company during said time; and whereas, the railway company is willing to grant me the privilege above applied for on the representation and statement above made, but on account of the dangers to which I may be exposed, also requires that the railway company, its officers and agents, shall be relieved from all liability for damage, injury or death sustained by me while so working, or while riding, walking or standing on or about such locomotives, trains or cars, or while on or about the property or premises of the railway company; now, therefore, in consideration of said company granting me the permission and privileges hereinbefore mentioned, I do hereby agree to and do hereby assume all dangers of such work and risks of injuries which may be sustained by me in or about such work, whether the same may be caused by or arise from the negligence of the railway company or of the officers, agents or servants thereof, or otherwise, or which I may receive from any cause whatsoever during the term of my connection with said company in learning the work aforesaid; and I hereby release and forever discharge said Atchison, Topeka & Santa Fé Company, and the officers and agents thereof, from any and all claims, demands, suits or liabilities of any kind for death or for any injury that I may sustain, whether the same be caused by or arise from the negligence of the said railway company, or of the officers, agents or employés thereof, or otherwise, during the term of my connection with said company in learning the work aforesaid, while upon or about such locomotives, trains or cars, or while walking or standing on or about the same, or while on or about any such property or the premises of said railway company; and I further agree that I will not claim any wages or compensation for any work that I may do during such time, nor claim to be in the employ of said company nor an employé thereof during such time.

"Witness my hand and seal at Dodge City, State of Kansas, this 4th day of August, 1904.

"Elmer Tindall [Seal.]

"Signed in presence of H. C. Duncan, Witness."

To this defense the plaintiff demurred, which was sustained, and the defendant brings the cause here for review.

The relation of the parties at the time Elmer Tindall was killed is one of the controlling questions in this controversy. The plaintiff in error contends that under the contract upon which Tindall was permitted to go and remain on its trains he was a mere licensee for his own personal benefit, and by the contract had expressly waived any claim for damages resulting to him in consequence of the negligence of the company’s agents, servants, and employés. In determining the relation of parties courts are not bound by the agreements of the parties as to what such relations shall be or to the legal effect of its terms. Notwithstanding such agreements whenever the question is properly presented courts will analyze the elemental facts of the agreement and determine therefrom the actual relations of the parties. In Missouri Pacific Ry. Co. v. Ivy, 71 Tex. 409, 9 S.W. 346, 1 L. R. A. 500, 10 Am. St. Rep. 758, which was an action for damages for personal injury sustained by one who was shipping cattle under an agreement, indorsed on the back of the shipping contract, that the shipper was an employé of the railway company, it was said: "By the agreement indorsed on the back of the contract, he agrees that he is the employé of the company, but that is evidently a fiction to provide for the release of the company from damages for personal injuries occasioned by the negligence of its servants. It is a pretense, a subterfuge, upon which to predicate the discharge of the company for damages in a plausible form. The true relations of the parties cannot be changed by such an agreement. It states a fact which is untrue; the agreement that it is true does not make it so. It amounts to this: Knowing that a contract would be of doubtful validity that absolved the company or limited its liability as a common carrier of passengers, the contract was devised in which the passenger acknowledges himself to be an employé of the company, so as to contract for its limited liability upon such relation, and give it the semblance of legality. If the liability of a common carrier cannot be limited in express terms, and by a direct agreement, it cannot be done upon false or counterfeited relations." Persons capable of contracting are at liberty, inter parties, to make any contract that may to them seem advantageous, provided, however, that such contracts do not attempt to transgress the law or...