Barden,v,. Atlantic Coast Line Ry. Co.

• Decision Date: 13 April 1910
• Citation: 152 N.C. 318,67 S.E. 971
• Court: North Carolina Supreme Court
• Parties: BARDEN v . ATLANTIC COAST LINE RY. CO.

67 S.E. 971

152 N.C. 318

BARDENv. ATLANTIC COAST LINE RY. CO.

Supreme Court of North Carolina.

April 13, 1910.

1. Master and Servant (§ 100^*)—Injuries to Servant—Railroad Relief Department —By-Laws.

Rules and regulations of a railroad's relief department, exempting the railroad company from liability to members for injuries resulting from the railroad's negligence, as a condition precedent to the member's right to benefits from such department, were void.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. § 167; Dec. Dig. § 100.*]

2. Charities (§ 45*)—Railroad Relief Department — Malpractice — Negligence of Surgeon.

Eliminating as invalid regulations of a railroad's relief department, exempting the railroad from liability for negligent injuries received by its employes as a condition of the employes' right to benefits from the relief department, maintained by contributions of employes and the railroad company, such department constituted a charity, and hence the railroad company was not liable for the negligence or malpractice of surgeons and attendants employed therein, in the absence of proof of negligence in their selection.

[Ed. Note.—For other cases, see Charities, Cent. Dig. § 103; Dec. Dig. § 45.*]

Appeal from Superior Court, Columbus County; Lyon, Judge.

Action by N. F. Barden against the Atlantic Coast Line Railway Company. From an order overruling defendant's demurrer to the complaint, it appeals. Reversed.

The plaintiff complains that while he was an employé of the defendant, he was taken sick and was received into the hospital of the relief department of the defendant at Rocky Mount, to be there operated upon and attended to. That the operation was 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 was a member of therelief department, under a certificate issued to him, as follows: "Atlantic Coast Line Railroad Company. Relief Department. Certificate of Membership in the Relief Fund. No. 5282. Office of the superintendent, Wilmington, N. C. 19 Sept. 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." That plaintiff was operated on in May, 1906. That he had paid since his membership, 75 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 12 other members, of whom 6 are selected by the defendant company's board of directors and 6 by the contributing employes, 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 operation of the 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 employés 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 employes. 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 employe must make written application for membership in the relief fund. Rule 34. In this application, set out in rule 34, he is to state he has read or had read the regulations of the department, accepts them, together with subsequent changes or amendments, and accepts any agreement "now or hereafter made by the said company with any corporation or corporations now or hereafter associated with it in the administration of their relief departments." He agrees that the company may retain the stipulated contributions from his wages to be applied to the relief fund, and his agreement to do so shall constitute an assignment in advance for such portions of-his wages to the said company in trust. He also agrees that, if transferred to the service of any other company associated with the said company in the joint operation of their relief departments, it shall operate to transfer his membership in the relief department of such other company. Rule 34.

It is further provided that "contributions for any month will be due on the first of that month, and ordinarily be deducted from the member's wages on the pay roll of the preceding month, " but when a member has no wages on the pay roll, any contribution due from him must be paid in cash in advance, otherwise he will be in arrears. Rule 40. The 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, his membership shall thereupon cease." Rule 41.

It is provided by rule 49 how much shall be paid in the nature of benefits—to a member of the 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 the continuance of disability; but these sums are not paid for a longer period than 52 weeks. It is also provided by this rule (49) that provisions shall be made by the department, in addition to the benefits allowed, "for necessary surgical attendance, or, when such provision is not made, payment in behalf of the member of such bills for surgical attendance as are authorized and approved by the chief surgeon." There is likewise a provision that, in case of sickness, he shall have the 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 the recommendations of the medical officers of the relief department as to the proper care and treatment''

Certain death benefits are provided by rule 49. All of these "benefits are to be paid in conformity with the financial methods of the company, and on orders drawn by the superintendent, upon his receiving satisfactory certificates respecting the claims and such releases as may be required by him."

"When a member resigns from the service', or leaves the service 'without notice, or is relieved or discharged therefrom, his membership in the relief fund shall terminate with his employment, and he shall not be entitled to any benefits for time thereafter."

In the revised regulations (Exhibit B, p. 30) rule 47 provides: "Payment for each day, except for the first six days of disability classed as due to sickness, for a period not longer than fifty-two weeks, at the same rates as for accident benefits; and provision by the department for free medical treatment of the member, in one of the hospitals under its control, in cases of disability, classed as due to sickness which, in the opinion of the medical examiners of the...