Johnston v. Fargo

• Decision Date: 03 April 1906
• Citation: 77 N.E. 388,184 N.Y. 379
• Parties: JOHNSTON v. FARGO.
• Court: New York Court of Appeals Court of Appeals

184 N.Y. 379

77 N.E. 388

JOHNSTON

v.FARGO.

Court of Appeals of New York.

April 3, 1906.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Ray Johnston against James C. Fargo, as president of the American Express Company. From a judgment of the Appellate Division (90 N. Y. Supp. 725,98 App. Div. 436), affirming a judgment of the County Court, which affirmed a judgment of the Municipal Court, defendant appeals. Affirmed.

Willard A. Glen, for appellant.

Frederick A. Kuntzsch, for respondent.

GRAY, J.

The plaintiff, while in the employment of the American Express Company, the defendant, sustained personal injuries, for which he has recovered this judgment in the Municipal Court of the city of Syracuse, which has been affirmed by the County Court of Onondaga county and by the Appellate Division of the Supreme Court in the Fourth Department. The latter court was divided in opinion and has permitted the defendant to further appeal to this court, upon the ground that there was a question of law in the case which ought to be reviewed by us. The injuries were occasioned by the plaintiff's falling with an elevator, or lift, in the barn of the express company, while it was being used for carrying down some vehicles, and the complaint charges that it was in a defective condition and that the occurrence was due to the fault or negligence of the defendant. The evidence upon the trial was such as to raise questions of fact as to the negligence of the defendant and as to the contributory negligence of the plaintiff, and those questions were properly submitted by the trial court for the determination of the jury. They demand no further consideration by us. The one question for discussion upon this appeal is the sufficiency of the defense made by the company upon an agreement which the plaintiff, upon entering the defendant's employment, executed and delivered to it. It was in these words: ‘I do further agree, in consideration of my employment by said American Express Company, that I will assume all risks of accident or injury which I shall meet with or sustain in the course of such employment, whether occasioned by the negligence of said company, or any of its members, officers, agents, or employés, or otherwise, and that, in case I shall at any time suffer any such injury, I will at once execute and deliver to said company a good and sufficient release, under my hand and seal, of all claims, demands, and causes of action arising out of such injury, or connected therewith, or resulting therefrom; and I hereby bind myself, my heirs, executors, and administrators, with the payment to said express company, on demand, of any sum which it may be compelled to pay in consequence of any such claim, or in defending the same, including all counsel fees and expenses of litigation connected therewith.’ In submitting the case to the jury, the trial judge charged as follows with respect to this defense: ‘There is a clause in the contract which provides that the plaintiff shall release the defendant from any injuries which he might suffer by reason of the negligence of the defendant. I shall hold as matter of law that that clause in that contract is void as being without consideration and as against public policy.’ At the Appellate Division the judgment was upheld on this point upon the ground that the agreement was contrary to public policy, and therefore invalid, and Mr. Justice Hiscock, who delivered the opinion of the court, has presented the reasoning in support of that view very fully and ably.

The question is one upon which this court has not pronounced itself and it is of considerable importance, touching as it does the principle of freedom of contract. In the case of Purdy v. R., W. & O. R. R. Co., 125 N. Y. 209, 26 N. E. 255,21 Am. St. Rep. 736, such a contract to release the employer from liability for injury through negligence was involved; but it was held to have been void for being without the support of any consideration. It was said that no intimation was intended that it would have been valid if there had been a consideration for it, and that ‘it might even then be urged that public policy forbids the exaction of such a contract from its employés by railroad and and other corporations, and upon that question we desire to express no opinion at the present time.’ In Kenney v. N. Y. C. & H. R. R. R. Co., 125 N. Y. 422, 26 N. E. 626, the contract for exemption from liability was between the defendant and the plaintiff's employer, an express company, under which the former sought to defeat the plaintiff's action. This question was not passed upon; nor was it in the case of Dowd v. N. Y., Ont. & W. Ry. Co., 170 N. Y. 459, 63 N. E. 541, which involved the proposition of the implied assumption by the employé of the risks incident to the employment. The question of the validity of such a contract between an employer and a person in his employment, as affected by reasons of public policy, it must be conceded, is a debatable one. In support of the right to make the agreement we have respectable authority in decisions of the courts of England and of the state of Georgia. Griffiths v. Earl of Dudley, 9 Q. B. Div. 357; Western, etc., R. R. Co. v. Bishop, 50 Ga. 465; Same v. Strong, 52 Ga. 461. The great weight of authority in decisions of the courts of the various states, however, sustains the view that such an agreement is contrary to public policy. Railway Co. v. Spangler, 44 Ohio St. 471, 8 N. E. 467,58 Am. Rep. 833; Railroad Co. v. Peavey, 29 Kan. 169, 44 Am. Rep. 630; Railroad co. v. Jones, 2 Head (Tenn.) 517;Willis v. Railroad Co., 62 Me. 488;Railway Co. v. Eubanks, 48 Ark. 466, 3 S. W. 808,3 Am. St. Rep. 245; Railroad Co. v. Jones, 92 Ala. 218, 9 South. 276;Maney v. Railroad Co., 49 Ill. App. 105;N. N., etc., Co. v. Eifert, 15 Ky. Law Rep. 575;Blanton v. Dold, 109 Mo. 64, 18 S. W. 1149;Johnson's Adm'x v. Railroad Co., 86 Va. 975, 11 S. E. 829. In the Supreme Court of this state we find, in addition to what has been held below in this case, a similar view taken by the General Term of the Second Department in Simpson v. N. Y. Rubber Co., 80 Hun, 415, 30 N. Y. Supp. 339. The preponderance of authority adverse to the validity of such contracts is such as greatly and properly influences our view of the question. In Griffiths v. Earl of Dudley, supra, where such an agreement was held to be quite consistent with public policy, the view of the English court, as expressed by Justice Field, was that ‘the interest of the employed only would be affected,’ and not that of ‘all society,’ and ‘that workmen, as a rule, were perfectly...