McKay v. Louisville & N. R. Co.

Decision Date11 February 1916
Citation182 S.W. 874,133 Tenn. 590
CourtTennessee Supreme Court

Certiorari to Court of Civil Appeals.

Action by Val McKay against the Louisville & Nashville Railroad Company and others. From a judgment of the Court of Civil Appeals reversing a judgment of the circuit court for defendants, dismissing the suit, and remanding the cause for further proceedings, defendants bring certiorari. Reversed and judgment of circuit court affirmed.

Jno. T Allen, of Nashville, for plaintiff.

Chas C. Trabue and F. M. Bass, both of Nashville, for defendants.


The case is pending on certiorari. The writ has been granted and argument allowed. It is a suit for damages for personal injuries sustained while plaintiff, in the discharge of his duties as a messenger for the Southern Express Company, was riding in an express car, part of a passenger train operated by the defendant railroad company. The train was wrecked, and the injuries to plaintiff resulted.

To the declaration averring the negligent operation of the train as the cause of the wreck and consequent injuries to plaintiff, the railroad company, by way of defense, interposed its plea of the general issue, and, in addition thereto, a special plea, as was its right under section 4637, Shan. Code. This special plea admitted that the defendant was a corporation and common carrier on and prior to the date of the injury to plaintiff, but averred that on said date there was in force between it and the Southern Express Company a contract, by the terms of which it was agreed between the parties that the railroad company would furnish, for the use of the express company in the transaction of its business, cars to be hauled by the railroad company on its line, to be used for the transportation of express matter, and to be occupied by employés of said express company in charge of such express matter, such employés to be transported in said express cars free of charge by the railroad company, and that the express company should protect and hold harmless the railroad company from all liability that the railroad company might incur, or be under to the employés of the express company for any injuries such employés might sustain while being transported by defendant over its line, whether such injuries were caused by the negligence of the railroad company or its employés, or otherwise, and that pursuant to said contract the railroad company did furnish to the express company cars known as express cars, and one of these was occupied by plaintiff as express messenger at the time plaintiff sustained the injuries on which this suit is based; plaintiff being in said express car as custodian of express matter therein being transported. The plea then averred the execution by plaintiff of the contract, the material parts of which are set out on the margin of this opinion. [1]

To meet this special plea, plaintiff filed a replication in which it was averred that the said accident release was executed by him without consideration, inasmuch as he was at the time it was signed already in the employ of the express company, and was given no new or different contract of employment, and further that the contract was against public policy, and for this reason void. Other matters were averred in the replication which need not be set out for reasons later appearing herein.

The company demurred to the replication. The trial judge sustained the demurrer. Plaintiff declined to plead over, whereupon his suit was dismissed, and he prosecuted his appeal.

By the judgment of the Court of Civil Appeals it was held that the replication was sufficient, and, accordingly, it reversed the judgment of the circuit court and remanded the cause for further proceedings.

The petition for certiorari seeks a review of the opinion and judgment of the Court of Civil Appeals. Upon some questions made by the replication the opinion of the Court of Civil Appeals was favorable to the railroad company and against the plaintiff. The latter has presented no petition for certiorari and no assignment of errors, and is therefore concluded by the rulings adverse to it made by the Court of Civil Appeals on the points referred to above. See C., N. O. & T. P R. Co. v. Brock, 132 Tenn. (5 Thomp.) 477, 178 S.W. 1116; Knight v. Cooley, 131 Tenn. (4 Thomp.) 21, 173 S.W. 435; Murrell v. Rich, 131 Tenn. (4 Thomp.) 378, 412, 175 S.W. 420; chapter 82, Acts of 1907.

The Court of Civil Appeals was in error in its construction of the legal effect of the accident release contract. In the construction of contracts the object is to ascertain the intention of the parties, and the important question is what the contract means as a whole. Paige on Contracts, vol. 2, § 1112; Arbuckle v. Kirkpatrick, 98 Tenn. (14 Pick.) 221, 39 S.W. 3, 36 L. R. A. 285, 60 Am. St. Rep. 854. Courts will look to the nature of the subject-matter, the relation of the parties to the contract, and the object sought to be accomplished. Paige on Contracts, vol. 2, § 1123. There is no need in this case to resort to extrinsic evidence in the construction of the contract. Its terms are wholly free from ambiguity.

The contract begins as an application for employment and contemplates a term in futuro, but the applicant does not ask for a term for any particular length of time. He is content that the company may have the right to terminate the future term at its pleasure, and he agrees to all of the terms thereinafter set out, and that all his representations are for the purpose of procuring employment with the company. He then makes certain representations about himself, and thereafter agrees to execute a bond for the protection of the company, and then affixes his signature to his application. The conclusion is irresistible that this application looked to a future employment as contradistinguished from one which existed when the application was made, and it follows that a term existing when the application was made was extinguished by acceptance of the offer made by the applicant. Such acceptance ended the pre-existing employment, and initiated the new one contemplated by the application. This view is strengthened by other parts of the contract presently to be noticed. The next part of the contract is the accident release.

It is manifest that the words "have entered, or am about to enter," in the first clause of the accident release part of the contract, are intended to cover, on the one hand, the case of an applicant who, at the time of his application, was in the service of the company under a former contract of employment, which the applicant intended to come to an end by the acceptance of his offer to make a new contract, and, on the other hand, those words were intended to cover the case of an applicant who had not heretofore been employed by the company. The signature of the applicant affixed to this part of the contract completed his offer. The next and final part of the contract is the acceptance of the applicant's offer by the company.

The signature of the company to the last portion of the contract ended the old contract and completed the new one. Its signature was a definite acceptance of the offer of the applicant to enter into the new and to abandon the old contract relations. By this completed contract, in the absence of an averment in his replication of fraud practiced upon him by the express company in the procurement of the contract, the plaintiff is undoubtedly bound in law, whether he read the contract or not, at the time he affixed his signature thereto. Railroad Co. v. Stone & Haslett, 112 Tenn. (4 Cates) 348, 79 S.W. 1031; Railroad Co. v. Smith, 123 Tenn. (15 Cates) 678, 134 S.W. 866. Plaintiff stipulated for employment of a certain kind, and employment of that kind he received from the company. The consideration for the rights which he surrendered by the terms of the contract was the employment received, and the law does not allow that he shall deny the consideration, ignore his contract, and reassert and recover under his surrendered rights, after having enjoyed the benefits for which he contracted, and which he received, as the result of his contract.

Upon the question of consideration, it is immaterial whether plaintiff stipulated for a term of service to be extinguished at the pleasure of his employer or at a fixed time in futuro. The material fact is that he received what he contracted for, and what he received was of value in the eye of the law. Our conclusion therefore is that the contract was binding upon him, unless public policy avoids it.

Therefore the next question is whether the relationship of common carrier and passenger existed between the railroad company and plaintiff at the time he sustained his injuries. Many state courts of last resort had answered this question in the negative in passing upon cases involving facts and contracts like this, or closely analogous to it, prior to the decision in Baltimore & Ohio S.W. Ry. Co. v. William Voight, 176 U.S. 498, 20 S.Ct. 385, 44 L.Ed. 560. The question was also answered in the negative in the case last named. The contract involved in that case was in substance the same as the one involved here, and there, as here, the action was by an express messenger, and against a railroad company. The question certified in that case, after stating the material facts and the terms of the contract, was as follows:

"Does said railroad company assume, towards such express messenger while being carried in the course of his said employment in one of said express cars attached to a passenger train of said railroad company, pursuant to the contracts aforesaid, the ordinary liability of a common carrier of passengers for hire so as to render said railroad

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