New v. Southern Ry. Co.

• Decision Date: 07 August 1902
• Citation: 42 S.E. 391,116 Ga. 147
• Parties: NEW v. SOUTHERN RY. CO.
• Court: Georgia Supreme Court

42 S.E. 391

116 Ga. 147

NEW v. SOUTHERN RY. CO.

Supreme Court of Georgia

August 7, 1902

Syllabus by the Court.

1. A contract whereby a father hires his minor son to another, and releases him from all liability for "damages for any injuries sustained" by the son while in the employer's service, will, when such contract can, under the facts of a case arising thereunder, be properly treated as valid and binding, defeat a recovery by the father for the loss of the value of the son's services during minority even where such loss is occasioned by the homicide of the minor.

2. Such a contract, though made with a railway company, is valid and binding to the extent of exempting the latter from liability for negligent acts of itself or servants which are not criminal.

Error from city court of Atlanta; A. E. Calhoun, Judge.

Action by W. B. New against the Southern Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Arnold & Arnold, for plaintiff in error.

Dorsey Brewster & Howell and Sanders McDaniel, for defendant in error.

LUMPKIN P.J.

The Southern Railway Company employed as a switchman Looney Oscar New, the minor son of W. B. New. The latter entered into a written contract with the company, by which he, among other things, stipulated as follows: "I further hereby agree and consent that said company is by these presents released and forever acquitted from all or any claim or liability to me for damages for any injuries sustained by said Looney Oscar New while in its employment; and also that said company may pay all wages and other moneys due or growing out of said employment direct to him, and receive acquittance therefor from him in his own name." The minor was killed while in the service of the company, and the father brought an action for the value of his services up to the time when he would have attained majority. After the plaintiff had closed, the defendant introduced in evidence the above-mentioned contract, and the court directed a verdict in its favor, on the ground that this contract "barred any right of the plaintiff to recover." To this W. B. New excepted. The case, as here presented and argued, turns upon the two questions dealt with in the discussion which follows.

1. It was insisted in behalf of the plaintiff in error that, as the contract purported to relieve the company only from such damages as might arise from "injuries" sustained by the minor, it did not apply to damages resulting to the father from the son's death. While "injury" and "death" are by no means synonymous, it is certainly true that, relatively to a father seeking to recover for the lost services of his minor child, it is immaterial whether the tort from which his loss originated was one which occasioned the child physical injury, destroying his ability to labor, or one which, by causing his death, brought about the same result. So far as the alleged right of W. B. New to have compensation from the company was concerned, the killing of his son by it was, to all practical intents and purposes, the same as the injuring of him by it; for the gist of his action was the loss of the son's services. See Frazier v. Railroad Co., 101 Ga. 70, 28 S.E. 684. The company, in contracting with New for a release from damages for injuries sustained by the son, was manifestly seeking to free itself from damages which, but for the contract, the father might claim because of such injuries; and in this view it is without doubt proper to construe the term "injuries," used in the contract, as having been intended to apply to any and all kinds of bodily harm, whether resulting in partial or total disability of the minor or in his death.

2. The remaining and more important contention of counsel for the plaintiff in error is that, inasmuch as the contract, if enforced, will, in effect, relieve the company of liability for the consequences of its own negligence, it is for this purpose, at least, void, as being contrary to public policy. Our ruling on this branch of the case is expressed in the second headnote. In the case of Railroad Co. v Bishop, 50 Ga. 465, this court held that a contract between a railroad company and its employé, exempting the former from damages resulting from its own negligence, was, save as to "any criminal neglect of the company or its principal officers," valid. In that case the action was by an employé for personal injuries. The ruling therein made was followed and applied in Railroad Co. v. Strong, 52 Ga. 461, which was an action by a widow for the homicide of her husband; and it was decided that, as the contract was binding upon him, her right of action was cut off. A similar case--that of Hendricks v. Railroad Co.--appears in the same volume, page 467. The correctness of the rule laid down in Bishop's Case was recognized in that of Galloway v. Railroad Co., 57 Ga. 512, which was also an action for personal injuries, brought by an employé against the company. These cases were all decided before the passage of the act of February 15, 1876, "to define and punish criminal negligence," the provisions of which have been codified (Pen. Code, § 115) as follows: "If any person...