Baltimore & Ohio Railroad v. Duke

38 App. D.C. 164, 1912 U.S. App. LEXIS 2105

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 5, 1912
• Docket: No. 2297
• Status: Published

Opinions

Mr. Justice Robb

delivered the opinion of the Court:

It is clear that if the contract originally entered into between Duke and the express company was in force at the time Duke was injured, that contract constituted a complete defense to his action, and hence should have been received in evidence. Baltimore & O. R. Co. v. Voigt, 176 U. S. 498, 44 L. ed. 560, 20 Sup. Ct. Rep. 385. At the time Duke signed that contract he was a minor, but- at the time of his injury sixteen months had elapsed since he had attained his majority. The contract, under the authority of Voigt’s Case, was not invalid as against public policy, and hence, if it was a subsisting contract when Duke became of age, his continuance in the service of the express company for so long a period thereafter clearly constituted a ratification thereof. Forsyth v. Hastings, 27 Vt. 646; State v. Dimick, 12 N. H. 194, 37 Am. Dec. 197; Monumental Bldg. Asso. v. Herman, 33 Md. 128; 1 Taylor, Infancy, p. 85.

Was said contract of December 1, 1903, a subsisting contract at the time Duke was injured ? The application inducing that contract and forming a part thereof was one merely for employment. But upon a consideration of that application, the express company entered into a contract with Duke by which he was to serve it as helper, and to perform such other services as might be directed from time to time. For said services, that is to say, for his work as helper, and for' such other work as might properly be assigned to him, he was to receive $18 per month, — no more or no less. That was the measure of the value of his services under the contract. We think, therefore, that the provision in the contract that he was, if required, to perform services in addition to those of a helper, must be held to mean services of similar character or value.

At the time of his injury, Duke had been promoted to the position of driver, and was receiving the compensation attached to that position. Assuming that, while serving under his original contract, the services he was performing at the time of his injury would have been in the line of his duty, that is, a service contemplated by and included in the terms of that contract, he contends — and in that contention he is sustained by the record — that it was no part of his duty as a driver to act as train guard. The change in his position effected a change in his relations with the express company. His duties and responsibilities were materially different, and his compensation correspondingly greater. Under the evidence he then became a member of a distinct and separate class of employees. It was no longer his duty to act as a train guard. How, then, can it be contended that this old contract continued in force ? Had the general agent who testified entered the employ of the express company as a helper, and had thereafter been promoted to the position of driver, and then to the position of general agent, could it have been successfully contended that a contract similar in form to the one signed by Duke would have remained in force although not alluded to in any way after its execution ? And yet the difference between such a case and the present is one merely of degree. Had not the duties and responsibilities of a driver been materially different from those contemplated by the written contract, undoubtedly the presumption would have been that the conditions of that contract continued in force. But the existence of such a material difference between the new duties and the old destroyed that presumption. Ranck v. Albright, 36 Pa. 367; Ingalls v. Allen, 132 Ill. 171, 23 N. E. 1026.

While the contract which Duke signed has been held not to be one against public policy, it nevertheless absolves the railroad company from the consequences of its own negligence, and hence should receive a strict construction. Moreover, by its terms Duke waived important rights, and his waiver should not be extended by implication or surmise. 2 Shearm. & Redf. Neg. p. 917; St. Louis & S. E. R. Co. v. Smuch, 49 Ind. 302; Kenney v. New York C. & H. R. R. Co. 125 N. Y. 422, 26 N. E. . The language employed does not require the conclusion that, when the new service was undertaken, a service as we have said differing essentially from the original service, the conditions attached to the old service continued. Had such been the intent of the express company, the contract should have so provided, and in the absence of such a provision, Duke should have been required expressly to assent to a continuance of the conditions of the superseded contract.

In view of the foregoing, we rule that when Duke was advanced to the new position of driver the old contract was thereby terminated. Having been terminated, Duke was no longer bound by its waiver provisions, and the court properly refused to receive it in evidence.

One point remains. Appellant- contends that inasmuch as Duke, at the time of his injury, was riding on the pass furnished him, he was bound by its provisions and hence assumed all risk of accident and injury. We cannot accept this contention. This pass was not issued as a gratuity, but upon consideration moving from the express company to the carrier. The case is not ruled, therefore, by Northern P. R. Co. v. Adams, 192 U. S. 440, 48 L. ed. 513, 24 Sup. Ct. Rep. 408, and Boering v. Chesapeake Beach R. Co. 193 U. S. 442, 48 L. ed. 742, 24 Sup. Ct. Rep. 515, but rather by Blatcher v. Philadelphia, B. & W. R. Co. 31 App. D. C. 385, 16 L.R.A. (N.S.)) 991; New York C. R. Co. v. Lockwood, 17 Wall. 357, 21 L. ed. 627; Chamberlain v. Pierson, 31 C. C. A. 157, 59 U. S. App. 55, 87 Fed. 420; Kenney v. New York C. & H. R. R. Co. 125 N. Y. 422, 26 N. E. 626. Here, as in the case last cited, the contract between the express company and the common carrier does not in unmistakable language provide an exemption from liability for the negligence of the carrier’s employees. Here, as there, the contract between the carrier and the express company may be read not as releasing or preventing an action by employees of 'the express company against the carrier for injuries sustained by reason of the negligence of the carrier, but rather as an agreement to indemnify the carrier in the event of such an action. Moreover, there is nothing in the record warranting an assumption that Duke knew of the terms of the contract between the express company and appellant. Of course, as we have said, under the terms of Duke’s original contract, by which he agreed, in consideration of his employment, to assume all risks incident thereto, and to ratify all agreements between his employer and common carriers exempting such common carriers from liability for injuries sustained by him, he could not have recovered; but, as we have said, that contract was no longer in force at the time of his injury.

To recapitulate: There was no provision in the written contract between Duke and the express company, that the conditions of that contract should continue in force beyond the completion of the service contemplated therein. In the absence of pvidence, we cannot assume that the new service, essentially differing, as we have said, from the old, was undertaken upon the same conditions as the old. At the time of his injury, therefore, Duke had not waived his right of action for injuries sustained by reason of the negligence of the appellant. As the conditions of exemption contained in the pass upon which he was riding were void for the reasons above stated, he was properly permitted to recover.

Judgment affirmed, with costs. Affirmed.