Manning, J.,
after stating the case: The defendant company owns and controls and operates several thousand miles of railroad in this and other States. It has established in this State, at least, a Relief Department, in which only its employees are admitted as members, and in which they can remain as members only so long as they continue to be employees. As members, they are required to contribute each month a fixed amount, regulated by the monthly pay; the lowest paying 75 cents per month, and the highest $8.25 per month, according to the benefits to be received, which range from $250 to $5,000. The membership is based upon an application signed by the employee, [325]*325and tbe applicant agrees to be bound by tbe rules and regulations of tbe Relief Department; that tbe company shall apply tbe stipulated amount eacb month from bis wages, “for tbe purpose of securing tbe benefits provided in tbe regulations for a member of tbe relief fund”; further, tbe applicant agrees, “that, in consideration of tbe amount paid and to be paid by said company for the maintenance of said Relief Department, and of tbe guarantee by said company of tbe payment of said benefit, tbe acceptance by me of said benefits shall operate as a release and satisfaction of all claims against said company, and all other companies associated therewith in tbe administration of their Relief Departments, for damages arising from or growing out of said injury; and further, in tbe event of my death, no part of said death benefit or unpaid disability benefit shall be due or payable unless and until good and sufficient release shall be delivered to tbe superintendent of said Relief Department of all claims against said Relief Department, as well as against said company and all other companies associated therewith, as aforesaid.”
In our opinion, it becomes necessary to determine tbe validity and effect of tbe agreement, in order to fix the character of tbe Relief Department of tbe defendant, whether it is an agency or-an association' with only benevolent aims and purposes, or a mere agency created by tbe defendant to serve, under tbe cloak of charity, tbe purpose of avoiding liability for negligent injuries received by its employees.
Tbe concluding sentence of section 2646, Rev., known as tbe Fellow-servant Act, is in these words: “Any contract or agreement, express or implied, made by any employee of such company to waive tbe benefit of this section, shall be null and void.” Tbe authorities agree, without dissent, that all contracts made by railroad companies to avoid liability for their own negligence are void. There is, also, a unanimity of decision that if 1he agreement made by tbe employee, upon entering tbe Relief Department, is a contract by which tbe railroad company undertakes to stipulate against liability for its own negligence, then all such stipulations are void. Some courts, however, as Pennsylvania, Maryland, Iowa, South Carolina, Indiana, Georgia, construe tbe agreement as giving the injured employee an election or choice of remedies: either to accept the benefits-or to bring his action for damages. These courts also hold that it is not the stipulation made in advance that is effective, but the acceptance of benefits after the injury that constitutes the release of the company and bars the action for damages. ¥e have read with care and attention the opinions of the learned [326]*326courts that have considered this question, and have given to them that attentive consideration which their learning and high standing demand that they should receive from us. Their conclusions are but persuasive upon us; the question has not been passed upon by this Court and is an open question. After giving the matter that careful consideration its importance requires, we have reached the conclusion which we now express.
The Relief Department of this defendant has been declared by this Court, in Nelson's case, 147 N. C., 103, to be a mere agency of the defendant; it is not incorporated and has no separate entity, but it is, in fact, “a bureau or department” of the defendant company, not having the capacity to sue or be sued. The employees of the defendant company contribute of their monthly wages to this department; the defendant handles the money and is responsible for its safe-keeping; it agrees to pay 4 per cent on monthly balances and guarantees the payment of the benefits accruing by the regulations to its members. It, likewise, contributes to this department, it is potent in its management and control, and in the selection of the surgeons and physicians. If an employee of the company is injured by negligence, why should he be required to stipulate in advance that he must choose between a forfeiture, on the one hand, of all benefits which accrue to him under the rules and regulations of the department to which he has contributed each month, and, on the other hand, his right of action, of which he cannot be deprived by any agreement, express or implied? For whose benefit is this choice of remedies to be made? Certainly, not for that injured employee who has, during each month of his membership, been contributing of his earnings in order that the benefits of the department may be his in time of need. Why should he be forced to elect for the sole benefit of that contributor to this department who receives and manages its funds, even though its contributions to it largely exceed those of any other contributor? Is it not the obvious purpose of the company to place its employees, who may be negligently injured, in the position to forego the benefits of an association which they have helped to create, or to take the chance of a suit with it for damages in the courts, with its attendant annoyances, delays and uncertainties? What doth it advantage the employee? Is not all-the benefit to the company? This-choice of remedies is to be made only by those employees whose injuries or death are caused by the negligence of the defendant. Upon no other contingency is the employee forced to choose; in no other contingency is he confronted with an election of remedies, nor is he under the compulsion of choice. Further, those who are in[327]*327jured or killed by negligence can receive no benefit stipulated in tbe rules and regulations, “unless and until” a complete release of tbe action for damages is properly executed. Sucb is tbe compulsion of tbe stipulation; sucb is tbe “letter of tbe bond.” Tbe election of remedies originates in and is predicated upon tbis stipulation.
In our opinion, tbis stipulation is an ingenious scheme devised by tbe company to avoid responsibility for its negligence, and, as sucb, is inequitable and void. Sucb would seem to be tbe view of tbe Federal Congress, by its adoption, in 1906, of tbe following enactment, 34 Stat. L., 234, approved 11 June, 1906: “No contract of employment, insurance, relief benefit, or indemnity for injury or death, entered into by or on behalf of any employee, nor tbe acceptance of any sucb insurance, relief benefit,' or indemnity, by the person entitled thereto, shall constitute any bar or defense to atny action brought to recover damages for personal injuries to or death of sucb employee: Provided, however, that upon tbe trial of sucb action against any common carrier tbe defendant may set off therein any sucb insurance, relief benefit, or indemnity thait may have been paid to tbe injured employee, or, in case of bis death, to bis personal representative.” And by tbe adoption, 22 ‘April, 1908, cb. 149, sec. 535, Stat.
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Manning, J.,
after stating the case: The defendant company owns and controls and operates several thousand miles of railroad in this and other States. It has established in this State, at least, a Relief Department, in which only its employees are admitted as members, and in which they can remain as members only so long as they continue to be employees. As members, they are required to contribute each month a fixed amount, regulated by the monthly pay; the lowest paying 75 cents per month, and the highest $8.25 per month, according to the benefits to be received, which range from $250 to $5,000. The membership is based upon an application signed by the employee, [325]*325and tbe applicant agrees to be bound by tbe rules and regulations of tbe Relief Department; that tbe company shall apply tbe stipulated amount eacb month from bis wages, “for tbe purpose of securing tbe benefits provided in tbe regulations for a member of tbe relief fund”; further, tbe applicant agrees, “that, in consideration of tbe amount paid and to be paid by said company for the maintenance of said Relief Department, and of tbe guarantee by said company of tbe payment of said benefit, tbe acceptance by me of said benefits shall operate as a release and satisfaction of all claims against said company, and all other companies associated therewith in tbe administration of their Relief Departments, for damages arising from or growing out of said injury; and further, in tbe event of my death, no part of said death benefit or unpaid disability benefit shall be due or payable unless and until good and sufficient release shall be delivered to tbe superintendent of said Relief Department of all claims against said Relief Department, as well as against said company and all other companies associated therewith, as aforesaid.”
In our opinion, it becomes necessary to determine tbe validity and effect of tbe agreement, in order to fix the character of tbe Relief Department of tbe defendant, whether it is an agency or-an association' with only benevolent aims and purposes, or a mere agency created by tbe defendant to serve, under tbe cloak of charity, tbe purpose of avoiding liability for negligent injuries received by its employees.
Tbe concluding sentence of section 2646, Rev., known as tbe Fellow-servant Act, is in these words: “Any contract or agreement, express or implied, made by any employee of such company to waive tbe benefit of this section, shall be null and void.” Tbe authorities agree, without dissent, that all contracts made by railroad companies to avoid liability for their own negligence are void. There is, also, a unanimity of decision that if 1he agreement made by tbe employee, upon entering tbe Relief Department, is a contract by which tbe railroad company undertakes to stipulate against liability for its own negligence, then all such stipulations are void. Some courts, however, as Pennsylvania, Maryland, Iowa, South Carolina, Indiana, Georgia, construe tbe agreement as giving the injured employee an election or choice of remedies: either to accept the benefits-or to bring his action for damages. These courts also hold that it is not the stipulation made in advance that is effective, but the acceptance of benefits after the injury that constitutes the release of the company and bars the action for damages. ¥e have read with care and attention the opinions of the learned [326]*326courts that have considered this question, and have given to them that attentive consideration which their learning and high standing demand that they should receive from us. Their conclusions are but persuasive upon us; the question has not been passed upon by this Court and is an open question. After giving the matter that careful consideration its importance requires, we have reached the conclusion which we now express.
The Relief Department of this defendant has been declared by this Court, in Nelson's case, 147 N. C., 103, to be a mere agency of the defendant; it is not incorporated and has no separate entity, but it is, in fact, “a bureau or department” of the defendant company, not having the capacity to sue or be sued. The employees of the defendant company contribute of their monthly wages to this department; the defendant handles the money and is responsible for its safe-keeping; it agrees to pay 4 per cent on monthly balances and guarantees the payment of the benefits accruing by the regulations to its members. It, likewise, contributes to this department, it is potent in its management and control, and in the selection of the surgeons and physicians. If an employee of the company is injured by negligence, why should he be required to stipulate in advance that he must choose between a forfeiture, on the one hand, of all benefits which accrue to him under the rules and regulations of the department to which he has contributed each month, and, on the other hand, his right of action, of which he cannot be deprived by any agreement, express or implied? For whose benefit is this choice of remedies to be made? Certainly, not for that injured employee who has, during each month of his membership, been contributing of his earnings in order that the benefits of the department may be his in time of need. Why should he be forced to elect for the sole benefit of that contributor to this department who receives and manages its funds, even though its contributions to it largely exceed those of any other contributor? Is it not the obvious purpose of the company to place its employees, who may be negligently injured, in the position to forego the benefits of an association which they have helped to create, or to take the chance of a suit with it for damages in the courts, with its attendant annoyances, delays and uncertainties? What doth it advantage the employee? Is not all-the benefit to the company? This-choice of remedies is to be made only by those employees whose injuries or death are caused by the negligence of the defendant. Upon no other contingency is the employee forced to choose; in no other contingency is he confronted with an election of remedies, nor is he under the compulsion of choice. Further, those who are in[327]*327jured or killed by negligence can receive no benefit stipulated in tbe rules and regulations, “unless and until” a complete release of tbe action for damages is properly executed. Sucb is tbe compulsion of tbe stipulation; sucb is tbe “letter of tbe bond.” Tbe election of remedies originates in and is predicated upon tbis stipulation.
In our opinion, tbis stipulation is an ingenious scheme devised by tbe company to avoid responsibility for its negligence, and, as sucb, is inequitable and void. Sucb would seem to be tbe view of tbe Federal Congress, by its adoption, in 1906, of tbe following enactment, 34 Stat. L., 234, approved 11 June, 1906: “No contract of employment, insurance, relief benefit, or indemnity for injury or death, entered into by or on behalf of any employee, nor tbe acceptance of any sucb insurance, relief benefit,' or indemnity, by the person entitled thereto, shall constitute any bar or defense to atny action brought to recover damages for personal injuries to or death of sucb employee: Provided, however, that upon tbe trial of sucb action against any common carrier tbe defendant may set off therein any sucb insurance, relief benefit, or indemnity thait may have been paid to tbe injured employee, or, in case of bis death, to bis personal representative.” And by tbe adoption, 22 ‘April, 1908, cb. 149, sec. 535, Stat. L., 65, of tbe following enactment: “That any contract, rule, regulation or device whatsoever, tbe purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by tbis act, shall to that extent be void: Provided, that in any action brought against any sucb common carrier, under or by virtue of any of the provisions of tbis act, sucb common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity, that may have been paid to tbe injured employee or tbe person entitled thereto on account of tbe injury ur death for which said action was brought.”
Eliminating, therefore, tbis regulation and stipulation, as void, we have then a Relief Department or' association, supported by tbe mutual contributions of employee and employer, maintained for tbe sole purpose of relieving and mitigating 'the suffering of its members — a charity whose noble purposes are untainted by selfish interest, or, to quote tbe definition of Gray J., in Johnson v. Phillips, 14 Allen, 539, we have a charity which, “in tbe legal sense, may be more fully defined as a gift, to be applied, consistently with existing laws, for tbe benefit of an indefinite number of persons, either by bringing their minds or hearts under 'the influence of education 'or religion, by relieving their bodies from disease, suffering or con[328]*328straint, by assisting tbem to establish themselves in life, or by erecting or maintaining public buildings or works or otherwise lessening the burdens of government. It is immaterial whether the-purpose is called charitable in the 'gift itself, if it is so described as to show that it is charitable in its nature.” Fire Patrol v. Boyd, 120 Pa. St., 624; 1 L. R. A., 4171.
With the character of the relief association thus defined, what is the extent of the duty of the defendant in selecting the physicians and surgeons and attendants who perform the offices cast upon them in their respective positions ? The law is well settled that the only duty imposed upon the defendant is the duty to exercise reasonable care in the selection of the physicians and surgeons who are reasonably competent, and having exercised this duty, the company is not chargeable with the want of skill of the physician or surgeon whom, it has selected, in the performance of the service he is required to render. 3 Elliott on Railroads (2 Ed.), sec. 1388; R. R. v. Zeiler, 54 Kan., 340; U. P. R. R. v. Artist, 60 Fed., 365; Powers v. Hospital, 109 Fed., 294; Maine v. R. R., 109 Iowa, 260; York v. R. R., 98 Iowa, 544; Quinn v. R. R., 94 Tenn., 713; R. R. v. Price, 13 So. Rep., 638; McDonald v. Hospital, 120 Mass., 432; Loubheim v. S. S. Co., 107 N. Y., 228; Allan v. S. S. Co., 132 N. Y., 91; O'Brien v. S. S. Co., 154 Mass., 272; R. R. Co. v. Sullivan, 141 Ind., 83; Haggarty v. Ry. Co., 100 Mo. App., 424; Perry v. House of Refuge, 63 Mo., 20; Hearns v. Waterbury Hospital, 66 Conn., 98; Downes v. Harper Hospital, 101 Mich., 555; Fire Patrol v. Boyd, 120 Pa. St., 624; 1 L. R. A., 417; Parks v. Northwestern Univ., 2 L. R. A. (N. S.), 556; 218 Ill., 381; R. R. v. Howard, 45 Neb., 570.
We find no allegation of such negligence of the defendant in the complaint; the negligence complained of, and the sole theory of the complaint, is the malpractice of the surgeon and his attendants, but it is nowhere alleged that these were carelessly or negligently selected by the defendant; or, if they were incompetent, that such incompetency was known to the defendant. We think the allegation of such negligence material and that the . complaint, in failing to contain it, is demurrable. We conclude there was error in overruling the demurrer, and the judgment is reversed and the action will be dismissed, unless the plaintiff shall obtain leave to amend the complaint, from the judge before whom- the motion shall be made.
Reversed.