Mr. Justice Breese
delivered the opinion of the court-:
This was an action on the case brought by the appellee against the appellant in the Cook county Circuit Court, for an injury received by appellee while riding on appellant’s cars.
The general issue was pleaded, and also three special pleas, setting up, as a defence, the fact, that without any consideration, appellant had given to appellee a free ticket or pass t'o ride on the railroad for a certain time, on which ticket was endorsed this agreement: —“ The person accepting this free ticket assumes all risks of accidents, and expressly agrees that this company shall not be liable, under any circumstances, for any injury to the person or for any loss or injury to the property of the passenger using this ticket.”
A demurrer to those pleas was sustained, and the only question arising upon them is, as to the effect of this agreement.
There was also a plea of release by appellee to appellant, as follows: “ That after the committing of the several grievances in etc., and before the commencement of this suit, to wit, on etc., at etc., the plaintiff, for a valuable consideration to him in hand paid by the said defendant, did release and forever discharge the said defendant of and from any and all liability to the said plaintiff for or by reason of the said several supposed grievances, and each and every of them, in the said declaration set forth, concluding with a verification. To this plea, a general demurrer was sustained.
The questions presented by the record for our deliberation are, the validity of these pleas, and another question as to the propriety of certain instructions given for appellee, and the incidental question of damages which we will not consider at this time.
It is insisted by appellant, that the endorsement on the free ticket was in all respects a valid agreement, and was a perfect immunity to the company for any accident or injury that might happen to the person holding it while upon the cars, no matter how the injury might be occasioned. That the holder assumes all the risks of injury from the negligence of the servants and agents of the company, and that it was competent for the parties to make the agreement, and when made is valid and binding.
The first case cited by appellant, in support of this proposition is the case of Welles v. The New York Central Railroad Co., 26 Barb., 641, a case quite similar to the one before us.
In that case it was held, such agreements are valid, and exempt the company from all injuries', except such as are the result of fraudulent, wilful or reckless misconduct on the part of the defendant’s officers or agents. It is there held also, that it is now an admitted principle that a common carrier, like other bailees for hire, may limit his risk by express contract, although a carrier cannot contract for an exemption from losses arising from his own personal fraud or gross negligence. Such a contract would be contra bonos ' mores and void.
.This case was taken to. the Court of Appeals, where it was held, there was nothing illegal in such contracts, and that by a fair construction, their stipulations cover every degree of negligence, save gross negligence, which is evidence of fraud • or of wilful injury. The court also held, that though this rule applied to individual carriers of persons, it could not apply to corporations engaged in that business. The court say, fraud and wilful misfeasance include a will, a motive, and a corporation, as such, can have no motive, no will, though its agents'may have both; and it would hardly do to hold the property of corporations liable for the wilful or criminal act of a person employed by the corporation, as such acts cannot be said to be done in the course of his employment.
And the court further say, that the term “gross negligence,” as used by the law, has a technical meaning, which is not properly applicable to those acts of servants of a corporation for which the corporation is responsible; though as between their acts which are slightly negligent, and those which are very negligént, there is no different rule of responsibility. It is the fact of negligence, mere negligence, and not its degree, which incurs the liability.
That the contract in question is, simply, a contract not to be liable for the mere negligence of the agents of the company, and that the judge who tried the cause was not authorized, by the agreed state of facts on which the case was tried, to find that the injury was the result of “gross negligence,” and that the case must be considered as if the word “gross” were omitted in the finding. Justice Southerland who dissented, held the contract for exemption was illegal and v.oid as against public policy, as tending to lessen the care such companies are required to bestow, and which is imposed on them as a public duty as common carriers of persons and property. This case also holds the company would be liable for gross negligence.
The next case cited by appellant is the case of Smith, administrator of Ward, against the same railroad company, 29 Barb., 132. That case also held, that while a carrier of passengers may, by positive stipulation, release himself, to a. limited extent, from the consequences of his own negligence or that of his servants, the contract to enable him to do so must be clear and explicit in its terms, and plainly covering such a case. The immunity of the carrier must be shown on the face of the contract. The company was held liable for the gross negligence and want of ordinary care of their servants and agents. The holder of the free ticket in this case had taken the risk of personal injury “from whatever cause.”
The case of Bissell, administratrix, against this same Company, Ibid, 602, shows the same contract, and the determination of the court was the same, that the company was liable for gross negligence, and Justice Smith, who delivered the opinion of the court in the case of Welles v. this Company, 26 Barb., 641, and who concurred in the ruling of this case of Bissell,- thought the verdict in it could be sustained without involving any inconsistency between the two cases, for the reason that Bissell’s case was put on the ground of gross negligence, and that there was no evidence in Welles’ case showing how the collision happened.
The next case is that of Perkins, administratrix, v. this same Company, 24 N. Y., in which it was held, that -a railroad corporation could not, by contract, exempt itself from liability to a gratuitous passenger for damage resulting from its own wilful misconduct, or recklessness, which is equivalent thereto. But it may contract for exemption from liability from any degree of negligence in its servants, other than the board of directors or managers who represent the corporation itself, for all general purposes.
In Welles’ case, as in this, the Hew York courts attempt a distinction between the negligence of the corporation, acting through its president and board of directors, and the negligence of their employees or servants and agents, a distinction which, we confess, we are unable to perceive. All corporations act by and through their agents, for whose, acts, in the line of their business, the corporation appointing them is held liable.
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Mr. Justice Breese
delivered the opinion of the court-:
This was an action on the case brought by the appellee against the appellant in the Cook county Circuit Court, for an injury received by appellee while riding on appellant’s cars.
The general issue was pleaded, and also three special pleas, setting up, as a defence, the fact, that without any consideration, appellant had given to appellee a free ticket or pass t'o ride on the railroad for a certain time, on which ticket was endorsed this agreement: —“ The person accepting this free ticket assumes all risks of accidents, and expressly agrees that this company shall not be liable, under any circumstances, for any injury to the person or for any loss or injury to the property of the passenger using this ticket.”
A demurrer to those pleas was sustained, and the only question arising upon them is, as to the effect of this agreement.
There was also a plea of release by appellee to appellant, as follows: “ That after the committing of the several grievances in etc., and before the commencement of this suit, to wit, on etc., at etc., the plaintiff, for a valuable consideration to him in hand paid by the said defendant, did release and forever discharge the said defendant of and from any and all liability to the said plaintiff for or by reason of the said several supposed grievances, and each and every of them, in the said declaration set forth, concluding with a verification. To this plea, a general demurrer was sustained.
The questions presented by the record for our deliberation are, the validity of these pleas, and another question as to the propriety of certain instructions given for appellee, and the incidental question of damages which we will not consider at this time.
It is insisted by appellant, that the endorsement on the free ticket was in all respects a valid agreement, and was a perfect immunity to the company for any accident or injury that might happen to the person holding it while upon the cars, no matter how the injury might be occasioned. That the holder assumes all the risks of injury from the negligence of the servants and agents of the company, and that it was competent for the parties to make the agreement, and when made is valid and binding.
The first case cited by appellant, in support of this proposition is the case of Welles v. The New York Central Railroad Co., 26 Barb., 641, a case quite similar to the one before us.
In that case it was held, such agreements are valid, and exempt the company from all injuries', except such as are the result of fraudulent, wilful or reckless misconduct on the part of the defendant’s officers or agents. It is there held also, that it is now an admitted principle that a common carrier, like other bailees for hire, may limit his risk by express contract, although a carrier cannot contract for an exemption from losses arising from his own personal fraud or gross negligence. Such a contract would be contra bonos ' mores and void.
.This case was taken to. the Court of Appeals, where it was held, there was nothing illegal in such contracts, and that by a fair construction, their stipulations cover every degree of negligence, save gross negligence, which is evidence of fraud • or of wilful injury. The court also held, that though this rule applied to individual carriers of persons, it could not apply to corporations engaged in that business. The court say, fraud and wilful misfeasance include a will, a motive, and a corporation, as such, can have no motive, no will, though its agents'may have both; and it would hardly do to hold the property of corporations liable for the wilful or criminal act of a person employed by the corporation, as such acts cannot be said to be done in the course of his employment.
And the court further say, that the term “gross negligence,” as used by the law, has a technical meaning, which is not properly applicable to those acts of servants of a corporation for which the corporation is responsible; though as between their acts which are slightly negligent, and those which are very negligént, there is no different rule of responsibility. It is the fact of negligence, mere negligence, and not its degree, which incurs the liability.
That the contract in question is, simply, a contract not to be liable for the mere negligence of the agents of the company, and that the judge who tried the cause was not authorized, by the agreed state of facts on which the case was tried, to find that the injury was the result of “gross negligence,” and that the case must be considered as if the word “gross” were omitted in the finding. Justice Southerland who dissented, held the contract for exemption was illegal and v.oid as against public policy, as tending to lessen the care such companies are required to bestow, and which is imposed on them as a public duty as common carriers of persons and property. This case also holds the company would be liable for gross negligence.
The next case cited by appellant is the case of Smith, administrator of Ward, against the same railroad company, 29 Barb., 132. That case also held, that while a carrier of passengers may, by positive stipulation, release himself, to a. limited extent, from the consequences of his own negligence or that of his servants, the contract to enable him to do so must be clear and explicit in its terms, and plainly covering such a case. The immunity of the carrier must be shown on the face of the contract. The company was held liable for the gross negligence and want of ordinary care of their servants and agents. The holder of the free ticket in this case had taken the risk of personal injury “from whatever cause.”
The case of Bissell, administratrix, against this same Company, Ibid, 602, shows the same contract, and the determination of the court was the same, that the company was liable for gross negligence, and Justice Smith, who delivered the opinion of the court in the case of Welles v. this Company, 26 Barb., 641, and who concurred in the ruling of this case of Bissell,- thought the verdict in it could be sustained without involving any inconsistency between the two cases, for the reason that Bissell’s case was put on the ground of gross negligence, and that there was no evidence in Welles’ case showing how the collision happened.
The next case is that of Perkins, administratrix, v. this same Company, 24 N. Y., in which it was held, that -a railroad corporation could not, by contract, exempt itself from liability to a gratuitous passenger for damage resulting from its own wilful misconduct, or recklessness, which is equivalent thereto. But it may contract for exemption from liability from any degree of negligence in its servants, other than the board of directors or managers who represent the corporation itself, for all general purposes.
In Welles’ case, as in this, the Hew York courts attempt a distinction between the negligence of the corporation, acting through its president and board of directors, and the negligence of their employees or servants and agents, a distinction which, we confess, we are unable to perceive. All corporations act by and through their agents, for whose, acts, in the line of their business, the corporation appointing them is held liable.
This court has held, that a railroad corporation is liable in an action of trespass for an assault and battery committed by an employee of the corporation on a passenger on the train. St. Louis, Alton and Chicago Railroad Co. v. Dalby, 19 Ill., 353.
In that case we said, in answer to the argument, that as the corporation has no lawful authority to order an unlawful act to be done, or to order a lawful act to be done in an improper way, or so that it shall violate the rights of others, the act, whenever such is the case, becomes the act of the agent and not of the corporation, that if this position was adopted, a corporation could never be held for any affirmative act, for whenever such affirmative act is a violation of the rights of another, the ready and invariable answer would be, that because such act was wrongful, it was, therefore, unlawful, and not authorized by its charter, but the individual act of those who represent it and exercise its functions. The result then would be this: if the act was right and lawful, then it is the company’s; but if it was wrong and not legally justifiable, then it was not the act of the company, which, it would be said, was a stranger to it. The result of the position is, that the company cannot be liable for any trespass, for a trespass is an unlawful act, and no company or corporation can be legitimately empowered to do an unlawful act. Row there are cases to be found, mostly in the Tear Books, where courts ■ have been misled by this sort of reasoning, and held that no corporation can he liable for any trespass. But such never was the rule either of the civil or the common law, as applied to private remedies for such wrongs.
It is admitted that a corporation may commit a trespass on property, then how absurd it is to say, that if the servant of the company throws the passenger’s baggage from the cars, it is the act of the company, hut if he throws off the passenger himself it is not.
This case goes the whole length of holding a corporation responsible for the unlawful acts of its employees or agents, which includes wilful injuries, or injuries resulting from gross negligence.
All the cases cited by appellant admit the validity of the agreement set forth, but confine its operation to cases of ordinary, hut not gross negligence. The same ruling has obtained in the courts of Great Britain. The York, Newcastle and Berwick Railway Co. v. Crisp et al., 78 Eng. C. L., 527; Shaw v. The York and North Midland Railway Co., 66 Ib , 345; Austin et al. v. The Manchester, Sheffield and Lincoln Railway Co., 70 Ib., 453. And by this court, in the case of The Illinois Central Railroad Co. v. Morrison et al., 19 Ill., 136. It was there said the rule established in England and in this country, that railroads have a right to restrict their liability as common carriers by such contracts as may be agreed upon specially, was a good rule, the railroad companies still remaining liable for gross negligence or wilful misfeasance, against which good morals and public policy forbid they should be permitted to stipulate. A reference was made, as authority for this doctrine, to 1 American Eailway Cases, in note 181; Redfield on Railways, 264; 2 Ohio State Rep., 131.
And we believe the rule is now universal in the courts of this country.
All the cases cited by appellant admit that acts of gross negligence are not exempted by the agreement pleaded. The declaration was in case, in three counts, for gross negligence, to which the agreement did not apply, consequently, the court decided correctly in sustaining the demurrer to the pleas, gross negligence not being within the spirit of the contract.
The fourth plea was demurrable, for the reason, that it attempts to confine the negligence complained of to the negligence of the agents and employees of the company, for which the company was responsible, as we have said above.
While we hold this agreement did not exempt the railroad company from the gross negligence of its employees, we are free to say that it does exempt it from all other species or degrees of negligence not denominated gross, or which might have the character of recklessness. For such unavoidable accidents, as will happen to the best managed railroad trains, this agreement would be a perfect immunity to the company. It is not, as appellee’s counsel seems to suppose, a mere notice, like the one in the case of Western Transportation Co. v. Newhall, 24 Ill., 466. In that case, a condition was printed on the back of the bill of lading or receipt for the powder. We held this was but a notice, by which the carrier’s liability could not be restricted even if brought home to the shipper, but that it could be limited by a special contract with the owner of the goods.
The free ticket was a gratuity, and the acceptance and use of it establishes the endorsement thereon as an agreement between the party giving and the party receiving. By using the ticket, he assents to the terms on which it was given, and it becomes, to all intents and purposes, an agreement. In Hewhall’s case there was no agreement, but a mere notice, and ¡Newhall paid for the carriage of his goods.
We look upon this free ticket as a special contract in every sense of those words, and as covering all negligence save those we have specified.
The negligence in this case was found by the jury to have been gross, amounting, as we are inclined to think, to recklessness on the part of the conductor having charge of the train in which appellee was a passenger, consequently the company are not protected by this special contract.
But there is one error of the court below which must reverse this judgment. The defendant’s fifth plea sets up a release of all damages occasioned by the grievances complained of, for a valuable consideration paid by the defendant to the plaintiff.
This plea is a good plea of a release, both in form and substance.
We have looked into the books,- and can find no case wherein it has been held in pleading a release that it should be averred it was under seal. A release, ex vi termini, imports a seal, and it is matter of ' evidence whether it have a seal or not, if a seal be necessary. The plea should have been traversed. The demurrer admits the release for a valuable consideration. But this court said, in Benjamin v. McConnell et al., 4 Gilman, 536, and we repeat here, when a valuable consideration is expressed in a release, or otherwise proved to have passed between the parties, it is totally immaterial whether the instrument is sealed or otherwise. In Ryan v. Dunlap, 17 Ill., 40, this court held that a release of a debt secured by mortgage need not be under seal, a fortiori, it need not be, where prospective damages are released.
The declaration in the first, second and fourth counts avers gross negligence on the part of appellants, whilst the third avers negligence only. Four of the special pleas are to the whole declaration, but they do not answer the charge of gross negligence, consequently the demurrer to them was properly sustained. The appellant will have leave to amend, so as to apply the pleas to the third count, which alleges negligence only, should he desire so to do.
For this error, in sustaining the demurrer to the fifth plea, the judgment must be reversed and the cause remanded.
As to the instructions for appellee, we perceive no inconsistency or error in them.
Judgment reversed.