The opinion of the Court was delivered by
Me. Justice Pope.
This action for damages came on for trial before his Honor, Judge R. C. Watts. The hearing was confined to an oral demurrer to the second affirmative defense set up in the answer, which demurrer was overruled, and from the order of Judge Watts overruling the [154] same, an appeal is now presented to this Court. It will be proper, therefore, to reproduce the pleadings, to the end that our ruling may be properly understood.
The complaint of Willis Johnson against the Charleston and Savannah Railway Company, defendant herein, respectfully showeth: i. That the defendant was at the time hereinafter mentioned and now is a corporation, duly created and existing under the laws of the State aforesaid. 2. That the plaintiff was, on or about the 16th day of November, in the year of our Lord 1896, in the employ of the defendant company as a fireman, and was there actively engaged at work on a train of said defendant company, running between Charleston and Savannah. 3. That while so engaged at Ridgeland, in the county of Beaufort and State aforesaid, as fireman on train proceeding from Savannah to Charleston, under charge and control of Robert Smart, engineer, it became the plaintiff’s duty to stand upon a certain platform on which wood was piled, and from said platform to load the tender with fuel, by throwing sticks of wood therein. That after supplying the tender with wood as aforesaid, on a signal that the engine was about to move, the plaintiff stepped to the edge of the said platform and thence endeavored to step on to the engine. 4. That by reason of the broken and unsound condition of the said platform, which caused the fall of the plaintiff, and the sills on which it rested, the said platform gave way under the weig'ht of the plaintiff, and forcibly precipitated him upon the iron structure of the engine. 5. That the broken and unsound condition of the said platform, which caused the fall of the plaintiff as aforesaid, was the result of the carelessness and negligence of the defendant in not keeping said platform in good, reasonable and safe repair. 6. That by reason of the fall aforesaid, the plaintiff sustained serious wounds and bruises in his arm, side and leg, and also injuries of an internal nature, causing him severe bodily pain and suffering, so that he is not able to perform his accustomed labor.. That he has already expended a considerable amount of money for medicine and medical [155] attendance, and is advised by his physicians that his said -injuries will probably disable him permanently from performing such labor as he was heretofore capiablé of performing, and will continue to cause him pain and require medical attention and medicine for the rest of his life. 7. That by reason of the carelessness and negligence of the defendant, as hereinbefore set forth, the plaintiff has been damaged $10,000. Wherefore, the plaintiff demands judgment against the defendant for the sum of $10,000, and for the costs and disbursements of this action.
The defendant, the Charleston and Savannah Railway Company, answering the complaint herein, says: 1. This defendant admits the allegations contained in the first paragraph of said complaint. 2. This defendant denies the allegations contained in the second, third, fourth, fifth, sixth and seventh paragraphs of said complaint. And by way of affirmative defense to said action, this defendant says: That the injury alleged in said complaint to have been received by the plaintiff, Willis Johnson, was caused by the contributory negligence of the said plaintiff, in not exercising due care and caution in stepping on said engine from said'platform, and that but for said want of care, said injury would not have happened, such contributory negligence on the part of the plaintiff being the primary cause of said injury. And by way of affirmative defense to said action, defendant alleges: That the said plaintiff at the time he claims to have received the alleged injury was a member of the Plant System Relief and Hospital Department. That said Relief and Hospital Department is an organization formed by the Charleston and. Savannah Railway, Savannah, Florida and Western Railway, Alabama Midland., Brunswick and Western, Florida Southern, and other railway companies (which said railway companies comprise the Plant system), for the purpose of establishing and managing a fund for the payment of definite amounts to employees contributing to the fund, who, under the regulations, are entitled thereto when they are disabled by accident or sickness, and to their families in the event of [156] death. The said relief fund is formed from contributions from the employees, and the Plant system, income derived from investments, and appropriations by the Plant system when necessary to make up a deficit. The regulations governing said Relief and Hospital Department require that those who participate in the benefits of the relief fund must be employees in the service of one of the railroad companies comprising said Plant system. This defendant further says that participation in the benefits of said relief fund is based upon the application of the beneficiary, and subject to all the rules and regulations of said relief and hospital department. Defendant further says that on the second day of November, 1896, the plaintiff herein being in the employ of the defendant company, and said company being a member of the Plant system, applied for membership in the said Plant System Relief and Hospital Department, and in said application agreed to be bound by all of the regulations of the relief and hospital department, and in said application further agreed that in consideration of the contributions of the said companies comprising the Plant system to the relief and hospital department, and of the guarantee by them of the payment of the benefits aforesaid, that the acceptance of the benefits from the said relief and hospital department for injury or death should operate as a release of all claims against said company and each of them for damages by reason of such injury or •death. Defendant further says that when plaintiff received the alleged injury, he thereupon became entitled to the benefits coming out of his membership in said relief and hospital department by reason of the injury alleged to have been received by him while in said service. .The said plaintiff thereupon immediately applied to said department for such benefits, and received therefrom payments amounting in all to the sum of $66.50, being the amount due for 133 days at the rate of fifty cents per day, which was the rate to which the plaintiff was entitled as a member of said relief and hospital department. This defendant further says that in accord[157] anee with the regulations of said relief and hospital department, said plaintiff received free medical and surgical attendance from the surgeons of said company, and care and treatment in the said companies’ hospitals free of charge, and the said relief and hospital department did all on its part to be done for and in behalf of the said plaintiff, by virtue of his membership in said department. The said sum of money the said plaintiff duly accepted and receipted for under the regulations of said relief and hospital department, and in accordance therewith, and the said plaintiff, in consideration of the payment to him of the said sums of money, thereupon duly released and forever discharged said defendant company, and each uand every company comprising the Plant system, from all claims and demands for damages, indemnity or other form of compensation he then had, or might or could thereafter have, against any one of the aforesaid companies by reason of said injury, which said receipts and releases were severally signed and sealed and delivered to the said relief and hospital department by the said plaintiff. Wherefore, this defendant alleges that the acceptance of the said benefits from said relief and hospital department for said alleged injury, and the execution of the release aforesaid, operate to release and discharge said defendant company from any and all claims for damages arising in any way out of the injury complained of by said plaintiff in his said complaint.
The plaintiff demurs orally to the second affirmative defense set up in the answer, and moves that the same be dismissed, for the reason that it does not state facts sufficient to constitute a defense, in this, that in said defense it is alleged that the plaintiff had entered into a contract with the defendant whereby it was agreed upon certáin considerations that the defendant should be released from all claims of the plaintiff for damages by reason of accidental injury or death; that such contract is contrary to law and against public policy, and a release thereunder cannot, therefore, be pleaded as a defense to an action for damages caused by the defendant’s [158] negligence. This demurrer was overruled. And his Honor said: “There is no question in my mind that a contract of that kind, whereby a railroad company attempts to- relieve itself of any liability on account of negligence, is contrary to public policy, and where the party enters into the contract beforehand, he would not be estopped from bringing his action for damages against the railroad company. It seems in this case that the plaintiff had entered into that agreement, relieving the railroad company, before he was injured. After he was injured, he was put to his election as to whether he. would sue the railroad company, or go ahead and carry out the contract and receive the benefits of that contract. It seems to me that the decision in the case of Price against-the railroad company would control in this case, and I think the plaintiff, having elected to receive the benefits under that contract, is now estopped from bringing his action against the railroad company, from suing the railroad company here for damages, and I overrule the demurrer.”
Counsel for the plaintiff excepted to the ruling, and gave notice of intention to appeal. I. Because his Honor erred in holding that the said second affirmative defense set up in the answer contained allegations of fact sufficient to constitute a defense. II. Because his Honor erred in not holding that a contract, whereby a railroad corporation seeks immunity from damages caused by the negligence of itself or its servants, is null and void under the Constitution of the State. III. Because his Honor erred in not holding that such a contract is null and void because it is against public policy. IV. Because his Honor erred in holding that such a contract may properly be placed as a defense in an action brought by an employee against a railroad company for damages caused by said company or its servants. V. Because his Honor erred in holding that even if such a contract were void, the receiving of money or other consideration thereunder, after the receipt of the injury, was such an act as would bar recovery of damages.
[159] 1 2 [158] It is apparent from the text of Judge Watts’ decision, that [159] he held that the contract entered into by and between the plaintiff and the defendant, as a member of the Plant system, was void as against public policy, and from this decision of Judge Watts there is no appeal, and hence it is the law of this case. Plowever, the Circuit Judge, as he thought under the decision of this Court in the case of Price v. R. R. Co., 33 S. C., 556, held that the subsequent receipt of Johnson to the defendant company would estop Johnson from bringing this action. We fear the case of Price v. R. R. Co., supra, has been given a force that it was not intended that decision to possess. In the case cited, Price, while an employee of the railroad company, was injured in February, 1887, by the alleged negligence of the railroad company, and on the fifth day of August of the same year (1887), executed a release to said company for a valuable consideration, whereby he discharged such company from any claim, demand or liability for payment of any other or further sum or sums of money, for or on account of his injury while in their service. Price died on the day of November, 1887. His wife, as the administratrix of his estate, brought an action against the railway company for damages under what is known as the Lord Campbell Act. On trial, the defendant railway company offered to prove under the plea in its answer that Price, the intestate, had in his lifetime released any right of action for a valuable consideration for his injury by the railroad company. The Circuit Judge denied the proof, whereupon the railroad company appealed to this Court, and it was here decided that the Circuit Judge was in error, because the right of action under Lord Campbell’s Act (sections 2183 to 2186 of General Statutes) was first in the party injured, which right of action survived his death to his administrator, and that as Price was competent to deal with his right of action in his lifetime, and had settled with the railroad company, therefore, such settlement would estop his administratrix, unless the receipt was executed under fraud or duress. There was no allegation there that the contract not to sue was against a sound public [160] policy, or that the receipt .Price executed was in accordance with and as a part of such illegal contract. So we do not think the case of Price v. R. R. Co. is decisive of this case. We have never had a case in our Courts before where this question was considered. There have been such in other Courts of this country, where the decisions have been different — some upholding the receipt and, indeed, the contract as binding, as for example: In the State of Pennsylvania, in the case of Johnson v. Philadelphia R. R. Co., 29 Atl. Rep., 854; Graft v. Baltimore and Ohio R. R. Co., 8 Atl., Rep., 206; Fuller v. Baltimore and Ohio Employee's Relief Association, 10 Atl. Rep., 237; also, in the State of Maryland, see Spitze v. B. & O. R. R. Co., 23 Atl. Rep., 307; also, in the State of Nebraska, see Donald v. Chicago, B. & Q. R. R. Co., 61 N. West., 971; also, State of Iowa, see Chicago, B. & Q. R. R. Co. v. Bell, 62 N. W., 314; also, in the State of Indiana, see Pittsburg, C. & C. St. L. Ry. Co. v. Cox, 45 N. E., 641; also, in Ohio, Eckman v. Chicago B. & Q. R. Co., 48 N. E., 496; also, in Illinois, see Owens v. B. & O. R. Co., 35 Fed. Rep., 715; also, the State of West Virginia — the only case where the Court has refused to sustain the question is that of Miller v. C. B. & Q. R. Co., 65 Fed. Rep., 305, and s. c., 76 Fed. Rep., 439. It seems to us that, when analyzed, the proposition of the defendant railway companjr is as to either or both of these matters: first, a party can contract to relieve a railway company from the negligence of such railway company; or second, a party not being able to- contract with a railway company as against its negligence, yet by the acceptance of a benefit under such contract, may be estopped thereby from suing the railway company for its negligence. As to the first position, we say unhesitatingly that o-ur decisions uniformly hold that one cannot make a valid contract to- free a railway company from negligence. Swindler v. Haillard and Brooks, 2 Rich., 286; Baker v. Brinson, 9 Rich., 202; Wallingford and Russell v. Railroad Co., 26 S. C., 258. But apart from our decisions, the new Constitution of this State, [161] adopted in the year 1895, in article IX., sec. 15, provides: “Every employee of any railroad corporation shall have the same rights and remedies for any injury suffered by him from the acts or omissions of said corporation, or its employees, as are allowed by law to other persons, not employees, when the injury results from the negligence of a superior agent or officer, or of a person having a right to control or direct the services of a party injured, and also when the injury results from the negligence of a fellow-servant engaged in another department of labor from that of the party'injured, or of a fellow-servant on another train of cars, or one engaged about a different piece of work. * * * Any contract or agreement, expressed or implied, made by any employee to waive the benefit of this section, shall be null and void, and this section shall not be construed ho deprive any employee of a corporation, or his legal or personal representative, of any remedy or right that he now has by the law of the land” (italics ours). One of the results of this provision of the Constitution is that the employees of a railway corporation are placed upon the same plane with all other persons in any case of injury which results from negligence of such railway company. This being so, no' contract by which an employee binds himself to forego' an action, by reason of negligence, against a railway company, is valid. It is not only against public policy, but is forbidden by the Constitution.
Now as to the second point. It seems to us that the language in the last part of section 15, 'article IX., of our Constitution, forbids any agreement by an employee to waive the benefits of this section. But if this were not so, still, as the original contract to release the railway from the liability for its negligence was void, any attempt by this employee to ratify such void contract is a nullity. It is needless to prolong this discussion or to cite the numerous authorities bearing on this matter. 28 A. & E. Enc., 473, puts the doctrine thus: “A void act, as defined in the later cases and by approved authorities, is one which is entirely null, not binding [162] on either party, and not susceptible of ratification” (italics ours). We will not undertake to enlarge upon the plans of the Plant system as to this protective association. It has some admirable points, but is fatally defective in others.
My opinion is that the judgment of'this Court should be reversed, but inasmuch as the Justices are evenly divided in opinion, under our Constitution, the judgment of the Circuit Court stands affirmed.