April 7, 1914. The opinion of the Court was delivered by Action for tort to the person; answer, amongst other things, which plead in bar a contract inter alios; demurrer thereto by plaintiff; demurrer overruled; appeal here from that order, and that is the sole issue.
History: The plaintiff is a colored woman, a cleaner of Pullman cars in the city of Charleston; at the instant such a car was on one of defendant's tracks near the union station, detached; the plaintiff was on her knees in the car scrubbing the floors of it; one of defendant's trains ran into the Pullman and hurt the woman.
This is the plea, not yet the proof.
As a third and complete defense to the action, defendant set up a contract betwixt the plaintiff and the Pullman Company, signed by her, but not by that company.
That contract will be reported, and will, therefore, not be much quoted from herein. It is a work of art, wholly beyond the conception of the ordinary laborer. *Page 412
There are six paragraphs of the contract, and at the end of it the plaintiff declared she had "read and understood every word" of it.
The last and sixth paragraph is that upon which the controversy here turns; and the last six lines of it make the kernel of the case.
The fifth paragraph of the contract seems akin to the sixth paragraph; but the answer pleads the words of the sixth paragraph. They are, in substance, these:
"And I hereby, for myself * * * forever release, acquit and discharge" (the Southern Railway Company) "from all claims for liability of any nature or character whatsoever, on account of any personal injury * * * to me while in said employment" — of the Pullman Company.
We venture to think that a speedier administration of justice would have been achieved had the verdict of a jury been taken on the issuable facts; and had the question of law now made been reserved to sustain or to defeat any verdict which may have been rendered for or against the defendant.
We think there is no warrant for the plaintiff's contention "that the contract in question did not contemplate any such state of facts as in the case at bar." The last six lines of the sixth paragraph are comprehensive enough to include a woman on her knees scrubbing the floor of a car.
It is perhaps best that the issue now made should be made for one circumstanced as she was.
The appellant's counsel frankly states that which is true, that the view of the Circuit Court "is unquestionably sustained by many authorities." The preponderance of decisions is with the respondent; but we venture to think the preponderance of reason is against it.
It is true that persons ought to have, and generally are permitted to have, the right to make their own contracts.
Courts and Judges ought not to interfere thereabout except for paramount reasons, they ought to interfere when *Page 413 such reasons do exist. But in our view, the issue here is not whether the contract shall be ignored, but what is the contract.
There is now no difference of opinion anywhere about the pronouncement that a common carrier may not stipulate for exemption from liability for its negligence. Lockwood v. R.R. Co., 17 Wallace 357.
Thereby, and, therefore, it would not have been lawful for the plaintiff and the defendant to have stipulated that the defendant would not be liable to the plaintiff for the consequences of its negligent act, whereby its train was run into a coach of the Pullman Company standing on tracks in its yards. That was frankly admitted by the respondent's counsel.
Plainly, if the contract here set up is in legal effect and essence of such a character, then it cannot operate to discharge the defendant.
The Courts at the outstart had held that when there exists contract relations betwixt what we shall term an active corporation and a passive corporation, and where both had servants, that the two corporations might not contractbetween themselves to relieve the active corporation from responsibility for hurt to the servants of the passive corporation resulting from the negligence of the active corporation. (Brewer v. N.Y.C.R. R., 124 N.Y. 59,26 N.E. 324, 11 L.R.A. 483, cited in B. O.R.R. v. Voight,176 U.S. 518, 20 S.Ct. 385.)
And upon the ground that the servant was not a party to the contract.
In time there followed in addition to a contract between the two corporations a contract betwixt the servant of the passive corporation and that corporation, to save harmless the active corporation from injuries to the servant of the passive corporation, resulting from the negligence of the active corporation.
Of such is the contract in issue. *Page 414
The first four paragraphs of it have to do exclusively with the relations of the servant with the Pullman Company; the last two paragraphs of it have to do exclusively with the interdependent relations of the servant and the two corporations.
The party for whose benefit the fifth and sixth paragraphs were made is the defendant here. The Pullman Company, if indeed it is a party to the contract, is merely a person in whose name a contract is made for the benefit of another; and the defendant is that other and is the real party in interest; and now and here actually claiming under it.
The fifth paragraph of the contract lends strength to this construction. That paragraph contains two predicates — (1) that Carter (the plaintiff) knows that the Pullman Company operates its cars on the Southern lines and that contracts exist, and are to be made, between the two corporations whereby the Pullman Company agrees to save harmless the Southern Company against liability of Southern Company to Carter, in such cases as the contract may provide; and (2) that Carter ratifies such contracts, and agrees to hold harmless the Pullman Company for all money the Southern Company may have to pay Carter for injury, and the Southern Company may have this contract in defense of a suit against it by Carter.
If the Southern Railway shall lose by this action, then, by the terms of the contract here, and by the terms of the other contract it has with the Pullman Company, which we have not seen, but which is referred to in this contract, it has recourse against the Pullman Company.
We have followed with interest the learned and able argument of the respondent's counsel; but we are of the settled conviction, upon reason, that this contract is none other than that which was proscribed in the Lockwood case; "the voice is Jacob's voice, but the hands are the hands of Esau." *Page 415
It is, therefore, adjudged that the order of the Circuit Court be reversed and the demurrer to the third defense of the answer be sustained.