(dissenting.) — I am of the opinion that the court erred in sustaining the demurrer to the amended plea, setting up the defense based upon the relief department contract. I do not think said contract is void, either on the ground of public policy, or because in contravention of our statute, or for want of mutuality or a valid consideration therefor. It will be seen, therefore, that in some things I am- in accord with the majority or leading opinion prepared by the Chief Justice and concurred in by Justices Cockrell and Whitfield, while I do not agree to -other conclusions reached by them in said opinion. I shall state wherein I think the opinion referred to is -erroneous.
I desire now to direct attention to that part of the majority opinion which commences as follows: “We come now to the next contention of plaintiff, that such a contract is void because in contravention of our statute.” From this subdivision I will quote at length that part of the opinion which I will discuss now, so that, having it before us, we may more easily and conveniently refer t-o it. I will put in parentheses those passages or sentences of the opinion disapproved of by me, as being incorrect statements of the law. Leaving out the sentences put in- parentheses I have no special objection to the opinion as quoted below. In my opinion the sentences in parentheses not only state the law incorrectly, but contradict the -other portion of the quotation not in parentheses. The majority opinion says:
*434“Suppose there had been no contract and the employe, after the occurrence of the injury, had executed a valid release by way of compromise and full settlement of all claims for damages he then had against the railroad company for damages, in the absence of any fraud, imposition or deception, could its validity be called in question? Have not parties the right to compromise and settle any claims, whether arising ex contractu or ex delicto, without recourse to litigation, and does not the policy of the law favor such settlements? If this be true, then how could the fact that the employe, prior to the injury, had entered into a contract, by which he agreed, in the event of the happening of an injury to him, he would, after its occurrence, make his election either to proceed in an action at law against his employer for damages or to accept the benefits provided by the relief department, vitiate or impair a valid release so executed by such employe, after he had made his election to accept such benefits? In other words, would not a release, executed under such circumstances, be just as valid and binding as though there had been no pre-contract ? We see no reason why it would not. (This being so, the contract can be ignored and disregarded.) In either case it seems to us that such a release founded upon a valid consideration could be successfully pleaded in bar as a defense to any action which such employe might institute, (without reference to the contract,) for it would be the release in both cases which would constitute the defense. This being true, all.of the cited cases in which releases were executed subsequent to the injury would stand in a class by themselves. This distinction is recognized by the court of appeals for the District of Columbia in Brown v. B. & O. R. Co., supra, though it seems to have been lost sight of by some of the other courts. Of course, *435where such release was executed under seal, the seal would import a consideration. If it be further true that ‘it is not the signing of the contract but the acceptance of benefits after the accident that constitutes the release,’ if, as a matter of fact, the employe had made his election and had accepted such benefits, why could not this be successfully pleaded as a defense, whether a formal release had been executed subsequent to the injury or not? We think the supreme court of Pennsylvania is right in its utterance in Ringle v. Penna. R. Co., supra: ‘In the present case there is an additional agreement that the plaintiff shall execute such further instrument as may be necessary formally to evidence such acquittance,’ and it is argued that no such release has been executed by plaintiff. But it is not necessary that it should be. The acceptance o(f benefits is the substance of the release, and the agreement for a further instrument is by its express terms a mere formality for convenience of evidence.’ And where, as in the instant case, so far as is disclosed by the plea, there was no agreement in the contract to execute any further instrument, whether’ release, receipt or acquittance, it makes no difference, for it would be but a mere matter of evidence after all. If the •plaintiff had accepted such benefits and the same be Weill and sufficiently pleaded as a defense, iit woulid constitute a bar to the action. We fail to see wherein the contract in question construed as not effecting a valid release, in any way contravenes our statute. As we have already seen, it is not the making or signing of a contract which estops the plaintiff from bringing and maintaining his action, for, if that were true, it would undoubtedly be in contravention of our statute, for the reason that it would restrict the liability of the defendant. It is the release, whether formally executed *436or not, or whether executed in pursuance of a prior fcontract or not, that prevents the maintenance of the action. But in order to constitute a valid release, there must be a valid consideration therefor. In order to hold the plaintiff barred from, his action by the acceptance of benefits, which constitute a release, such benefits must have flowed from the defendant either directly or indirectly. In other words, when a release is pleaded as a defense, it must plainly be shown by the plea that the defendant parted with something of value in consideration of the plaintiff releasing it from liability. (To hold that the guaranty of the defendant or other provisions of the contract as set up in the plea in the instant case constitute a sufficient consideration for the release would be in effect to give a construction and an effect to the contract that restricts the liability of the defendant, and therefore would make it violative of our statute. To prevent the statute against contracts restricting liability from avoiding the plea, the plea must be read as setting up an independent release, without reference to the original contract; if the antecedent contract is necessary to the validity of the release, the joinder of the release with that ‘body of death’ will prove fatal.)”
The majority opinion, in the quotation given above, holds that the contract set up in' 'the plea in the instant case does not restrict the liability of the defendant and is not in contravention of our statute. The language of the opinion is: “We fail to see wherein the contract in question, considered as not effecting a valid release, in any way contravenes our statute.” I agree to this conclusion fully. The contract, the'signing or making thereof, does not effect the release of the liability of the defendant company for damages. The acceptance of benefits by the plaintiff, upon his own election, after the accident or injury, is the substance of the release, or *437operates as a release of the defendant. The majority opinion enunciates this doctrine and I concur therein. Thus far we are together, and, if none of us depart therefrom', we will remain together to the end. But, I respectfully submit, the majority opinion departs from this doctrine^ in the following statement: “To hold that the guaranty of the defendant or other provisions of the contract as set up in the plea in the instant case constitute a sufficient consideration for the release would' be in effect to give a construction and an effect to the contract that restricts the liability of the defendant.” This statement is confusing and erroneous. The guaranty of the defendant and other provisions of the contract whereby the defendant pays all the operating expenses of the relief department etc. etc., constitute a sufficient consideration to- support such contract. Chicago, B. & Q. R. Co. v. Miller, 76 Fed. Rep. 439, and authorities cited. The aforesaid consideration is an element of the contract. If the contract, which includes the consideration, is not in contravention of the statute, how can this consideration be construed as a consideration for the release so as to give a construction to the contract that restricts the liability of the defendant? It is passing strange.
In Ringle v. Penna. R. R., 164 Pa. St. 529, 30 Atl. Rep. 492, quoted with approval in that part of the majority opinion copied above, the court said: “It is further argued that as the contract is between the relief association and the plaintiff and no evidence that the railroad company defendant has in fact paid anything into the treasury of the association there is no consideration to support a release to the railroad company. It is not however worth while to discuss whether the defendant is in a position to take advantage of a consideration moving from another party but for its benefit, as a *438consideration from, the defendant itself is abundant. As a member of the association it has assumed obligations to take charge of the administration, and to pay all the operating expenses, to take care of the funds, and to be responsible for their safe keeping, to guarantee the obligations of the association, and to make appropriations to supply any deficiencies. These would be ample even if the amount of the consideration could be enquired into.” And in the Miller case, 76 Fed. Rep. 439, so much relied upon in the majority opinion, Judge Thayer said: “I't also appears to be agreed that the obligation assumed by' the employer to maintain and support such association by contributing the funds necessary for that purpose creates a privity of contract between the employer and me members of the association, and at the same time furnishes a sufficient consideration to support such contract.”
In my opinion the majority opinion again departs from its former proper holding by saying: “To prevent the statute against contracts restricting liability from avoiding the plea, the plea must be read as setting up an independent release without reference to the original .contract.” I thought it was agreed that the execution of an independent release was unnecessary — that the original or antecedent contract did not effect the release,, but that the acceptance of the benefits under the contract effected or operated a release, and that the execution of a new or independent release being unnecessary, the original or antecedent contract with the election by the plaintiff after the accident to accept the benefits under the contract was a contract that does not restrict the liability of the defendant, and not in contravention of our statute. That being true, I think that, to prevent the statute against contracts restricting liability from avoiding the plea, the plea must not be read as setting up an inde*439pendent release, without reference to the original contract.
Again the majority opinion departs from the doctrine that I thought had been settled in that opinion by saying: “If the antecedent contract is( necessary to the validity of the release, the joinder of the release with that body of death will prove fatal.” We should rather say, in accordance with what has already been said, that if the antecedent contract, zuithout the election by plairutiff, after his injury, releases the defendant company, then the contract does restrict the liability of the defendant, and is in contravention of our statute; but, if the election by plaintiff to so accept the benefits is necessary to the validity of the contract, then the contract does not restrict the liability of the defendant, because it is not the contract but the election that operates or' works the release, and a plea setting up the antecedent contract and the election by the plaintiff to accept the benefits is good. A contract which would release the defendant company independently of an election by the plaintiff, after the injury, to accept the benefits in lieu of damages would indeed be a “body of death;” but the election by the plaintiff after the accident or injury, to accept the benefits, puts life into the contract The election by the plaintiff, after his injury, to accept the benefits, and his agreement in the antecedent contract that his election to so receive the benefits in lieu of all other claims against the defendant company, become a living, breathing, valid, binding contract, not restricting the liability of the defendant in contravention of our statute, “not a stipulation for the future, but settling for the past,” a contract that cannot be ignored or disregarded by a court whose only mission is to declare the law as it is, and to guard and enforce the rights of parties as fixed by themselves in contracts not in contravention of the law.
*440I will refer again to what some of the courts mentioned in the majority opinion have to say. In this way, we will keep our bearings. The majority opinion says: “■We call attention to the fact that the closing words of the Iowa statute, ‘and no contract which restricts such liability shall be legal or binding,’ are identical with the closing words of our statute, section 3 of Chapter 4071, Laws of 1891, which words are now before us for construction.” Again, the majority opinion says: “As we have already seen, the Iowa statute is couched in ipsissimis verbis of our statute, which we are now considering.” It will be interesting and profitable, then, to know what the Iowa court has to say about the. validity of a relief department contract similar to the one in. the instant case and 'the effect thereon of the Iowa statute, which the majority opinion has twice told us is just like our statute. In Donald v. Chicago, B. & Q. Ry. Co., 93 Iowa 284, 61 N. W. Rep. 971, the court says: “It is not a contract by which the company can escape a legal liability for its torts. The way is entirely open for the prosecution of any claim for negligence against the company, and damages are obtainable to the full amount of the injuries sustained. There is no phase of public policy that prohibits any person agreeing that such full compensation, or whatever he may 'accept as a compensation, shall be in lieu of any claim he might otherwise have against the relief fund. It seems to be the thought, inducing the contract, that the company shall not be compelled to pay damages for the injury sustained, and also to contribute to a fund for additional relief. Such an agreement seems not only not against public policy, but seems not inequitable. * * * It is said that the contract is contrary to the express- terms of code, section 1307, which provides that any contract restricting the liabilities of railway companies for the negligence or mis*441management of their employes in connection with the operation of railways shall not be legal or binding. But we have said, and the authorities cited hold, that such contracts are in no way a restriction on such liability. The employe, when such liability .arises, has his choice to take the damages, as he may be able to establish them, or the benefit from the association. The company is liable for either, at the election of the employe, but not for both. Such facts do not amount to a restriction on liability.” To show how much, the contract before us in the instant case is like the contract involved in the Donald case, I will quote again from the opinion in that case. “The fund is obtained by monthly assessments of its members, and the amount is deducted from the monthly payments. Such amounts as are not raised from these assessments are made up by the company from its earnings, in the way of interest on the monthly balances of the relief department. The incidental expenses of the department — incident to the conduct of its business — are paid by the railway company. In case the fund of the relief department is not sufficient, the company pays all benefits due, in full.”
The majority opinion, in speaking of certain Georgia cases mentioned therein, has this to say: “We have read these cases with care and interest. The contract discussed therein is quite similar to the one in the instant case. As was said in the case of Petty v. Brunswick & W. Railway Co., 109 Ga. 666, text 671, 35 S. E. Rep. 82, after quoting the section of the Georgia Code and reciting the contention of plaintiff that the contract was ‘contrary to public policy, in that it evidenced an attempt to exempt the company from liability for negligence‘As should be readily apparent, the weakness of this position lies in the fact that it is based upon an entire misconception of the meaning and effect of the contract *442thus assailed. It did not, as claimed, in any of its terms or conditions stipulate that the defendant company should be absolved from the legal consequences of its own negligence or that of its servants. On the contrary, it merely provided an additional remedy to that given by law to an employee who might suffer injury by reason of the negligence, actual or imputable, of his master. The latter remedy was left intact, undisturbed and unimpaired, and the injured employee might, or might not, at his option, take advantage thereof. True he could not avail himself of both, but was put upon his voluntary election as to which of the two he would pursue. This feature of the contract is not only technically permissible, but is in perfect harmony and .accord with that fundamental rule of law, based upon sound and sensible considerations of public policy, which contemplates that indemnity, rather than the mere chance of speculative gain should be the primordial purpose of every contract designed to afford protection to a party thereto in the event he sustains loss or injury. Only in case the injured employee commits an error of judgment in determining whether he will accept benefits, which, though comparatively small, are yet sure and easily within his grasp, or will hazard the less certain result of a suit for damages, can he possibly fail to realize all the fruits of every right given him by law. That it is conceivable he may make such mistake does not render the contract essentially and inherently vicious, and therefore opposed to public policy.’ ” In commenting upon the above quotation from, the Petty case, the majority opinion says: “We are impressed with the clearness and cogency of this reasoning and that impression is intensified when we find that the courts of Pennsylvania, Ohio, New Jersey, Iowa, Indiana, Nebraska, Maryland, Illinois and Alabama, as *443well as several of the Federal courts have reached a like conclusion.”
In the case of Pittsburg, C., C. & St. L. R. Co., v. Moore, 152 Ind. 345, 53 N. E. Rep. 290, in considering the effect upon a relief department contract of the Indiana statute inhibiting the making of any contract exonerating a railroad company from; a future liability to1 an employe, the court said: “In Johnson v. Philadelphia etc. R. Co., 163 Pa. St. 127, 29 Atl. Rep. 854, the court, having under review a contract in all material respects, like the one here, says: ‘But even in cases of injury through the company’s negligence there is no waiver of any right of action that the person injured may thereafter be entitled to. It is not the signing of the contract but the acceptance of benefits after the accident that constitutes the release. The injured party, therefore, is not stipulating for the future, but settling for the past; he is not agreeing to exempt the company from liability for negligence, but accepting compensation for an injury already caused thereby.’
“In the case of Otis v. Pennsylvania Co., 71 Fed. 136, the contract considered was identical with the one pleaded in this answer, and concerning it Baker, J., says: ‘As a general proposition, it is unquestionably true that a railroad company cannot relieve itself from responsibility to an employe for an injury resulting from its own negligence by any contract entered into for that purpose before the happening of the injury, and, if the contract under consideration is of that character, it must be held to be invalid. But upon a careful examination it will be seen that it contains no stipulation that the plaintiff should not be at liberty to bring an action for damages in case he sustained an injury through negligence of the defendant. He still had as perfect a right to sue for his injury as though the contract 'had never *444been entered into. Before the contract was entered into, ■his right of action for an injury resulting from the defendant’s negligence was limited to a suit for the recovery of damages therefor. By the contract he was given an election either to receive the benefits stipulated for, or to waive his right to the benefits, and pursue his remedy at law. He voluntarily agreed that, when an injury happened to him, he would then determine whether he would then accept the benefits secured by the contract, or waive them and retain his right of action for damages.’ In Shaver v. Pennsylvania Co., 71 Fed. 93, Ricks, J., reached the same conclusion from the consideration of a similar contract.
“Again in Pittsburg, etc. R. Co. v. Cox, 55 Ohio St. 497, 45 N. E. 641, 35 L. R. A. 507, the supreme court of Ohio expressed its view of a similar contract in the following words: ‘This claim arises, we think, from a misconception of the contract; in assuming that, by the contract, the employe releases some future right against the company. On a previous page we have undertaken to show that such is not the case; that there is no waiver of any cause of action which the employe may be,entitled to, and that it is not the signing of the contract but the acceptance of benefits after accident, that constitutes the release. When that occurs he is not stipulating for the future; he is but settling for the past. He accepts compensation for injury already received.’ The same view is 'held by the supreme 'court of Iowa, announced in Donald v. Chicago, etc. R. Co., 93 Iowa 284, 61 N. W. 971, 33 L. R. A. 492, and by the supreme court of Maryland in Fuller v. Baltimore etc. Assn., 67 Md. 433, 10 Atl. 237, and by the supreme court of Nebraska in Chicago etc. R. Co. v. Curtis, 51 Neb. 442, 71 N. W. 42; and to the same effect is the case of Maine v. Chicago *445etc. R. Co. (Iowa), 70 N. W. 630, and that of Lease v. Pennsylvania Co., 10 Ind. App. 47.
“The contract forbidden by the statute is one relieving the company from liability for the future negligence of itself and employes. The contract pleaded does not provide that the company shall be relieved from liability. It expressly recognizes that enforceable liability may arise, and only stipulates that, if the employe shall prosecute a suit against the company to final judgment, he shall forfeit his right to the relief fund and, if he accepts compensation from the relief fund, he shall thereby forfeit his right of action against the company. It is nothing more nor less than a contract for a choice between sources of compensation, where but a single one existed, and it is the final choice — the acceptance of one against the other' — that gives validity to the transaction.
“But appellee contends that some of the cases cited above arose in states having no similar statute, and that the question of the railroads contractual relief from liability was propounded as being against public policy, and not as in violation of a statute, and hence should not be accepted as authority. The answer to this is that the statute also rests upon public impolicy, or it has nothing whatever to stand upon. * * *
“We are mindful that this court in the case of Pittsburg etc. R. Co. v. Montgomery, ante, held a view of this question at variance with the opinion 'herein expressed, and which, after a more thorough examination of the decided cases, we find to be in conflict with the very decided weight of authority. Indeed the cases seem now to be in substantial accord.
“The case of Miller v. Chicago etc. R. Co., 65 Fed. 305, the only case relied on as authority upon this question was subsequently appealed to the United States circuit court of appeals, eighth district, and the doctrine of *446the lower court inferentially disapproved, by the court announcing, in substance, that the authorities were all the other way, though the question here was not decided, as not being necessary to a disposition of the case. Chicago etc. R. Co. v. Miller, 22 C. C. A. 264. So far as the case of Pittsburgh etc. R. Co. v. Montgomery, supra, is in conflict with the opinion herein announced, the same is disapproved.”
But let us continue our examination of the opinion prepared by the chief justice. That opinion says: “It seems to us that the plea is defective in many respects. First, it fails to show what amount of benefit per week ‘for a period not longer -than fifty-two weeks,’ plaintiff was entitled to receive.” I do not think the plea defective in this respect. As I understand the plea, it shows that the plaintiff was entitled to receive for each day of his disability fifty cents for a period not longer than fifty-two weeks, and twenty-five cents thereafter during the continuance of his disability, but the plea expressly says that the sum of $8.50 “was the benefit rate to which the plaintiff was entitled as a member, under the rules and regulations of said relief department.”
It will be sufficient, as to this allegation of the plea, that the plea allege the amount due the plaintiff as benefits under the rules and regulations of the relief department, and to allege further that this sum was in fact paid to the plaintiff, and this the plea does. There was no motion by plaintiff in the court below for a compulsory amendment of the plea in this respect under section 1043 of the Revised Statutes of 1892. This objection to the plea was not made a ground of demurrer. But even if this objection had 'been made a ground of demurrer in the court below, it is not noticed or argued here by, counsel, and will be regarded as abandoned. Jordan v. Sayre, 24 Fla. 1, 3 South. Rep. 329. In ad*447dition to this, even counsel for defendant in error seem to have no difficulty in understanding from the plea that the plaintiff was entitled to receive fifty cents per day for a period not longer than fifty-two weeks, and twenty-five cents a day thereafter during "his disability. On page 40 of brief for defendant in error the contract is spoken of as binding defendant in error to accept the “sum of $15.00 per month for 52 weeks and $7.50 per month afterwards for the balance of his life,” and similar references are made on pag'es 40 1-2, 41, 42 and 66 of same brief. If the plea must be read as setting up an independent release, without reference to- the original contract, the objections made here, being to a part of what is said to be “that body of death,” ought not to trouble us.
Second, it is said that the plea “fails to show what sums of money, if any, the defendant company had theretofore contributed out of its own funds to the support of the relief association.” Let me first ask, if this alleged 'defect in the plea is pointed out in order to- show that there is no consideration for the contract? The words used in pointing' out this alleged defect in the plea before us are quoted from the opinion by Judge Thayer in the Miller case, 76 Fed. Rep. 439, at the top of page 442. Why did Judge Thayer use these words, and point out thereby this defect in the plea then being considered by him in the Miller case? Judge Ti-iayer was using those words because he was showing that the contract before him was not supported by a valid consideration. But because the plea in the Miller case was defective in this respect, I cannot say the plea in the instant case is likewise defective; for I cannot find wherein the plea in the instant case is defective in this respect. The plea in the instant case does not “fail to show what sums of money, if any, the defendant company had thereto*448fore contributed out of its own funds to the support of the relief association.” The plea shows that the defendant company'was “to supply the necessary facilities for conducting the business of 'the relief department, and to pay all the operating expenses thereof, and has, in pursuance thereof complied with, performed and discharged all of said obligations before mentioned upon the part of said defendant company to be complied with, performed and discharged, and has also furnished the necessary hospital building's and furniture, bedding, instruments, utensils, appliances, surgeons and nurses for the care of employes who become disabled by injuries, sickness or otherwise.” The demurrer to this plea admits all this to be true. According to the contract, that was the way, and these were the things for which, the defendant company was to- contribute money to the support of the relief department out of its own funds, this was the obligation assumed by the defendant company, and Judge Thayer said, in the Miller case, that “the obligation assumed by the employer to maintain and support such association by contributing the funds necessary for that purpose creates a privity of contract between the employer and all the members of the association, and at the same time furnishes a sufficient consideration to support such contract.”
Third, the majority opinion holds that the plea is defective for the further reason, that “it fails ‘to show what other beneficial acts, if any, the defendant company has done and performed toward the maintenance of the association/ further than that the defendant company assumed general charge of the department and guaranteed the fulfillment of its obligations, and has taken charge thereof continuously and has the custody of the moneys belonging to the relief fund, and has become responsible for the safe keeping of said fund, and guar*449anteed to pay into the fund interest at the rate of 4 per cent, per annum on monthly balances in its hands, and to advance from its own funds money to pay benefits when the amount contributed by the members, with interest and other income is not sufficient to pay benefits as they become due, and to supply the necessary facilities for conducting the business of the department, and to pay all the operating expenses thereof, and has in pursuance thereof complied with, performed and discharged all of said obligations before mentioned upon the part of said defendant company to be complied with, performed and discharged, and has also furnished the necessary hospital buildings and furniture, bedding, instruments, appliances, surgeons and nurses for the care of employes who become disabled by injuries, sickness or otherwise,’ whatever all this may mean.” “All this” means that the defendant company has done and performed beneficial acts that have been held by many courts to be a sufficient consideration to support the contract before us, as I understand the authorities.
I do not think these allegations, these beneficial acts done and performed by the defendant company as stated in the plea can be dismissed with the dash of the pen. In this connection let me quote what Judge Thayer said in the Miller case: “with reference to the alleged error, it is to 'be observed that it has been held in several considered cases that if a railroad company organizes a relief association for the special benefit of its injured, sick and disabled employes, pays the incidental expenses of such association, acts as its treasurer or custodian'of its funds, and enters into a binding obligation to support and maintain the association by paying out of its own funds such sums to discharge the obligations of the association as the assessments levied upon the members of the association are inadequate to pay, such an. associa*450tion on admitting an employe of the railroad company to membership, may lawfully stipulate that, in event of an injury being sustained by him, the acceptance of benefits from the association shall operate as a relinquishment of any right of action which the employe may have against the railroad company in consequence of the injury, and that the stipulation so made inures to the benefit of the railroad company and constitutes a legal defense to a suit brought against it by the injured employe, if the latter accepts benefits from the association.” And upon the proposition that such obligations furnish a sufficient consideration to support such a contract, he cites Leas v. Pennsylvania Co. (Ind. App.) 37 N. E. 423, Johnson v. Railroad Co. (Pa. Sup.) 29 Atl. 854; Donald v. Railroad Co. (Iowa) 61 N. W. 971; Railroad Co. v. Bell, 44 Neb. 44, 62 N. W. 314; Fuller v. Relief Ass’n, 67 Md. 433, 10 Atl. Rep. 237, State v. Baltimore & O. R. Co., 36 Fed. 655, Owens v. Railroad Co. 35 Fed. 715. The words used in the majority opinion in pointing out this third defect, and found in quotation marks in the sentence: it fails “to show what other beneficial acts, if any, the defendant company had done and performed toward the maintenance of the association” is another quotation from: Judge Thayer, another stricture upon the plea before him:, which does not apply to the plea before us. For the plea being considered by Judge Thayer did fail to show what' other beneficial acts, if any, the defendant company had done and performed toward the maintenance of the association, while the plea before us, in my opinion, does allege “all this.” Because the plea before Judge Thayer was defective in this respect, I cannot say the plea in the instant case is likewise so defective, when it is not so defective, as I think.
The majority opinion says : “In fine there is a striking similarity in several respects in the defects in this *451plea and those pointed out by the United States circuit court of appeals and the Colorado supreme court in the pleas filed in those cases.” With great respect I must say that there is a striking similarity in several respects in the majority opinion in pointing out alleged defects in the plea before us and the opinions in the two cases just mentioned; 'but I cannot see any similarity whatever between the defects in this plea and those pointed out in the Miller case, 76 Fed. Rep. 439, and the Colorado case, Chicago, B. & Q. R. Co. v. McGraw, 22 Colo. 363, text 371, 45 Pac. Rep. 383. The entire failure of the plea in the Miller case to allege the doing of the beneficial acts already mentioned by the railroad company, such as the payment of the operating or incidental expenses of the association, etc., which Judge Thayer said furnish a sufficient consideration to support such contract which contract constitutes a legal defense to the suit brought by the injured employe, was the very reason causing Judge Thayer to say: “The plea further failed to show what sums of money, if any, the defendant company had theretofore contributed out of its own funds to the support of the relief association. It also failed to show what other beneficial acts, if any, the defendant company had done and performed towards the maintenance of the association.” But these matters have been pleaded in the instant case. I can very well see the truth of the following statement made in the reply brief by counsel for plaintiff in error: “The court will see, upon reading the plea in the Miller case above quoted and the plea filed in this case, that counsel for plaintiff in error had the decision in the Miller case before him when he prepared the plea for the plaintiff in error in this case, and covered and met every objection that was offered to the plea in the Miller case.”
So far as the Colorado case, Chicago, B. & Q. R. R. *452Co. v. McGraw, is concerned, the plea only set up that the plaintiff, being a member of the relief department, “had promised and agreed to and with the ' company, in consideration of certain amounts to be paid by the said company for the maintenance of the relief department,” but the plea in that case failed to state any amounts and failed to allege any beneficial acts done by the defendant company such as are alleged in the plea in the instant case. The plea in the McGraw case also failed to state the amount of benefits plaintiff had received, while the plea in the instant case alleges that the plaintiff elected to receive benefits and that he received the sum- of $8.50, which was the benefit rate to- which the plaintiff was entitled, under the rules and regulations of the relief department, and the plea also shows the nature of the hospital treatment received by plaintiff and the amounts of money expended therefor. The plea in the instant case has fully supplied both of the omissions maue in the McGraw case from Colorado. I think the defenses afforded by the relief department contract have been well pleaded in 'the instant case, and the court declared in the McGraw Colorado case that such' defenses if well pleaded are good. And the.majority opinion in the quotation heretofore given, said: “If the plaintiff had accepted such benefits and the same be well and sufficiently pleaded as a defense, it would constitute a bar to the action.” And the same McGraw Colorado- case shows how the “relief defenses” should be pleaded. In speaking of the defense defectively pleaded in the Mcgraw Colorado case, the court said: “In case the defendant- desires to interpose as a defense a contract with ■the plaintiffs, showing that in consideration of his receiving certain benefits from a relief association, composed of the defendant and its employes, the nature, character and objects of such association should be set *453forth, as well as the amount and character of the benefits accruing to the plaintiff therefor, showing that the same have either been paid, or that there is an obligation for their discharge resting upon some organization, individual or association.” I think that the plea here complies fully with these requirements.
Again, the majority opinion says : “One thing, however, does plainly appear, all of these amounts, by whomsoever the money may have been furnished were deducted from the benefits coming to the plaintiff ‘under the rules and regulations of said relief department.’ ” This thing may “plainly appear” from the plea in the Miller case, but it does not plainly appear to me from the plea in the instant case. I have read the plea carefully, and I find that the only place where the words “under the rules and regulations of said relief department” occur, just as they are arranged and given here, is in that part of the plea where it is alleged that there were paid by the plaintiff the amount of $8.50, “which was the benefit rate to which the plaintiff was entitled as a member under the rules and regulations o'f said relief department.” It does not seem to me that this statement in the plea can be made to convey the idea that “these amounts, by whomsoever the money may ’have been furnished was deducted from the benefits coming to plaintiff ‘under the rules and regulations of said relief department.’ ”
Again, the majority opinion says: “There is no direct averment in the entire plea that the defendant provided from its own means any of the benefits received by the plaintiff as the consideration for the release. The obligations of the defendant under the contract set up1 in the plea cannot be regarded as a consideration for the release, for, as we have already seen, that would give to the contract an effect which is void under the statute.” This statement seems to be in direct conflict with the *454Iowa cases, and the majority .opinion twice called “attention to the fact that the closing words of the Iowa statute, 'and no contract which restricts such liability shall be legal or binding/ are identical with the closing words of our statute, section 3 of chapter 4071, Laws of 1891, which words are now before us for construction.” In Maine v. Chicago, B. & Q. R. Co., 109 Iowa 260, text 269, 70 N. W. 630; 80 N. W. 315, the court said: “After the opinion prepared on the original submission of this cause was filed, a rehearing was granted on the petition of the plaintiff, to entitle this court to re-examine its holdings, to1 the effect that the contract between the plaintiff and the relief department of the defendant was valid, and to consider in that connection the case of Railway Co. v. Montgomery, 152 Ind. Sup. 1 (49 N. E. Rep. 582). That case so far as it was in conflict with our conclusion in this case, was overruled by the court which decided it, in Railway Co. v. Moore, 152 Ind. Sup. 345 (53 N. E. Rep. 290). See also to the same effect, Railway Co. v. Hosea, 152 Ind. Sup. 345 (53 N. E. Rep. 419) We have again considered the validity of the contract, aided by the exhaustive arguments of counsel and remain satisfied with the conclusion in regard to it announced in Donald v. Railway Co., 93 Iowa, 284, and in the original opinion in this case. That conclusion now appears to be in harmony with the holdings of all courts of last resort which have considered the principle involved, and to be well founded in reason. In the contract considered by the Iowa court in the Donald case supra, the statement of the facts shows that, “The fund is obtained by monthly assessments of its members, and the amount is deducted from the monthly payments. Such amounts as are not raised from these assessments are made up by the company from its earnings, in the may of. interest on- the monthly balances of the relief department. The inci*455dental expenses of the department — .incident to the conduct of its business — are paid by the railway company. In case the fund of the relief department is not sufficient, the company pays all 'benefits due, in full.” In that case, where “the Iowa statute is couched in ipsissimis verbis of our statute” the court did not say, as does the majority opinion in the instant case say, “The obligations of the defendant under the contract set up in the plea cannot be regarded as a consideration for the release, for, as we have already seen, that would give an effect which would make it void under the statute,” but the Iowa court, where the statute is so much like ours held the contract to be valid, and quoted with approval from the case of Leas v. Pennsylvania Co. 10 Ind. App. 47, 37 N. E. Rep. 423, as follows: “where a railroad relief association, composed of associated companies and their employes, is in charge of the companies, who guarantee the obligations, supply the facilities for the business, pay all the operating expenses, take charge of and are responsible for the funds, make up all deficits in the benefit fund, and supply surgical attendance for injuries received in their service, an employe’s agreement, in his voluntary application for membership, that acceptance of benefits for an -injury shall release any claim of damages therefor against the railroad is based on a valid consideration.”
In order to consistently say that the “obligations of the defendant under the contract set up in the plea cannot be regarded as a consideration for the release for, as we have already seen, that would give to the contract an effect which would make it void under the statute,” the majority opinion would have to hold that the contract itself is in contravention of our statute, that it is the contract,, the making and signing of the contract, which releases the railroad company or restricts its validity. But *456the majority opinion has repudiated that doctrine. The majority opinion has quoted case after case exposing the fallacy of that doctrine. The majority opinion, in express language, has said that “it is not the making or signing of a contract which estops the plaintiff from bringing and maintaining his action, for, if that was true, it would undoubtedly be in contravention of our statute, for the reason that it would restrict the liability of the defendant.” With all proper respect I must say that there seems to be some confusion as to what is meant by “the release,” and this misconception of the contract, is seen in the following statement in that opinion : “Separating it from, the contract, as must be done, the release pleaded as a defense in this case is as follows : the plaintiff subsequent to the injuries complained of in the declaration, applied for and then and there subsequently received medical and surgical treatment by reason of his membership in said relief department, on account of the injury complained of in the first, second, third and fourth counts of the declaration, and the defendant company, after the plaintiff received the injuries complained of, paid to the plaintiff benefits by reason of his membership in said relief department, on account •of said injuries, and the same were received by the plaintiff as benefits accruing to him by reason of said injuries on account of his membership in said relief department .and more particularly the defendant alleges these were paid by the said relief department to tire said plaintiff, on account of said injuries, benefits to the amount of $8.50, on or about to-wit: the 20th day of Februarjq 1905, which was the benefit rate to which the plaintiff was entitled as a member, under the rules and regulations of said relief department, and there was also' paid by said department the sum of $50.00 to certain physicians for care and surgical attendance upon said plain*457tiff and also, the sum of $42 for board for plaintiff, and also the sum of $8.00 for dressings of plaintiff’s injuries, making a total of $100.00 expended by said relief department for medical attention, care and board for said plaintiff, independent of said sum of $8.50 benefits paid directly to said plaintiff, and said relief department did all on its part to be done for and in behalf of said plaintiff by virtue of his membership in said department, whereby the defendant was released from any and all claims for damages against the defendant arising in any way out of the injuries of which plaintiff complains in his declaration.” I do not see how we can separate defendant’s plea at this point. Why begin the quotation or statement, of what is erroneously said to be the release pleaded as a defense, with the words that the plaintiff “subsequent to the injuries complained of in the declaration, applied for and then and there subsequently received medical and surgical treatment” etc. etc? Why not quote the five words of the plea, “and after his said election,” which come just ahead of, and which form a part of the very sentence in which occurs, the words, “subsequent to the injuries complained of,” etc? Why not go back with the quotation of the so called release to the semi-colon above the quotation given, so as to make the release pleaded read as follows: “that the plaintiff elecced to proceed under the terms of his said contract and the rules and regulations of said relief department, and accept the same in lieu of any claim for damages he might have by reason of the injuries received by him and the subject matter of this lawsuit, and after his said election, and subsequent to the injuries complained of in the declaration, applied for and then and there subsequently received medical and surgical treatment,' etc. * * * and there were paid by the said relief department the sum 'of $8.50, which was the benefit rate to *458which the plaintiff was entitled, etc. * * * whereby the defendant was released ?” That begins to look something like a release. The words quoted in the majority opinion are no release at all. They are nothing like a release. The words quoted in the majority opinion only show that the defendant received certain medical and surgical treatment from the relief department. The receipt of treatment and benefits by the plaintiff from the Knights of Pythias, or any hospital put up by some philanthropic man would not' release the defendant company. The receipt of this medical and surgical treatment and these benefits from the relief department would not release the defendant company if the plaintiff were not a member of the relief department, and unless it be shown, as the plea does show, that the plaintiff after his injuries “elected to proceed under the terms of his contract and the rules and regulations of said relief department and accept the same in lieu of any claims he might have by reason of the injuries received by him1 and the subject-matter of this lawsuit, and after his said election, and subsequent to the injuries complained of” the plaintiff applied for and received the medical and surgical treatment and benefits ; and not even then would the defendant be released unless it be shown, as the plea here does show, that the defendant performed some beneficial act, such as paying the operating expenses of the department, furnishing the hospitals and surgeons and nurses, etc., taking care of and being responsible for the safe keeping of the funds of the department, all of which would be ample “consideration to support a release to the railroad,” as will be seen by turning back to the quotation from the Ringle case 164 Pa. St. 529, 30 Atl. Rep. 492, found in the majority opinion. See, also, the Iowa cases, and others too numerous to mention again here.
I cannot concur in this treatment of the plea. I be*459Heve my duty requires me to consider this entire plea. If upon a consideration of this plea and the contract set out therein, we think the contract restricts the liability of the defendant, we should say so; and hold it to be in contravention of our statute. 'But I am of the opinion that the contract does not effect -the release, that the plaintiff in accordance with his right to elect, after his injury, whether he would sue the company or look to the relief department for his compensation, benefits and surgical treatment, etc., made his voluntary election to accept the 1 benefits from the relief department, that this election by the plaintiff under the terms of the contract, binds him to his choice of remedies, operates as a release of the defendant company under the terms of the contract and bars this suit, that the contract is supported by a valid consideration, is not opposed to public policy, is not in violation of our statute, and that the plea sets up the contract fully, sets forth the nature, character, objects of the relief department, the valuable contributions thereto by the defendant company; and so believing, it becomes my duty, as a member of this court, to say, the court erred in sustaining the demurrer to the plea, and that this cause should be reversed.
If the case be reversed, I believe the plaintiff would have a right to Set up, by replication to the plea, that his membership in the relief department was not voluntary on his part, but that his employment by the defendant was conditioned upon all employees becoming members of said association, and I am of opinion that such coercion on the part of the railroad company would avoid the relief department contract, and the plaintiff would be entitled to recover in spite of the said contract.
I am also of the opinion that, if the plaintiff Beazley was induced to receive medical and surgical treatment and money as benefits from said relief department by the *460misrepresentations of the surgeons and physicians attending him as to the seriousness of his injuries; or, if plaintiff did not elect to go to the hospital for treatment, but was taken there while in an unconscious condition and was unable by reason of his mental or physical condition to make any election under the contract, or if plaintiff received a check for benefits from the relief department under the said contract while he was suffering great pain, and thought it was given him in payment of extra work he had done for the defendant company, and was not informed of the true character of the check, or, if the plaintiff did not have an opportunity of electing whether to accept the benefits or to reject them, but was taken to the hospital by the arbitrary act of defendant company, and, after he was restored to consciousness, the physicians or other employees of defendant deceived him as to the extent of his injuries, and informed him that his injuries were temporary, and that he would be able to return to work in three or four weeks, but that his injuries were of a permanent nature, then the plaintiff will not be debarred of his action and right to recover by the terms of the relief department contract. All these matters were set up by replications to the original plea of defendant, and I am of the opinion that the amended plea should stand, and the plaintiff should be permitted to urge and present such matters of fraud, misrepresentations of the defendant company’s servants or physicians, or such incapacity of plaintiff to make an election of benefits under the contract, by replications to the amended plea. In this way, in my opinion, the right would be saved to the employees of the railroad company to contract for highly meritorious benefit's of the relief department and to elect to receive them, if they so desired, in cases where otherwise they might not be able to recover damages by a suit against the railroad com*461pany, and the right would be also secured to them of electing to bring, suit for damages against the railroad company, if they thought they had a chance to recover more from the company, and the relief department contract would not be a bar to their right to recover, if they had accepted the surgical treatment and benefits through misrepresentations, fraud or duress of the railroad company’s servants or agents, or through their own incapacity to make an election.
By this orderly course in the administration, of the law, the rig-hts of the plaintiff and defendant would be protected and no principle of the law would be violated.