(in whose opinion Mr. Justice WalkeR concurs) : While I concur in the result, I cannot agree to all that is said in the opinion of the Court.
*329The facts are that the plaintiff was a member of the Relief Department of the defendant, and voluntarily went to its hospital to be treated for a fistula, brought on from natural, causes, and in no sense an injury received by reason of the negligence of the defendant or its employees.
1. It would seem, therefore, that the Court has unnecessarily and improperly declared section 64 of the regulations of the Relief Department void. The Court has done this of its own motion and not at instance of either party. The learned counsel for both plaintiff and defendant admitted that section 64 was a valid and binding regulation upon the parties to this record.
If this plaintiff, having been injured by the negligence of the defendant, had sued to recover damages, and defendant had pleaded in bar of a recovery that the plaintiff had elected to take the benefits of the Relief Department, offered by it in lieu of damages, then the validity of section 64 would be squarely before the Court. But, as it is not claimed by plaintiff that the defendant is in any way responsible for the existence of the fistula, I am constrained to think that the validity of section 64 is not presented upon this appeal, and that the observations upon it are to be regarded as purely obiter dicta.
2. I am of opinion that section 64 is not void as against public policy, as a scheme devised by defendant to avoid the consequences of its own negligence.
The act of Congress referred to by the Court has no bearing whatever upon this case, as it appears upon the pleadings to be a matter wholly under the jurisdiction of this State, and in no particular within the domain of Federal legislation regulating interstate commerce. Besides, it makes the employee when holding' the company liable for negligence, account for all he may have received from the Relief Department. Section 64 does not enable the defendant to avoid the consequences of its own negligence.
The whole scheme of the Relief Department is founded upon a policy that considers the welfare of the employees as well as of the employer. "While the member pays certain annual dues, which are very small, the company bears by far the heaviest portion of the expense of maintaining the department. Its benefits are not confined to free hospital service, but embraces pay for 52 weeks, if disabled so long. All the employees of the company may take its benefits, whether disabled in the company’s service or ill from other causes. The insurance feature is a most valuable one to the employee. And if an employee is injured in the company’s service, he is not denied the right to sue the company for damages. That right is expressly reserved *330to bim. But be cannot take tbe benefits conferred by tbe Relief Department in case be does sue for damages.
No principle of public policy requires tbat tbe injured employee should be permitted to take botb. If be is sick from natural causes be bas tbe right to seek aid from tbe Relief Department. If be is injured in tbe service of tbe company be is entirely free to sue for damages, as much so as if no Relief Department existed. Under existing conditions, tbe injured employee may take whichever course be thinks is to bis interest, whereas before be was confined to one.
If,- in a helpless or unconscious condition from sudden injury, be is involuntarily carried to tbe hospital, no court would bold it to be an election, and it would be no bar to bis action. Tbe acceptance to bar recovery must be under circumstances when tbe injured employee bas capacity to decide for bimSelf. It seems tbat my learned brethren have not been able to fortify their opinion with any authority, as tbe case quoted from 14 Allan bears on a bequest in a will for charitable purposes.
On tbe other band, it appears tbat this identical' Relief Department is no new thing in this country. It bas worked well for employees and employer for thirty years or more and is common to nearly all tbe great railway systems of this country and Canada. Tbe validity of section 64 bas been upheld by text-writers and nearly all tbe courts of tbe Union. My brethren are setting up their personal opinions against tbe collective wisdom and well-considered judgments of over a hundred judges of tbe ablest courts in our land as well as in Canada.
All tbe text-writers agree with Judge Thompson, tbat tbe validity of this provision of tbe Relief Department of railways bas been so well settled tbat it is not open to question. Thompson on Neg., secs. 3853-4635.
While novel in this State, tbe validity of this contract bas been supported by tbe highest courts of New York, Pennsylvania, Maryland, Indiana, Iowa, Nebraska, Ohio, Illinois-, West Virginia, New Jersey, South Carolina, Georgia, Alabama, and also by tbe Federal Courts of Appeal in the Fourth, -Fifth, Sixth, Seventh and Eighth circuits. I quote from a few of tbe opinions.
In Petty v. R. R., 109 Ga., 666, tbe Court, speaking through Justice Lumplcin, states tbe case with great clearness: “Tbe contract does not in any of its terms or conditions stipulate tbat tbe defendant company should be absolved from the legal consequences of its own negligence or tbat of its servants. On tbe contrary, it merely provides a.n additional remedy to tbat given by law to an employee who might suffer injury by reason of tbe *331negligence, actual or imputable, of bis master. Tbe latter remedy was left intact, undisturbed and unimpaired; and tbe injured employee might or might not, at bis option, take advantage thereof. Trae, be could not avail himself of both, but was put upon bis voluntary election as to which of tbe two be would pursue. This feature of tbe contract is not only technically permissible, but is in perfect harmony and accord with tbe 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 the party thereto, in the event he sustains loss.” Approved in Carter v. Penna. and Wes. Ry. Co., 115 Ga., 853; 42 S. E., 239.
In Leas v. Penn. R. R., 37 N. E. Rep., 423, the Supreme Court of Indiana says: “There is no rule of public policy which condemns an arrangement between an employer and his servants, looking to compromises of claims for damages, and a system of general mutual relief for servants and their families.” So, also, is Bell v. C. B. and Q. R. R. Co., 42 Neb., 44; 62 N. W., 314; Eckman v. C. B. and Q. R. R. Co., 169 Ill., 312; 38 L. R. A., 750; Fuller v. B. and O. Emp. Rel. Assn., 67 Md., 43; 10 Atl., 237; C. B. and Q. R. R. Co. v. Curtis, 51 Neb., 442; Maine v. C. B. and Q. Ry. Co., 109 Iowa, 269; 70 N. W., 630.
In the ease of R. R. v. Moore, 152 Ind., 345, the Court said: “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.” The Iowa courts said substantially the same thing, and that the contract was mutual and violated no principle of public policy. As said by the Supreme Court of Pennsylvania, Johnson v. Ry., 163 Penn., 127: “The employee is not agreeing to exempt the company from liability for negligence, but accepting compensation for an injury already caused thereby.” The same Court well says: “The substantial feature of the contract, which distinguished it from those held void as against public policy, is that the party retains whatsoever right of action until after knowledge of all the facts and an opportunity to make his choice between the sure benefit of the association and the chances of litigation, and, having accepted the former, he cannot justly ask the latter in addition.” To the same effect speaks the Ohio Court: R. R. v. Cox, 55 Ohio St., 497.
In the Indiana case, R. R. v. Moore, supra, the Court, reviewing the authorities, says : “Indeed, the cases seem to be in sub-*332stan.ti.al accord.” Tbe Obio Court, in Sheets v. R. R., 68 Ohio St., sustaining tbe identical section now under consideration, said: “Tbe cases form a uniform current of judicial opinion. We have not been cited to a single case bolding a contrary view, and our research bas not been rewarded witb one. We think tbe tide of judicial opinion is irresistible.”
There were only two decisions in this country adverse to these views, and they were both overruled by tbe courts that made them. Miller v. R. R., 65 Fed. Rep., overruled 76 Fed., 439; Montgomery v. R. R., overruled in Moore v. R. R., 152 Ind., 345.
In view of tbe great array of cases from nearly all tbe courts of this country, constituting a solid phalanx of judicial precedents, as well as text-writers, against them, I can but admire tbe courage witb which my brethren stand by their own unsupported views.
For myself, I believe witb my Lord Coke, that “It is tbe function of a judge not to make, but declare the law according to tbe golden metewand of tbe law, and not by tbe crooked cord of discretion.” Omnis innovatio plus novitate perturbat quam utilitate prodest.
To indicate bow absolutely overwhelming tbe judicial precedents are against tbe views of tbe majority of this Court, I append a list of forty-one cases in tbe United States and Canada wherein tbe validity of this contract bas been sustained. There are none against it. Graft v. B. and O. R. R. Co., 8 Atl., 206 (Ba.); Fuller v. B. and O. Emp. Rel. Assn., 67 Md., 433; Owens v. B. and O., 1 L. R. A., 75; Post v. B. and O. Emp. Rel. Assn., 122 Pa., 579 (Pa.); Black v. B. and O., 36 Fed., 655; Martin v. B. and O., 41 Fed., 125; Kinney v. B. and O. Emp. Assn., 15 L. R. A., 142 (W. Va.); Spitze v. B. and O., 75 Md., 162; Leas v. Penn. Ry. Co., 10 Ind. App., 47; Johnson v. Penn. R. R. Co., 163 Pa. St., 127; Ringle v. Penn. R. R. Co., 164 Pa. St., 529; Donald v. C. B. and Q., 93 Iowa, 284; Wymore v. C. B. and Q., 50 Neb., 658; Bell v. C. B. and Q., 44 Neb., 44; Bryant v. B. and O. Emp. Assn., 9 Ohio C. C., 333; Brown v. B. and O. Emp. Assn., 6 App. D. C., 246; Smith v. B. and O. Emp. Assn., 81 Md., 412; Vickers v. C. B. and Q., 71 Fed., 139; Otis v. Penn. Ry. Co., 71 Fed., 136; Shaver v. Penn. Ry. Co., 71 Fed., 931; Eckman v. C. B. and Q., 169 Ill., 312; Cox v. P. C. C. and St. L., 35 L. R. A., 507 (Ohio); Stankard v. B. and O., 49 L. R. A., 381; Maine v. C. B. and Q., 109 Iowa, 269; Curtis v. C. B. and Q., 51 Neb., 442; Johnson v. Char. and S., 55 S. C., 152; Moore v. P. C. C. and St. L., 152 Ind., 345; Hosea v. P. C. C. and St. L., 152 Ind., 416; Beck v. Penn. R. Co., 63 N. J. L., 233; Petty v. Brun. and W. R. Co., 109 Ga., *333666; Clinton v. C. B. and Q., 84 N. W., 90 (Neb.); Elwood v. P. C. C. and St. L., 25 Ind. App., 674; Cowen et al. v. Ray, 108 Fed., 320; U. S. Cir. Ct. App.; Fivey v. Penn. R. Co., 12 Am. Neg. Rep., 313 (N. J.); Ferguson v. Grand Trunk, Rap. Jud. Que., 2 C. S., 54 (following Queen v. Grenier, 30 Can. Sup. St., 42) ; Hamilton v. St. L. K. and N. W., 118 Fed., 95; Carter v. Brun., and W. Ry. Co., 115 Ga., 853; Oyster v. Bur. Rel. Dep., 59 L. R. A., 291 (Neb.); Sheets v. P. C. C. and St. L., 68 Ohio St., 9; Walters v. C. B. and Q., 19 Am. Neg. Rep., 350 (Neb.); Harrison v. Ala. M. Ry. Co., 40 Law Rep., 394.