dissenting: The jury found upon the evidence, and on the issues duly submitted, that the plaintiff requested the defendant to notify him of the date and place when the said advisory committee would hear his said appeal; that the defendant promised the plaintiff that it would give him such notice; that his appeal was heard by the committee on 4 November, 1905, but that the committee gave the plaintiff no notice; and further, that if plaintiff had had notice, he would have attended the hearing of his appeal before the committee on 4 November, 1905, and that the decision and ruling of the advisory committee on plaintiff’s appeal, which confirms the ruling of the superintendent discontinuing the plaintiff’s benefits under his said certificate, was “fraudulent and void”; that the plaintiff was injured in the employment of the defendant, as alleged in his complaint, on 6 September, 1902, and that by reason of his certificate of membership and contract he was entitled to recover of the defendant therefor the sum of $909.50.
Upon these findings of fact the judgment of the able and learned judge who tried this cause should be affirmed.
This case was first brought to this Court 147 N. C., 103. It was again before the Court 157 N. C., 194.
This proceeding was brought under the Relief Department, which was a system under which the defendant compelled all its employees to contribute monthly a sum which constituted a fund, controlled by the de-' fendant’s officers, out of which employees injured by the negligence of the defendant were made to pay the damages for their own injuries. This system has been heretofore described in this case, 157 N. C., at p. 208, and also in same volume at pp. 66-69, which description need not be repeated. It was held to be in violation of the Employers’ Liability Act, Bev., 2646, in Barden v. R. R., 152 N. C., 318, and though that case was partially overruled by the majority opinion in King v. R. R., 157 N. C., 44, such “Eelief Departments” were afterwards declared invalid in R. R. v. McGuire, 219 U. S., 549, and Schoubert v. R. R., 224 U. S., 603, under a similar act, though in those cases, unlike this, the employees were not required to join the relief department. And also in the Federal Employers’ Liability Act of 22 April, 1908, there is a provision almost identical with our Eevisal, 2646.
This proceeding, it is true, is not to hold the contract invalid, but to enforce an agreement under it by which in return for the payments made by the employees the plaintiff was to receive compensation, out of the fund thus created, for injuries sustained by him in the course of his employment.
Daniel Webster defined “due process of law” as “that law which proceeds only upon inquiry, which hears before it decides, and renders judgment only after trial.” Upon the findings of fact by the jury in this *190ease the plaintiff has been denied that right. He was not only entitled to a hearing of the appeal by the committee as a matter of common right, but the jury find that he was promised such hearing and notice thereof, but, notwithstanding such promise, his appeal was heard without notice given him, though he would have attended if given notice. This makes such action “fraudulent and void.” Even if it did not, it entitled the plaintiff to be heard by the jury.
The strength of the appeal is really rested on the exception that the motion for a new trial upon the ground that the verdict was “against the weight of the evidence” was denied by the judge below. This is not ground of appeal, though it is set out in the exceptions in this case and really sums up the defendant’s contention, which is shaded into an argument that there is no evidence. The evidence of Dr. Thomas, witness for the defendant, is that he dictated but did not sign the notice to defendant, that he “would not swear such notice was deposited in the mail,” and no one else swore it. The plaintiff swore positively that he “did not receive any such letter.”
The jury thought, not unnaturally on such testimony, that there was a preponderance of evidence for the plaintiff, and twelve men who were charged by law with finding the fact have upon their oaths returned the verdict. Judge Daniels refused to set aside the verdict on the allegation of the defendant that the verdict was “against the weight of the evidence.” The only direct and positive testimony was for .the, plaintiff, and the jury believed him.
There is nothing whatever that calls in question the validity of the finding of the jury that the plaintiff was in fact damaged to the extent of $909.50 on 6 September, 1902, while in the employment of the defendant, and we have held in Burnett v. R. R., 163 N. C., 190, following the decisions in R. R. v. McGuire, 219 U. S., 549, and R. R. v. Schoubert, 224 U. S., 603, that the acceptance.of benefits from the Kelief Department does not prevent the plaintiff from recovering damages in a court of law, because the stipulation in the contract against such resort is invalid. When an injury of this kind is sustained, the party injured should have the speediest and promptest recovery. They are generally in needy circumstances, and whatever recompense is due them should be speedily paid. This'is elementary justice. Such claimants can usually secure counsel only on credit, while the defendant, with (as we know from the facts in Goldsboro v. R. R., 155 N. C., 364) more than $223,000,000 of property, is able to furnish an unlimited number of counsel. In this case the defendant was injured more than twelve years ago, and has as yet been unable to secure payment of the damages which the jury say he sustained at that time, of $909.50. This same defendant, in Penny v. R. R., 161 N. C., 530, procured, a new trial in this Court after four *191successful verdicts in favor of the plaintiff, approved by four Superior Court judges. We must take it that, as presented, each of these four new trials was properly granted; but this illustrates the inability of claimants in a matter of this kind getting a speedy decision in their favor and the ability of such defendants to allege and prove error. In a more recent case, Matt v. R. R., 164 N. C., 367, this same defendant held off another trial eight years after summons issued before a jury trial could be had. The courts ought not to be blind to the fact that employees in straitened circumstances have not equal advantages in presenting their claims against powerful defendants without some technical irregularity being discovered or pointed out by numerous and able counsel. These three are doubtless but a few instances of the many in which exhausted plaintiffs in such contests with their powerful opponent have been compelled to abandon or compromise their just rights. We must presume that the courts in'each ca’se did what was right upon the facts and the law as presented to them, but we must consider the immense advantage to the defendant and the disadvantage to the plaintiffs in procuring the means to have their causes presented in a court of justice. The jury and the judge in this case have found that the plaintiff was deprived of his just rights in this matter by means that were fraudulent and void, and there is ample evidence to sustain that view of the judge and jury, as above set out.
In a much cited instrument (Magna Carta) King John was forced by the insurgent barons to promise that “justice should not be delayed” to any freeman, but they forced him to promise that in suits against themselves they should be tried by their fellow barons only, and not in the king’s-courts. Such instances of protracted litigation at the hands of powerful defendants should not go unnoticed by the courts.
When this case was before us, 157 N. C., 194, the Court held that the plaintiff was entitled to a hearing before the committee. The jury have found by their verdict upon the evidence (which Judge Daniels held was not inferior in weight to that of the defendant) that the plaintiff has not had such hearing and was fraudulently deprived of it. Indeed, the weight of evidence was, as the jury found, decidedly in favor of the plaintiff, for Dr. Thomas would not swear that the letter was put in the mail, and therefore no presumption arose even that it was delivered, and the plaintiff swore positively that he did not receive the letter.
Upon such testimony the action of Judge Daniels in refusing to set aside the verdict was, in my opinion, proper and just.