dissenting:
The bill of exceptions shows that the plaintiff withdrew all questions relating to inter-State commerce for the purpose of having a demurrer disposed of and having an immediate trial, and all claims growing out of any act regulating inter-State commerce were thereby eliminated from the case. When the agreement was made known to the trial court, the evidence that had been admitted tending to prove that the engine and cars were engaged in inter-State commerce was stricken out by the court and no evidence relating to that subject remained in the record. Without the agreement the plaintiff had no cause of action against the defendant under the Federal Employers’ Liability act, which only applies where the relation of master and servant exists, and to maintain an action under the act it is necessary to allege and prove the existence of that relation. The only mention made of inter-State commerce was in the original declaration, consisting of a single count, which charged that the defendant and the Chicago, Burlington and Quincy Railroad Company were common carriers engaged in inter-State commerce; that the plaintiff was employed as switchman in such commerce by the Burlington company; that the defendant owned the track upon which the Burlington company, at the invitation and with the knowledge of the defendant, operated its engines and cars, and that the plaintiff was injured by a semaphore negligently caused or permitted to be placed along the side of the track. There was no averment that the plaintiff was an employee of the defendant, but, on the contrary, it was averred that he was employed by the Burlington company, and the evidence showed that he was not an employee of the defendant, so there was neither averment nor proof constituting a cause of action under the. Federal Employers’ Liability act. The only cause of action alleged or proved was created by the law of this State, and, although the plaintiff could only recover uhder that law, the opinion of the majority is that the defendant was rightfully denied 'its defense under the same law.
There can be but one satisfaction for an injury, and if the defendant was liable the Burlington company was also liable and a joint tort feasor with it. The Burlington company had been running over this track in its existing condition for many years, had obtained the right to use, and had used, it in making deliveries to other railroads, and almost every month for at least five years had received a bill rendered by the defendant for the use of it. The Burlington company was chargeable with notice of the existing conditions, and if there was a cause of action against the defendant there was a cause of action for the same injury against the Burlington company. One was owner and the other licensee, and neither one erected, maintained or controlled the semaphore. One was as much liable for an injury from its location as the other, so that a satisfaction as to one would have the same effect as to- both. City of Chicago v. Babcock, 143 Ill. 358; West Chicago Street Railroad Co. v. Piper, 165 id. 325; Wallner v. Chicago Traction Co. 245 id. 148.
It is admitted by counsel, and was confessed by the remittitur in the Appellate Court, that the sums, paid to- and accepted by the plaintiff were to- inure to the benefit of the defendant as a joint tort feasor with the Burlington company, and the defendant, to show a release of the cause. of action, proved the following facts: The plaintiff was, and since 1902 had been, a member of the relief department of the Burlington company, and employees of that company made monthly contributions to the relief fund. The company maintained the department and bore the operating expenses, and during the years 1908, 1909 and 1910 contributed to the fund, without reimbursement, $244,000. The plaintiff had received from the relief fund, on account of his injury, $1231 for benefits and $1349.50 paid for hospital bills, physicians’ ■ services, and the like, and was still receiving similar benefits from the fund and would continue to receive them while disabled.
It is the law of this State that a voluntary acceptance by a railroad employee, after receiving an injury, of the benefits provided for in his contract of membership in the relief department of his employer, with knowledge that the contract provides such acceptance shall operate as a satisfaction of further claims against the employer on account of such injury, operates as a satisfaction and a bar to a subsequent suit for damages. This was decided in Eckman v. Chicago, Burlington and Quincy Railroad Co. 169 Ill. 312, following the general current of authorities in other States on the same subject. It was there held that such a contract by which an employee receives at once and without dispute or question a sum of money, perhaps less than he might prove in an action against the employer at the end of litigation, with the attending delays and expenses, and perhaps a division with attorneys, is not contrary to the public policy of the State. The facts proved by the defendant were sufficient to establish, under the law of this. State, a satisfaction by the Burlington company of the plaintiff’s injury and damages, and the evidence admitted in rebuttal was for the purpose of destroying that defense by means of the Federal Employers’ Liability act, which gave no cause of action to the plaintiff and under which the suit was not and could not have been brought. Congress has supreme control over the subject of commerce between the several States, and no one disputes the proposition that whenever suit is brought and facts are averred which constitute a cause of action under an act of Congress relating to that subject, the act supersedes all legislation over the same subject by the States, but Congress cannot, and has not attempted to, determine what shall be the policy of a State or what its laws shall be. There is no act of Congress which would give any right of action in favor of the plaintiff against the defendant, whether engaged in inter-State commerce or not. Congress has not legislated on that subject at all. In an action brought under the State law the defendant is as much entitled to the benefit' of the law as the plaintiff. If' the law of this State was good for the purpose of recovery it was equally good to establish a defense against the cause of action existing under the same law. To say that a law regulating the rights and duties of parties and giving a right of action for a violation of such rights and duties, and declaring what shall be a release of such right of action, is available for sustaining the action and not available for a defense is to destroy that equality of right which the law is intended to and must preserve. While the Federal statute supersedes the law of the State as to employer and employee when engaged in inter-State commerce, it only supersedes such law where allegations constituting a cause of action under it are made and proved. In the case of Mondou v. New York, New Haven and Hartford Railroad Co. 223 U. S. 1, the opinion was delivered in four cases arid the right of action in each was based solely on the act of Congress. The case of Michigan Central Railroad Co. v. Vreeland, 227 U. S. 59, presented exactly the same condition. The proviso to section 5 of the Federal statute allowing the employer to set off any sum it has contributed to^ a relief benefit or indemnity fund is expressly limited to actions brought under or by virtue of the provisions of the act, and neither that proviso nor anything contained in the act relates in any way to an action brought under a State law. If the plaintiff had sued his employer, the Burlington company, and alleged that the injury occurred while the engines and cars were engaged in inter-State commerce, the Federal statute would apply and the employer could only set off against the damages the sum contributed to the relief fund, but if the plaintiff had brought this suit against the Burlington company the evidence of membership in the relief department and the receipt of benefits would have established a satisfaction for the injury and have been a complete defense. We do not agree with the majority that a plaintiff may bring an action under the law of one jurisdiction and prevent, a valid defense under that law by invoking the law of another and different jurisdiction. The cause of action having been released, we think the judgment of the Appellate Court should be reversed and the cause remanded to the superior court.