Opinion
No. 46/719.
07-28-1921
DELAWARE, L. & W. R. CO. v. SMYTH et al.
Frederick B. Scott and G. W. Smyth, both of New York City, for complainant. Alexander Simpson and Thomas F. Tumulty, both of Jersey City, for defendant Smyth. Wm. K. Flanagan, of Newark, for defendant Adams Express Co.
Action by Samuel Smyth against the Delaware, Lackawanna & Western Railroad Company. Defendant's answer was in the nature of a bill for specific performance, and it prayed that the case he transferred to equity, which prayer was granted, and the Adams Express Company was brought in as a party. Bill dismissed.
Frederick B. Scott and G. W. Smyth, both of New York City, for complainant.
Alexander Simpson and Thomas F. Tumulty, both of Jersey City, for defendant Smyth.
Wm. K. Flanagan, of Newark, for defendant Adams Express Co.
GRIFFIN, V. C. Samuel Smyth, a defendant in this suit (who will hereinafter be referred to as the defendant), commenced his suit in the Supreme Court of this state against the complainant to recover damages for personal injuries alleged to have been sustained on the 23d of August, 1917, by reason of the negligence of the complainant in operating its cars. He was an employee of the Adams Express Company, and at the time of the accident was engaged as a stacker in a car of complainant, and was lawfully there.
The complainant, by its amended answer in the suit at law set up that Smyth was a servant of the Adams Express Company, and upon entering its employ signed an agreement to execute a release of claims of the character set out in the declaration, and prayed that the case be transferred to equity, to the end that the defendant might be decreed to specifically perform his contract to deliver the release, and the cause was so transferred. After the record at law was filed in this court, the Adams Express Company was brought in as a party defendant, an issue was framed by filing pleadings according to the practice in equity, and proofs were taken.
The facts appearing are that the defendant, on the 6th day of June, 1917, signed an application for employment with the Adams Express Company, and signed an agreement captioned "Accident Release." At the time this agreement was signed there existed an agreement between the complainant and the express company, called an "express transportation contract," in which the express company bound itself to indemnify complainant.
It is unnecessary to recite these agreements in full, because they are substantially the same as those referred to in the opinion of Mr. Justice Swayze in the Supreme Court in the case of Dodd v. Central R. R. of N. J., 80 N. J. Law. 56, 76 Atl. 544, excepting this— that, in the "accident release" in the present case the defendant assumed the risk of accidents and injuries resulting by or from the gross or other negligence of any corporation or person engaged in any manner in operating any railroad, vessel or vehicle, etc., and in the event of the defendant recovering from any of the carriers with whom the express company had contracted, for injury, etc., due to the gross negligence of the carrier, etc., by means whereof the express company under its agreement should be compelled to pay such negligent carrier, the defendant bound himself and his legal representatives to repay such sum, with interest, eta, to the express company. In Dodd v. C. R. R. of N. J., supra, 80 N. J. Law, at page 59, 76 Atl. 546, Mr. Justice Swayze, speaking for the Supreme Court, said, referring to the question of public policy:
"This question is to be solved in view of the existing state of the law without regard to the changes, which perhaps now are generally considered desirable changes, introduced by statutes in other jurisdictions. We have no statute forbidding a contract by which the employee agrees to exempt his employer from liability"
—and, finding that the contract was not, in law, against public policy, reversed the judgment of the district court, which was in favor of the plaintiff. This case was unanimously affirmed by the Court of Errors and Appeals, 82 N. J. Law, 524, 83 Atl. 1118, April 19, 1912.
Since the above decision, on April 1, 1913 (Laws 1913, c 174, p. 302; 1 Supp. Comp. St, 1915, p. 1651), and prior to the date of the agreement in question, a statute was passed providing, in paragraph 23 of section 3, as amended (page 312), as follows:
"No agreement, composition or release of damages made before the happening of any accident except the agreement defined in section 2 of this act, shall be valid or shall bar a claim for damages for the injury resulting therefrom, and any such agreement, other than that defined in section 2 herein, is declared to be against the public policy of this state. The receipt of benefits from any association, society or fund to which the employee shall have been a contributor shall not bar the recovery of damages by action at law or the recovery of compensation under section 2 hereof."
The foregoing paragraph is general in its terms, and renders invalid all such agreements or releases as that contained under the caption "Accident Release."
It is unlike the federal statute entitled "An act relating to the liability of common carriers to their employees in certain cases" (U. S. Comp. St. §§ 8657-8665); section 8661 (being section 5 of the act) which applies only to contracts between the carrier and its employee, and an express company not being a carrier within the meaning of the act, the statute, is inapplicable. Wells Fargo & Co. v. Taylor (decided Dec. 6, 1920) 254 U. S. 175, 41 Sup. Ct. 93, 97, 65 L. Ed. ——, citing with approval Higgins v. Erie R. R. Co., 89 N. J. Law, 629, 90 Atl. 98; Chicago & Alton R. R. Co. v. Wagner, 239 U. S. 452, 36 Sup. Ct. 135, 60 L Ed. 379.
The case, therefore, is a common-law action to recover damages against an alleged tort-feasor, which is not governed by the federal statute, in this: That the defendant was not an employee of the complainant, a carrier, and was an employee of the Adams Express Company, which is not a carrier. Ghicago & Alton R. R. Co. v. Wagner, supra.
There is nothing alleged in the pleadings, nor that appears in the case, so far as I am able to perceive, that raises any federal question, which makes our laws inapplicable, and as under such laws said agreement is declared to be against the public policy of this state, complainant is not entitled to relief herein. I will advise a decree that the bill be dismissed.
Certain other questions have been raised, such as the effect of accepting benefits under our Workmen's Compensation Act from the express company. Jacowicz v. D. L. & W. R. R. Co., 87 N. J. Law, 273, 92 Atl. 946, Ann. Cas. 1916B, 1222. Such questions may be fully presented on the trial at law.
As the transfer to this court was made, and the pleadings molded into a suit for specific performance in aid of a suit at law, and as the only equitable question presented has been decided against the complainant, an order will be made retransferring the case to the Supreme Court, pursuant to the statute.