Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-03-25

this contention, the plaintiff relied on
section 26l3 of the Civil Code. which de-
clafeS that 'all contracts between mas
ter and servant, made III consideration
OF employment, whereby the master is
exempted from liability to the servant
arising from the negligence of the mas
ter or his servants, as such liability is
now fixed by law, Shall be null and
void, as against public policy" AS
should be readily apparent, the weak
ness of this position lies in the fact
that 1t is based upon an entire miscon-
ceptlon OF the meaning and effect of
the contract thus assailed. 1t did not,
as claimed, in any of it's terms of con-
ditions stipuiate that the defendant
company should be absolved from the
legal consequences of It's own negli-
gence or that of its servants. On the
contrary, 1t merely provided an addi-
tional remedy to that given by law to
an employe who might suffer injury by
reason of the negligence, actual or i'm
putable. OF his master. The latter rem
edy 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
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 q 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 n suit
for damages. can he possibly fail TO
realize all the fruits of every right
given him by law. That 1t is concev-
able he may make such Il mistake does
not render the contract essentially and
inherently vicious, and therefore OPP
posed0to public policy. a much more
extended argument on the line just
suggested might be presented but we
deem 1T wholly unnecessary. The ques-
ton under discussion is not n novel
one, but has been heretofore thorough
ly sfted, infinitely analysed, and salts
factorily determined, by number of
the ablest courts of this country. Petty
expressly stipulated that acceptance
by him from the relief and hospital de-
partment of any of the benefits pro-
vided for by its regulations should OPP
crate, without more, to release the de-
PENDANT company from all claims for
damages he might have against it: In
other words. the contract put him upon
his election to look solely either to the
treasury of that department, or to the
assets belonging to the company for
compensation, in the event he sustain
ed injury under circumstances which
he thought entitled him to redress from
1T; and the moment he gave evidence
of his election by proceeding against,
and actually receiving benefits from,
the department. he necessarily relin-
quished his right to call upon the COM
pany for anything. for it was mu-
tually agreed between him and the
company that such conduct on his part
should be conclusive evidence of his ac-
ceptance of the departments obligation
to pay him stipulated benefits. which
obligation was expressly conditioned
upon his first fully releasing the COM
pany from all liability. 1t is to be re-
membered that one of the regulations
of the relief department was that, "in
the event of disability or death from
accidental injuries" none of the bene-
fits therein provided for should "be
payable or paid until there be first
filed" a satisfactory release of that
character. Under those circumstances
the department made to its members
only conditional promise. It was ne
cesSary to release the company. The
release was not itself to be conditioned
upon a fulfillment of the promise, but
was to be the consideration supporting
such promise, rendered and parted with
in advance in order to make the
promise itself obligatory.