The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1903-07-03
UHIhHUnD W. wv
J. ID. NJ. HamiltOn's Address
z Before Railway Claim Agents.
Holds That Personal Injury
Clause in Contracts Is Valid.
COURTS ARE SILENT.
Have Been No Decisions on
Point at Issue.
Thirty Day Notice Provision Is
EnfOrcibIe.
COURTS ARE SILENT.

At the annual session of the Associa-
ton of Railway Claim Agents at Nj
agara Falls, n. Y. on June 4, J. d. NJ.
Hamilton of this city, claims attorney
of the Atchison. Topeka & Santa Fe sys-
TEN, read an instructive paper on the
topic: rs the contract in the applica-
ton blank (for employmenD, requiring
the injured employee to give notice in
writing of his injury and the facts upon
which he bases his claim. binding
The argument which was fortified by
references to a large number of court
decisions in regard to the powers of con-
xacts with common carriers. employ
liability insurance policies, accident
III france policies. etc, was slightly
~ Iensed, as follows:
y ut has been somewhat difficult to pre-
pare a brief or argument on this topic.
for the reason that the subject is one,
1 believe that has not been solved by
any of the higher courts, and to arrive
at a correct solution as to the legality
of such a clause in the contract OF mr.
ing we are forced to rely upon the pub
Hshed decisions enforcing similar stipu-
lations i'm shipping contracts with COM
mon carriers, in employers liability in
surance policies, in accident insurance
policies in decisions declaring cOnsttu-
tional what is known as the employers
liability act, and in "a similar law ap-
plicable to cities. requiring notice after
injury as "A condition precedent before
right of action acCrues- These are alike
applicable to contracts between master
and servant because they do not as
stated in the opinions, pretend to re-
Heve the defendant from the conse-
quences of his own negligence nor Vlo-
late any other principle of public policy.
In Queen of the Pacific, $50 u. >, ~,
it is held.
d" A stipulation in a bill of ladng that
all claims against a steamship company,
or any of the stockholders of the com
pany for damage TO merchandise. must
be presented to the company within 30
days from the date of the bill of lading,
applies, though the suit be in rem,
against the steamship carrying the pro-
perty covered by the bill of lading.'
The court says: Similar stipulations
requiring notices of losses to be given to
common carriers. express companies,
telegraph and insurance companies have
so often been upheld by the courts. when
reasonable, that a review of the cases is
quite unnecessary. Indeed, this is not
the first time the question has boal be-
fore this court"
II Then follow numerous citations from
4, kgal opinions after which Mr.. Hamilton
US:
:, NFurthermore. it has been held by the
yougts in great many cases, wherein
the employer has a contract with the
employee that in consideration of receiv-
ing company's hospital care and atten-
ton he will waive all actions for dam
ages, and the courts have, as a general
rule, held all such contracts, when not
interfering with future liability for neg
hgence, to be valid and enforcible. 20
Am. and Eng. EncL Law, I'd ed 1876
And the supreme court of the United
states, IN contracts upon the part of eX-
press companies where in they have en-
ployed agents to travel upon the trains
and a contract has been entered into by
the express company and the agent re-
Heving the railway company from dam
ages while such agent is upon its trains,
in very elaborate opinion in the case
of 3. d O. 5. w. vs.. Voight sustained
the same contention and held such a
clause to be valid and enforcible.
1T will then be readily observed that
stipulations of railway company by
which an attempt is made to escape LA
bility as to negligence as carriers are
in great many instances enforcible,
but as to anything else the employee has
right to contract as to giving notice
as well as other persons. Thus it is not
duty of common carrier to transport
animals. and for this reason a railway
makes a contract with a circus COM
pany as a private carrier instead of
common carrier. and fixes its own terms
as condition precedent of taking tine
animals at all. But it is otherwise as to
freight which it is bound to receive of
anyone that offers it. The carrier can
not Qlcldle terms since railway COM
pany is under no obligations to employ
a certain man. the question of its duty
TO the public and, therefore. the ques-
ton of public policy, cannot arise. OF
course, the question of public policy
would probably appear if a contract
were to be made under which a railway
company might injure employees with
impunity.as the negligence which would
result from this would also affect the
safety of the travelling public and of
ne carrying Of freight But even in
tlch cases it has been held by the courts
"A contract of employment, by
y y .Fch the employee stipulates to hold
me employer harmless in case of neg
gigence, is valid.
1t must therefore be the result. if
the provision that the employe. before
bringing suit. shall give 30 days notice
of his intention, is valid in the instances
cited. that such a provision in the ap-
plication made before the employment
OF the servant if made part of his
contract of employment. would be bind
ing upon the employe. and the giving
of such a notice upon tho part of the
employe would be condition precedent
to his right of recovery.
II am fully of the opinion that such