Injured servant.В®

Whether the servant may by special contract deprive him-

self of the benefit of these statutes is a disputed question.

At common law it has generally been held that a contract

made in advance whereby an employee agrees to release and

discharge his employer for any injury that may be received by

reason of the negligence of the employer, or of his servants,

is contrary to jiublic policy and void.^ In Georgia, however,

such a contract is held valid. ^*^

1 Code, В§ 2323 (303G). 2 l, igoi, c. 4071.

8 L. 1874, c. 93. * Rev. St., В§ 2873.

5 Code, 1897, В§ 2071. s L. 1897, Sp. Sess., c. 6.

7 L. 1893, c. 220 ; Statutes 1898, В§ 1810.

8 Arkansas St., В§ G248 ; Mississippi Const., В§ 193, and Code, В§ 35.59; Mis-

souri Rev. St., В§ 2874 ; Montana Civil Code, В§ 905 ; Ohio L. 1890, p. 149 ;

Texas Rev. St., В§ 45G0/,- Utah Rev. St., В§ 1342.

В» Reno, Employers' Liability Acts, В§ 8 ; Ry. Co. v. Spangler, 44 Oh.

St. 471 ; Little Rock, &c. Ry. v. Eubanks, 48 Ark. 460 ; Johnson i: Rich-

mond, &c. Ry., 80 Va. 975 ; 2 Tlioiiipson on Neg., 1025 ; Roe.sner v.

Hermann, 8 Fed. Rep. 782; Louisville, &c. R. Co. v. Orr, 91 Ala. 548.

10 Western, &c. Ry. V. Bishop, 50 Ga. 405; Fulton isIills V. Wilson, 89

Ga. 318. In New York the precise question has not risen for decision,

and the Court of Appeals has carefully refrained from expressing its

FOR TORTS TO SERVANT. 349

By statute, under the Employers' Liability Acts, the question

presents itself under two aspects. First, in some jurisdictions

the statute does not in express terms forbid the making of

such contracts. This is the case under the English and Ala-

bama statutes, but diametrically opposite results have been

reached by the courts in those jurisdictions. In England it

has been held that it is not contrary to the policy of the stat-

ute to allow an employee to waive the benefit of the act by

contract, and that such a contract is binding not only upon the

employee himself, but also upon his representatives.^ In Al-

abama, it has been held that such a contract is void as con-

trary to public policy.2 Second, in some states the statute

expressly forbids the making of such contracts. This is the

case under the statutes in Indiana,^ lowa,^ Massachusetts,^

Minnesota,^ Mississippi," Texas,^ Wisconsin,^ and Wyoming.^^

That part of the Ohio statute making this restriction^^ has

been held unconstitutional.^^

opinion on the question in cases where it might have done so. Purdy v.

Rome, &c. Railroad Company, 125 N. Y. 209.

^ Griffiths V. Dudley, 9 Q. B. D. 357. Reno, Employers' Liability

Acts, В§ 6.

2 Hissong V. Richmond, &c. Ry., 91 Ala. 514.

3 Laws of 1893, ch. 130, В§ 5.

* Code, В§ 1307.

5 St. 1894, ch. 508, В§ 6.

6 Laws of 1887, ch. 13.

' Constitution (1890), В§ 193.

8 Laws of 1891, ch. 24, В§2.

9 Laws of 1893, ch. 220.

10 Laws of 1890-91, ch. 28.

" St. of Apr. 2, 1890 (Ohio Laws, vol. 87, p. 149).

12 Shaver v. Penn. Co., 71 Fed. 931.

350 LIABILITY OF MASTER

CHAPTER XXV.

LL\BIL1TY OF MASTER TO SERVANTS FOR HIS OWN TORTS.

В§ 280. Introductory.

The liability of a master to his servants for torts may be due

to his own personal act or omission, or to the act or omission

of his representative. We have discussed the latter situation

and have seen within what limits the master is liable to one

servant for the torts of another. It now remains to discuss

the liability of the master for his own personal torts resulting