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RAILWAY Co. v. MAIN.

of carriage not involving any stipulation contrary to law or public policy. Lawson Cont. of Carriers, Sec. 110. This is a well recognized principle, but it can not affect the decision of this case, as the plaintiff did not stipulate for exemption from the consequences of its negligence as to the defendant's employees and with their consent. It has expressly agreed to remain liable for such negligence to the employees of the defendant, and the engagement of the latter was to indemnify against this very liability.

It is not necessary for us to decide in this case whether, under its facts and circumstances, the plaintiff could divest itself of the character of a common carrier by contract. Railroad v. Lockwood; 17 Wall., 376. Our case resembles that of Kenny v. Railroad, 125 N. Y.,422, which was a suit by an express messenger. It is there said that general words will not be construed to limit the responsibility of the carrier for negligence, and that the clause in question, which is similar to the one in this case, should be read so as not to necessarily release the railroad company or prevent an action by the employee of the express company against the former for damages for injuries received while on the road in the discharge of his duties, and the agreement should be considered as one to indemnify the railroad company in the event of such action. "This," says the court, "is a salutary and reasonable rule and the agreement a perfectly proper one for the parties to make," and further that an entire exemption from liability for negligence, which caused the injury to the employee of the company indemnified, will not be presumed, but must be clearly expressed, and immunity from the consequences of such negligence will not be held to exist unless "it is read into the agreement in ipsissimis verbis." This must needs be the correct doctrine, and, when tested by the rule thus laid down, the contract in this case can receive but one construction, namely, that the railroad company remained

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RAILWAY Co. v. MAIN.

liable to the employees of the defendant for the consequences of the negligent acts of itself or its servants. The language of the contract is, that the railroad company shall be saved harmless for any damage to the persons of the defendant's employees or agents, which is not the direct result of gross negligence; and again, that it shall not be held liable for a greater amount than $50, and if it should be held liable for a greater amount, the defendant binds himself to pay such excess to the plaintiff. This language is too plain to be misunderstood and clearly indicates the purpose to have been, not to exempt the railroad company from liability for negligence, but to indemnify it in case it should be liable. This brings the contract within the salutary rule of the law, and does not disappoint the intention of the parties. Besides, this court would hesitate to hold that Allen had relinquished his right of action against the railroad company by a contract. to which he had not consented and of which, so far as the case shows, he was entirely ignorant. He might well say "non haec in foedera veni." There can be little or no question as to the validity of the contract as one of indemnity, even if we regard the railroad company as a common or publie carrier and incapable in that capacity of stipulating against liability for its negligence, as such insurance against liability does not diminish the carrier's own responsibility to the passenger under its care, but increases the means of meeting that responsibility; nor does such insurance tend to relax the carrier's vigilance, as the carrier remains liable to the passenger and no principle of public policy is violated. Casualty Insurance Co. Case, 82 Md., 535; Insurance Co. v. E. & W. Trans. Co., 117 U. S., 324; Ins. Co. v. U. C. Co., 133 U. S., 387. But as we have treated this contract as one between the defendant and the plaintiff, as a private carrier, and the defendant, there can be no possible doubt as to its validity.

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RAILWAY Co. v. MAIN.

The defendant contends further that there should have been an adjudication of the plaintiff's liability to Allen by a court of competent jurisdiction before the plaintiff could call upon it for reimbursement under the contract. We can not agree with the defendant in this contention. It is alleged in the complaint that the defendant was notified by the plaintiff that Allen had made his demand for damages for the injuries he had received, and that he would take $750 in full settlement of his claim, and that the defendant "curtly refused to pay Allen one cent;" and that the sum paid Allen was less than the actual damages he sustained, and less than he could and would have recovered before a jury. By the demurrer, the defendant fully admits the truth of this allegation, and for the purpose of ruling upon the demurrer, we think the above statement is a sufficient allegation that the plaintiff has been damnified. The defendant, at the trial of the case, will not be concluded by the settlement with Allen, but will be at liberty to show that the amount paid was excessive, or that Allen was not entitled to recover anything. Why require the plaintiff to sue and recover judgment, when the defendant by demurrer admits the plaintiff's liability to Allen and the amount thereof? Kerr v. Mitchell, 18 E. C. L., 447; Laing v. Hanson (Tex. Law App.), 36 S. W. Rep., 117; Lindsey v. Parker, 142 Mass., 583; Connor v. Reeves, 103 N. Y., 527.

The objection to the claim for $95.08, which amount was paid by the plaintiff to the sheriff for feeding the horses attached in this case, while they were in his possession, must be overruled. While it is not strictly speaking a cause of action and should not have been joined as such in this suit, and ought therefore to be disregarded, the defendant was not prejudiced by the failure of the court below to sustain his demurrer in this respect, as the expense of keeping the horses, which can hereafter be allowed by the court, must be taxed

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RAILWAY Co. v. MAIN.

in the costs and paid by the losing party (Clark's Code, 3d Ed., Sec. 466), and it can make no difference to the defendant how this allegation is considered, whether it is properly a part of the complaint or not, for the plaintiff's recovery of this expense must necessarily depend upon its success at the final trial of the case. If the plaintiff wins in the end, the defendant must pay that expense; and if the plaintiff loses, it can have no reimbursement for the amount paid to the sheriff. It is a mere incident to the suit and not a part of the cause of action, and no issue as to it will be submitted to the jury. Upon a review of the whole matter, we do not find any error in the judgment of the court overruling the demurrer.

Per Curiam. No Error.

HINSON v. TELEGRAPH Co.

HINSON v. POSTAL TELEGRAPH CABLE CO.
(Filed April 28, 1903.)

1. TELEGRAPHS-Negligence-Contributory Negligence.

In an action against a telegraph company for delay in delivering a message, where the court charged that defendant would have discharged its duty "if it tendered the telegram at the mills where plaintiff was employed, and to which the telegram was addressed, to an employee thereof having access to the pay rolls, and who refused to receive the same, telling defendant that plaintiff was not employed there, and defendant then inquired of a boy in the millyard, at the post office, at the city directory, and also sent a service message," it was error to add, "and used the diligence that one of ordinary prudence would have exercised under the circumstances."

2. TELEGRAPHS-Negligence.

Where a person in whose care a telegram is addressed refuses to receive the same, the telegraph company must make reasonable effort to deliver it to the sendee.

3. TELEGRAPHS-Negligence-Contributory Negligence.

The negligence of a person in whose care a telegram is sent will be imputed to the sendee and not to the telegraph company.

ACTION by M. L. Hinson against the Postal Telegraph Cable Company, heard by Judge W. R. Allen and a jury, at January Term, 1903, of the Superior Court of DURHAM County. From a judgment for the plaintiff, the defendant appealed.

Boone, Bryant & Biggs, for the plaintiff.
Winston & Fuller, for the defendant.

CONNOR, J. On the 19th day of June, 1902, E. W. Hinson, father of the plaintiff, delivered to the defendant's agent at its office in Durham, N. C., for transmission and delivery a message in the following words and figures:

"To M. L. Hinson, Care of Olympia Mills, Columbia, S. C.: "Come at once. Your mother is dying. Answer.

"B. W. HINSON."

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