This contract does not contemplate the commission of a crime or the doing of anything which is unlawful or contrary to good public morals. Even if it be conceded that the contract, under its terms, offered some incentive to appellant to commit a crime, that would not necessarily render it void. 'Where the parties to a contract do not contemplate the commission of any crime, the fact that the contract offers an incentive to do so will not render it illegal. This is well shown in contracts in which the benefit to accrue to one of the parties is conditioned on the death of the other party, thereby giving the former an interest in the death of the latter.' Jenkan interest in the death of the latter.' 15 Am. & Eng. Encyc. Law (2d Ed.), 938."

Then the court cites cases along this line, but in none of them does it appear, that the hastening of the benefit affects the continuing of any relationship of trust and confidence between the parties or the performance of any service other than support during life.

This kind of a contract would seem to be sustainable on the theory, that its general tendency is the prolongation rather than the shortening of life, either because presumed affection from consanguinity assists or there is the presumption of reliance on a family status thus created.

But such a contract as that involved in this case rests on a basis purely professional and confidential. Its tendency is against a pathological fact which courts should recognize,

that is it tends to undermine the trust in the physician which is so important a factor in the efficiency of medical treatment. We think it would be no violent stretch of public policy, if a contract for medical services over a long but definitely stated period with instalment payments were deemed void, because their tendency is to abuse a confidential relationship esteemed sacred.

Physicians are only allowed to practice medicine at all upon the presumption, not only that they are possessed of skill, but that their moral attributes will make them employ that skill with the utmost humanity.

A contract having a temptation in it to the contrary contains a menace to society, and we think it stands on another footing than those in the classes of cases cited. If this distinction might be thought more fanciful than substantial, it is to be remembered, that physicians must take into consideration other than mere physical symptoms for an honest compliance with such a contract as is instanced. There is an interrelation with police power which does not exist in the other cases.

here

SERVANT'S ASSUMPTION OF RISK OF MASTER'S BREACH OF STATUTORY DUTY.

Under the common law it was held that the servant assumed all the obvious risks of his employment and all those which, by the use of ordinary care, he might have known. This was read into each contract of employment. It was thought best to compel the employee to assume the responsibility for his act of taking, or remaining in, employment that was dangerous or hazardous. This was the law of England and the United States inherited it from the so-called mother country. This was and is the law in the United States. to-day, except in jurisdictions where it has been abrogated by statutes of some form or other. In a few of the states, such as North Carolina, South Carolina and Virginia, it is directly declared by statute that the servant shall not be held to have assumed the obvious risks of his employment. With the law in these and like jurisdictions, it is not the purpose of this article to deal. We shall only discuss the holdings of the courts in construing statutes which require the master to do certain things, or make certain provisions for the protection and benefit of the employee, being silent on the question of assumption of risk. Some of these statutes provide that certain penalties shall be forfeited to the state in case of failure to abide by the injunctions of the law, and others do not. The purpose of all of them is to protect, as far as possible, the servant from the dangers of his employment; to secure for him what he is, in by far the greatest number of cases, unable to secure for himself. In agreement with human nature, the employer seldom makes improvements except such as count for efficiency and enable him to increase his product. This be

(1) Thomas v. Quartermaine, L. R. 18 Q. B. Div. 685, 695; Smith v. Baker, A. C. 325; O'Maley v. South Boston Gaslight Co., 158 Mass. 135, 32 N. E. 1119.

(2) Denver & R. G. R. Co. v. Norgate, 141 Fed. 247.

ing true, the state, having an interest in the safety and well-being of its citizens, has, in many instances, passed laws looking to the general betterment of the conditions under which they may serve. It may be said that most, if not all, of the states have some legislation on the subject. There is a decided conflict in the opinions of the various jurisdictions on the question as to whether or not, under these statutes, the employee assumes the obvious risks of his employment, or whether the effect of these statutes is to annul this familiar doctrine of the common law.

A great deal of this confusion, it seems, is occasioned by the failure of the courts in some of the jurisdictions to distinguish between assumption of risk and contributory negligence. In the jurisdictions where the courts deny that the servant assumes the risk under these statutes, the defense of contributory negligence is permitted. The federal courts, as a rule, follow the decisions of the state courts in the jurisdiction from whence the case arises, but many of them are well reasoned and give reasons for their holding independent of the authority of the state courts, and accordingly should be considered here. The case of Narramore v. Cleveland, etc., R. Co.,3 which is one of the early cases holding that the servant does not assume the risk, and that the case ought to have gone to the jury on the question of negligence, was a suit for damages for personal injuries by a servant against the railroad company for failure of the defendant to block a guard-rail, on account of which failure, it was alleged, he was injured. In the opinion written by Judge Taft, the court says: "If, then, the doctrine of the assumption of risk really rests upon contract, the only question remaining is whether the courts will enforce or recognize as against a servant an agreement, express or implied on his part, to waive the performance of a statutory duty of the master imposed for the protection of the servant, and in the interest of the public, and enforceable by criminal prosecution.

We do not think they will. To do so would be to nullify the object of the statute. The only ground for passing such a statute is found in the inequality of terms upon which the railway company and its servants deal in regard to the dangers of their employment. The manifest legislative purpose was to protect the servant by positive law, because he had not previously shown himself capable of protecting himself by contract; and it would entirely defeat this purpose thus to permit the servant 'to contract the master out' of the statute. It would certainly be novel for a court to recognize as valid an agreement between two persons that one should violate a criminal statute; and yet, if the assumption of risk is the term of a contract, then the application of it in the case at bar is to do just that." It is plain that if assumption of risk under these statutes is a matter of contract, either express or implied, that the servant can have no redress where he has

remained in employment surrounded by obvious danger. If nothing was said concerning the matter the courts would hold, and do it correctly, that he agreed to assume the risk of the obvious and known dangers. If the contract was express there would be all the better reason for so holding. The only mode left to enforce the statute, passed for his protection, would be to proceed by a criminal prosecution, and in many cases this would prove of no effect, because of the smallness of the penalty. In many instances there is no penalty provided by the statute, and consequently no criminal prosecution could be instituted. If these statutes are passed for the benefit and protection of the servant, and we can safely say that all of them are, the best means of enforcing their provisions is to enable the servant to sue for damages for their nonperformance in case of injury. The one injured as a result of the non-performance, by the master, of the injunction of such a statute has more interest in the matter than the army of workmen affected by its provisions or the state in which he may live. If a penalty is provided the

not bound at once to leave the house and go into the street. They had a reasonable time to look for and move into other apartments; and by remaining for such reasonable time, they waive nothing." This approaches nearer the general rule in America.

The Indiana courts hold that the servant

does not assume the risk by remaining in employment surrounded by obvious dangers where a statute of the kind in question is in force. It was said in Buehner Chair Co. v. Fuelner," "it is also urged against the complaint that the allegations show that the appellee was in the full possession of his faculties, and with a full understanding of the alleged dangerous nature of the machine, he assumed the risk incident to its operation. He certainly knew it was without guards. If the action were based solely upon the employer's neglect to perform a common law duty, or if there was no valid distinction between neglect of a common law duty and the neglect of a specific statutory duty, the point would be well taken; but there is a distinction and under the recent cases of Davis Coal Co. v. Polland, 27 Ind. App. 697; Island Coal Co. v. Swaggerty, 27 Ind. App. 697, the appellee did not assume the risk arising from appellant's disregard of statutory duty." The case of Denver & R. G. R. Co. v. Norgate,1o is one of the strongest cases holding that the serv

was

and assumes the risk under a statute declaratory of the master's duty. It is held that as the Colorado statute in regard to the duty of the railroad company to block frogs did not expressly abolish the law of assumption of risks, that that law still in force. It also denied that the law of assumption of risks was based upon an implied contract, as held in the Narramore case,11 and said that it was a law outside of the contract between employer and employee, and a matter upon which they could not contract. The decision states that the legislature imposed the duty upon railroad

companies of blocking their frogs and guard-rails, and that it further provided that a failure to do so should be prima facie evidence of negligence. It does not say what the legislature meant when it said that this failure to so block its frogs and guard-rails should be prima facie evidence that it was negligent. What could it mean? It evidently means just what it says, and if the statute is to have any force or effect in this regard, it must be held, that by making this declaration, they meant that the law of assumption of risks should be abolished. Of what benefit would it be to a plaintiff to show by prima facie evidence that the defendant had been negligent. if he is to be thrown out of court by the law of assumption of risks as declared by the common law? It seems that the court overlooked a familiar rule of construction, that courts should so construe, if possible, an act as to give it force and effect, and not to nullify it.12 The supreme court of Rhode Island, in Langlois v. Dunn Worsted Mills,13 said: "The question whether a plaintiff can recover for a breach of statutory duty, notwithstanding an assumption of risk or contributory negligence on his part, is one on which there is some difference of opinion, but we think the clear weight of reason and authority is against such recovery. A statutory duty is no more imperative in law than a common law duty. A penalty may be imposed upon the offender for a breach of statute, but it does not change the relations between the parties, except to the extent that one entering the employ of another may assume, in absence of knowledge, that the terms of the statute have been complied with. It is also well settled that a court will not presume that a statute is intended to change a rule of common law unless such an intent ap*It has been common practice here and elsewhere to construe statu

pears.

*

*

(12) State v. Gerhardt, 145 Ind. 439, 461; State ex rel. Roby, 142 Ind. 168, 51 Am. St. Rep. 174; Newland v. Marsh, 19 Ill. 376; Dow v. Morris, 4 N. H. 16, 17 Am. Dec. 400; Grenada Co. v. Brogden, 112 U. S. 261 and cases cited in p. 269; Marshall v. Grimes, 41 Miss. 27. (13) 25 R. I. 645, 57 Atl. 910, 911.

tory duties in connection with assumed risks and contributory negligence. For example, ever since the advent of railroads, statutes have required the sounding of a bell or whistle in approaching a highway crossing. Yet, though the statute should be negligently disregarded, it has never been held that a plaintiff seeing the approach of a train, and injured while attempting to cross ahead of it, could recover. He would be held to have assumed the risk of so crossing, or to have been guilty of contributory negligence. The mere fact that the railroad company had violated the statute would not warrant a recovery." Most certainly not, but the trouble. with the court here is that they fail to distinguish between assumption of risk and contributory negligence. The doctrine of assumption of risks has no place in such a case, and the example illustrates nothing, except that the court was confused on two familiar doctrines. Contributory negligence, if any could be shown, would, however, defeat a recovery. If he raced with the train and was injured he was guilty of contributory negligence, but unless the court could say, as a matter of law, that contributory negligence was proven, the case ought to go to the jury. The court, in Narramore v. Cleveland, etc., R. Co.,11 in discussing the decision in Kniseley v. Pratt,15 said: "The Kniseley case, which, in our judgment, was wrongly decided, and many others in which a right conclusion was reached, seem to us to confuse an agreement to assume the risk of an employment, as it is known to be to the servant, and his contributory negligence. That under certain circumstances, the one sometimes comes very near the other, and cannot easily be distinguished from the other, may be conceded; but in most cases there is a broad line of distinction, and it is so in this case. For years employees worked in railroad yards in which blocks were not used, and yet no one would charge them with negligence in so doing. The switches and rails were mere perils of

(14) Supra. (15) Supra.

14

the employment. Assumption of risk is, in such cases, the acquiescence of an ordinary prudent man in a known danger, the risk of which he assumes by contract. Contributory negligence in such cases is that action or non-action in disregard of personal safety by one who, treating the known danger as a condition, acts with respect to it without due care of its consequences." That there is a distinction between them is recognized by the United States Supreme Court. In Union P. R. Co. v. O'Brien,16 the court said: "The second instruction was properly refused, because it confused two distinct propositions that relating to the risk assumed by an employee in entering a given. service, and that relating, to the amount of vigilance that should be exercised under given circumstances." In Hesse v. Columbus, S. & H. R. Co.," Judge Shauck, in speaking for the supreme court of Ohio, said: "Acquiescence with knowledge is not synonymous with contributory negligence. One having full knowledge of defects in machinery with which he is employed may use the utmost care to avert the dangers which they threaten." The distinction is also recognized in Cleveland, etc., R. Co. v. Baker,1s in which Judge Woods, speaking for the Circuit Court of Appeals, very clearly states the difference. The action was for damages against a railroad company for injury sustained by reason of a breach of a federal statute requiring the company to furnish grab irons. The statute, out of abundant caution, expressly provides that the continued service of the employee with knowledge of the breach of statutory duty by the company should not be regarded as an assumption of the risk. The court held that the proviso did not prevent the company from successfully maintaining the defense of contributory negligence. Assumption of risk and contributory negligence approximate when the danger is so obvious and imminent that no ordinarily prudent man would assume the risk of injury there

18

(16) 161 U. S. 451, 16 Sup. Ct. 618. (17) 58 O. St. 167, 50 N. E. 355. (18) 63 U. S. App. 553, 91 Fed. Rep. 224.