[237 U.S. 84, 85] Messrs. Levi H. David and Alexander Wolf for plaintiff in error.
Mr. Justice Hughes delivered the opinion of the court:
George R. Robinson, the plaintiff in error, brought this action to recover damages for personal injuries sustained by him while performing his duty as a porter in charge of a Pullman car which was being hauled by the defendant as a part of an interstate train. The injuries were received in a collision which was due, it was alleged, to the defendant's negligence. The defendant introduced in evidence the plaintiff's contract of employment1 with the Pullman [237 U.S. 84, 90] Company, by which he released all railroad corporations over whose lines the cars of that company might be operated while he was traveling in its service 'from all claims for liability of any nature or character whatsoever on account of any personal injury or death.' The trial court directed a verdict in favor of the defendant, and the judg- [237 U.S. 84, 91] ment, entered accordingly, was affirmed by the court of appeals. 40 App. D. C. 169, L.R.A. --.
The plaintiff in error complains of the admission of the contract in evidence, in view of the fact that a demurrer to a special plea setting up the release had been sustained; but, if the contract was a defense, it cannot be said that the court erred in giving effect to it, despite the earlier ruling. The evidence was admissible under the plea of not guilty. Brown v. Baltimore & O. R. Co. 6 App. D. C. 237, 242; Shafer v. Stonebraker, 4 Gill & J. 345, 355, 356; Johnson v. Philadelphia & R. R. Co. 163 Pa. 127, 133, 29 Atl. 854. It is also clear that, unless condemned by statute, the contract was a valid one and a bar to recovery. Baltimore & O. S. W. R. Co. v. Voigt, 176 U.S. 498 , 44 L. ed. 560, 20 Sup. Ct. Rep. 385; Santa Fe, P. & P. R. Co. v. Grant Bros. Constr. Co. 228 U.S. 177 , 57 L. ed. 787, 33 Sup. Ct. Rep. 474.
The substantial question is whether the contract of release was invalid under 5 of the employers' liability act of April 22, 1908 (35 Stat. at L. 65, chap. 149, Comp. Stat. 1913, 8657), which provides that 'any contract . . . the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act, shall to that extent be void.' The application of this provision depends upon the plaintiff's employment. For the 'liability created' by the act is a liability to the 'employees' of the carrier, and not to others; and the plaintiff was not entitled to the benefit of the provision unless he was 'employed' by the railroad company within the meaning of the act. It will be observed that the question is not whether the railroad company, by virtue of its duty to passengers, of which it cannot devest itself by any arrangement with a sleeping car company, would not be liable for the engligence of a sleeping car porter in matters involving the passenger's safety (Pennsylvania Co. v. Roy, 102 U.S. 451 , 26 L. ed. 141). Nor are we here concerned with the measure of the obligation of the railroad company, in the absence of special contract, to one in the plaintiff's situation by [237 U.S. 84, 92] reason of the fact that he was lawfully on the train, although not a passenger. The inquiry rather is whether the plaintiff comes within the statutory description; that is, whether, upon the facts disclosed in the record, it can be said that within the sense of the act the plaintiff was an employee of the railroad company, or whether he is not to be regarded as outside that description, being, in truth, on the train simply in the character of a servant of another master by whom he was hired, directed, and paid, and at whose will he was to be continued in service or discharged.
The contract between the Pulllman Company and the railroad company was introduced in evidence. Without attempting to state its details, it is sufficient to say that the case was not one of coproprietorship (see Oliver v. Northern P. R. Co. 196 Fed. 432, 435). It appeared that there was supplied by the Pullman Company on its own cars a distinct and separate service which was performed by its own employees under its own management. For this service the Pullman Company charged its customary rates. It was provided that the railroad company should not receive compensation from the Pullman Company for the movement of cars furnished under the contract, nor should the Pullman Company be paid for their use. But whenever the gross revenue from sales of seats and berths in the Pullman cars exceeded an average of $7,750 per car per annum, the Pullman Company was to pay to the railroad company one half of the excess; and if the average gross revenue from the Pullman cars (from causes beyond the control of the Pullman Company) was less than $6,000 per car per annum for two consecutive years, that company was entitled to terminate the agreement upon twelve months' notice, with the option, however, on the part of the railroad company, to pay to the Pullman Company such sum as would bring the gross revenue up to the specified amount, or to purchase the cars at a price to be determined. We think it to be [237 U.S. 84, 93] clear that in employing its servants the Pullman Company did not act as the agent of the railroad company. The service provided by the Pullman Company was, it is true, subject to the exigencies of railroad transportation, and the railroad company had the control essential to the performance of its functions as a common carrier. To this end the employees of the Pullman Company were bound by the rules and regulations of the railroad company. This authority of the latter was commensurate with its duty, and existed only that it might perform its paramount obligation.
With this limitation, the Pullman Company supplied its own facilities, and for this purpose organized and controlled its own service, including the service of porters; it selected its servants, defined their duties, fixed and paid their wages, directed and supervised the performance of their tasks, and placed and removed them at its pleasure. See Hughson v. Richmond & D. R. Co. 2 App. D. C. 98; McDermon v. Southern P. Co. 122 Fed. 669; Jones v. St. Louis Southwestern R. Co. 125 Mo. 666, 26 L.R.A. 718, 46 Am. St. Rep. 514, 28 S. W. 883; Chicago, R. I. & P. R. Co. v. Hamler, 215 Ill. 525, 1 L.R.A.(N.S.) 674, 106 Am. St. Rep. 187, 74 N. E. 705, 3 Ann. Cas. 42. It is said that the plaintiff had been promoted to be a 'porter in charge' of the Pullman car between Washington and Wheeling, with increased compensation, but he still was the porter of the Pullman Company, employed in its work. It is insisted that he should be regarded as the employee of the railroad company because of the fact that in the case of passengers coming on the train after 3 o'clock in the morning, he received the railroad ticket or fare, which he placed in an envelop and gave to the train conductor 'when he came back;' the railroad ticket was punched or canceled by the conductor. This, however, was an obvious accommodation to the passenger in the Pullman car, and in any event it was merely an incidental matter which cannot be deemed to qualify the character of plaintiff's employment as it is to be viewed from the standpoint of the statute. [237 U.S. 84, 94] We are of the opinion that Congress used the words 'employee' and 'employed' in the statute in their natural sense, and intended to describe the conventional relation of employer and employee. It was well known that there were on interstate trains persons engaged in various services for other masters. Congress, familiar with this situation, did not use any appropriate expression which could be taken to indicate a purpose to include such persons among those to whom the railroad company was to be liable under the act.
We conclude that the plaintiff in error was not an employee of the defendant company within the meaning of the employers' liability act, and that the judgment must be affirmed.
[ Footnote 1 ] The material portions of the contract are as follows: