
    Balthasar Runt, App’lt, v. Frank O. Herring et al., Resp’ts.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 5, 1892.
    
    1. Contract—Validity—Public policy.
    In an action for injury to plaintiff by defendants’ negligence, the latter pleaded in bar of the action, and on the trial offered in evidence a written agreement, whereby plaintiff, in consideration of employment and one dollar, agreed "not to institute, or appear osa witness in, any suit or proceeding,” nor to “ countenance or authorize any person to sue or appear and give testimony in any suit claiming'damages for injuries ” received while in defendants’ employ. Held, that such agreement was void upon grounds of public policy.
    3. Same—Void contract—Not competent evidence.
    Such contract being avoided for repugnancy to public policy, was not competent to be employed as an instrument of legal evidence.
    3. Same—Part OP CONSIDERATION ILLEGAL, WHOLE CONTRACT VOID.
    If any part of a consideration is illegal the whole contract is void as against public policy, even though the illegal act or promise is coupled with one that is legal.
    
      Appeal .rom a judgment on a verdict.
    Action for injury to plaintiff by the defendants’ negligence.
    
      Leopold Leo, for app’lt; Charles Ruslon, (J. A. Shoudy, of counsel), for resp’t.
   Pryor, J.

The case is before us on a single exception, and with only so much of the evidence as is requisite to show the point and pertinency of that exception.

On the 19th of January, 1885, the plaintiff, being in the service of the defendants, but for no definite time, signed the following paper:

“ For, and in consideration of employment, and one dollar in hand paid to me by Herring & Go., I hereby agree that in the event of my receiving any personal injury, accidental or otherwise, whether from the fault of other employees or machinery, belting, boilers, engines, trucks, defects of buildings, or from any other cause whatever, I will not hold Herring & Co., or any member of said firm, responsible, or make any claim for money damages, or appear as a witness in any suit- or proceedings. Neither will I countenance or authorize any other person to sue, or appear and give testimony in any suit claiming damages for injuries received as above stated. B. Runt.”

Thereafter, upon an allegation that, on the 20th of November. 1888, he had sustained an injury by the 'negligent omission of the defendants to provide him a safe working place, the plaintiff sued them in an action for damages; and, besides denying the imputed negligence, and attributing contributory negligence to the plaintiff, the defendants pleaded the above paper in bar of the action. On the trial, and as special matter of defense, the defendants offered the paper in evidence; the plaintiff objected to its introduction on the grounds that it was irrelevant, immaterial and incompetent, and a void instrument, because without consideration, and contrary to public policy. Nevertheless, the court admitted it in evidence, and it was marked “ Defendants’ Exhibit, No. 1,” to which ruling the plaintiff duly excepted. The reception of’ this paper as evidence in the cause is the error, and the only error, of which the plaintiff complains.

The recital of the employment, and the dollar paid, distimuu-dies the case from Purdy v. R. R. Co., 125 N. Y„ 209; 34 St. Rep., 737, and probably discloses a sufficient consideration to sustain the agreement. Nevertheless we are of opinion that the paper was a nullity; and if so, it was irrelevant and immaterial, because ineffectual as a defense to the action.

The action proceeds upon an allegation of the defendants’ own negligence; since the careless omission of the master to provide a safe working^ place for the servant is the breach of a duty incumbent upon him. and from the obligation of which he cannot escape by delegation to an agent

_ Whether a servant may, by contract, exonerate the master from liability for an injury inflicted by his own negligence, is queestio vexata in the jurisprudence of England and this country. The following cases support the affirmative of the proposition. Griffiths v. Earl Dudley, L. R., 9 Q B. D., 357 ; Western, etc., R. R. Co. v. Bishop, 50 Ga., 465 ; Western, etc., R. R. Co. v. Strong, 52 id., 461; Galloway v. Western, etc., R. R. Co., 57 id., 512. The great weight of American authority, however, is distinctly to the contrary. Roesner v. Hermann, 8 Fed. R, 782; Kansas Pac. R. Co. v. Peavey, 29 Kans., 169 ; Memphis, etc., R. R. Co. v. Jones, 2 Head, 517; R. R. Co. v. Spangler, 44 Ohio St., 471; Willis v. Grand Trunk R. Co., 62 Mc., 488 ; Greenhood on Public Policy, 528 ; Purdy v. R. R. Co., 125 N. Y., 209, 214; 34 St Rep., 737, obiter dictum by Peckham, J.

However this may be, still the agreement under criticism is • void, upon grounds of public policy. For an entire and indivisible consideration, the plaintiff stipulates “ not to institute, or appear as a witness in, any suit or' proceeding,” nor to “ countenance or authorize any person to sue or appear and give testimony in any suit claiming damages for injuries.” It is familiar learning that the courts will not tolerate an agreement to oust them of jurisdiction; and “a contract to prevent the performance of a duty imposed by law, and in the performance of which the state has an interest, is in contravention of public policy, and therefore void.” James v. Hendree, 34 Ala., 488. No duty upon a citizen can be more obligatory, or of greater interest to the state, than to be obedient to the process of the courts, and instrumental, as a witness, in the administration of justice. “ It is an established general principle that contracts having for their subject-matter any interference with the due enforcement of the laws are against public policy, and are therefore void. The law guards with jealousy every avenue to its courts of justice, and strikes down everything in the shape of a contract which may afford a temptation to interfere with its due administration. 13 Am. St., 362, note; Ormerod v. Dearman, 100 Pa. St., 561..

It is insisted, however, that here the stipulation of the plaintiff to forego his claim against the defendants may be valid and operative, although, his engagement not to sue or give testimony in the courts be illegal ana ineffectual. The contention is untenable. “ If any part of a consideration is illegal, the whole contract is void as against public policy, even though the illegal act or promise is coupled with one that is legal,” McNamara v. Gargett, 68 Mich., 454, for illegal contracts cannot be divided, and held valid in part and invalid in other parts. Santa Clara Valley Mill & Lumber Co. v. Hayes, 76 Cal., 387.

The respondent urges, however, that “ whether its provisions were binding or not, the contract was certainly admissible in evidence as the agreement under which plaintiff's services were rendered." But, surely, the agreement is fallacious, in assuming that a thing which in law is no agreement may still be an agreement between the parties, with the effect of controlling their rights and remedies. A nullity is inoperative for any and all purposes ; and when an apparent contract is avoided for repugnancy to public policy, it may not, without absurd inconsistency, be employed as an instrument of legal evidence.

Assuming that the admission of the paper was error, respondent contends that it was of no prejudice to the plaintiff because '‘no question in respect thereto was submitted to the jury,” and because “ the court refused to submit it to the jury, or to give it any effect whatever.” We do not so read the record. Against plaintiff’s objection the court received the paper in evidence; that ruling imports that it was read to the jury and by them considered; and this presumption is repelled by nothing in the case. It is of no avail to the respondent that reference was not made to the paper in the general charge by the court; nor that the court refused to charge that because of the paper the plaintiff could not recover. The paper was not withdrawn from evidence; nor did the court instruct the jury to exclude it from consideration, or tell them that it was not a defense to plaintiff’s recovery. The mere fact that the court refused to rule it to be a peremptory bar to the action, still left the jury free to attach the utmost importance to it as evidence against the plaintiff. And, doubtless, this effect it had on their decision; for, privileged by the court to weigh the paper as evidence, they, naturally, held the plaintiff to a deliberate agreement, in consideration of his employment, to release the defendant from liability to him for any injury in that employment.

Again, the respondent argues that the error in the admission of the paper was of no detriment to the appellant, because “the case does not contain a particle of evidence tending to show that the plaintiff had any cause of action, whatever, against the defendant.” But, the submission of the case to the jury itself imports an apparent right of recovery on the evidence; and, indeed, in its charge, the court expressly instructed the jury that the plaintiff’s evidence, if believed and not overborne, authorized a verdict in his behalf for the cause of action exhibited by the complaint.

The conclusion is that, for the ■ error indicated, the judgment should be reversed.

Judgment reversed, and a new trial ordered, costs to abide the event.

Daly, Ch. J., and Bischoff, J., concur.  