
    RAILROADS — MASTER AND SERVANT — CONTRACTS — RELEASE — WAIVER—PLEADING.
    [Clark (2nd) Circuit Court,
    June, 1904.]
    Sullivan, Wilson and. Dustin, JJ.
    Henry J. Bowers v. Detroit Southern Ry.
    1. Section 3365-20 Rev. Stat. Only Inhibits Releasing Claims nob Damages Accruing Befoee Execution of Release, etc.
    A contract whereby'a person about to enter, or in the employ of a railroad company surrenders or waives any right to damages against such company arising for personal injury or death, is not within the inhibition of Sec. 3365-20 Rev. Stat., if the injury which is the predicate of his claim for damages was, incurred before the execution of the contract; the right to damages which cannot be released is one thereafter arising. . The inhibition of the statute is not broadened, in such case, by the clause, “whereby he agrees to surrender or waive, in case he asserts the same, any other right whatsoever.”
    2. Re-Employment of Injured Employe by Railroad Company not Against Public Policy.
    The re-employment by a railroad company of a person who was injured in its service, in such capacity as he may be able to serve, is not against public policy in that it favors the employment of incompetent persons, and endangers the safety of the public.
    3. Exhibit not Made Part of Pleading Cannot Be Considered on Demurrer.
    A copy of a contract which is attached to an answer and marked “Exhibit A,” but which is not made part of the answer, cannot be looked to for tne purpose of determining a demurrer to the answer. The court will, ini such case, confine itself to the averments of the answer.
    4. Contract Lacks Mutuality, When,
    A contract of employment in no stipulated capacity, for no stated period, except such as may be satisfactory to the employer, and for no designated wages, does not imply mutuality.
    6. When Consideration is of Some Value, its Inadequacy not Inquired Into— When Sufficient on Demurrer.
    While the consideration of a promise should be of some value, it is sufficient if it could be valuable to the party promising. Its inadequacy will not be inquired into by a court of law, unless it is per se so gross as to prove fraud or imposition. Hence, an answer of a railroad company, based upon a contract of re-employment of a former employe, which avers that in consideration of his re-employment, plaintiff released it from all claims that he had against, it arising out of any injuries sustained by the accident set forth in the petition, and that thereupon, in consideration of said release, defendant re-employed plaintiff and continued to retain him in its employ until such time as plaintiff voluntarily left its employ, is not demurrable for want of consideration or mutuality of contract.
    Error to Clark common pleas court.
    C. E. Ballard, for plaintiff in error.
    Oscar T. Martin, for defendant in error.
   WILSON, J.

The plaintiff in error filed a petition in the court below to recover from the defendant for injuries occasioned by the alleged negleet of the defendant. To the petition the defendant interposed an answer, tbe .second defense in wbicb is as follows: ■

“Second. And for a second defense defendant says that on November 18, 1902, said plaintiff, in consideration of his re-employment "by said defendant, released said defendant from any and all claims that .he had against said company arising ont of any injuries which he may have sustained by the accident set forth in the petition; and thereupon, :in consideration of said release the said defendant re-employed said plaintiff and continued to retain him in his employ until such time ■as the said plaintiff voluntarily left the employ of said defendant. A •copy of said release is hereto attached, marked ‘ Exhibit A. ’ ”

A demurrer was interposed to this defense by the plaintiff and •overruled, and thereupon, the plaintiff not desiring to plead further, judgment was had for the defendant and the petition dismissed.

It is claimed on the part of the plaintiff in error that the contract pleaded in the answer was void by reason of the provisions of See. •3365-20 Rev. Stat. The part of that section which applies directly to 'this case is the latter clause, which reads:

“And no railroad company, insurance society or association, or ■other person shall demand, accept, require, or enter into any contract, ■agreement, stipulation with any other person about to enter, or in the employ of any railroad company whereby such person stipulates or agrees to surrender or waive any right to damages against any railroad company, thereafter arising for personal injury or death, or whereby he ■agrees to surrender or waive in case he asserts the same, any other right whatsoever, and all such stipulation and agreements shall be void, and •every corporation, association or person violating or aiding or abetting in the violation of this section shall for each offense forfeit and pay to “the person wronged or deprived of his rights hereunder the sum of not less than fifty dollars nor more than five hundred dollars to be recovered in a civil action.”

The injury which is the predicate of the claim for damages in this •case was incurred before the execution of the contract of release, which is challenged by the demurrer. The language of the statute is specific that as to personal injury or death, the right to damages which cannot be released is one thereafter arising. The further language, “whereby he agrees to surrender or waive, in case he asserts the same, any other right whatsoever,” does not broadén the inhibition as to a claim for personal Injury. The contract in question does not come within the statute.

It is claimed it is void as being against public policy; that to permit a railroad company to enter into a contract of this kind would favor the employment of incompetent persons in the service of the corporation, and endanger the safety of the public.

We incline to think it is not so, for the reason that the railroad company would still be held to the rule that it is liable for failure to employ competent servants in all departments, and it ought not to be held against public policy to permit a railroad company to employ persons who have been injured in its service, in such capacity as they may be able to serve, as it often furnishes employment to persons who might not otherwise be able to obtain it.

It is said that the contract is without consideration and wants mutuality. There is attached to the answer a copy of a contract which is marked, “Exhibit A.” It is not made part of the answer, however, and cannot be looked to for the purpose of determining the demurrer. We can only look to the averments in the answer. We are free to say if the contract were pleaded so that the court could look to it, we would very seriously question whether that form of contract would impart any consideration. Re-employment for no stated time, only as may be satisfactory to said company — in no stipulated capacity — for no designated wage — does not imply mutuality.

But the averments in the answer are broader:

“In consideration of his re-employment by said defendant, the plaintiff released said defendant from any and all claims that he had against said company arising out of any injuries which he may have sustained by the accident set forth in the petition; that thereupon, in consideration of said release, the said defendant re-employed said plaintiff and continued to retain him in his employ until such time as the said plaintiff voluntarily left the employ of the defendant. ’ ’

The answer is not demurrable on that ground.

In the case of Judy v. Louderman, 48 Ohio St. 562, 563 [29 N. E. Rep. 181], the second syllabus reads:

“While it is necessary-that the consideration of a promise should be of some value, it is sufficient if it be such as could be valuable to the party promising; and the law will not enter into an inquiry as to the inadequacy of the consideration, but will leave the parties to be the sole judges of the benefits to be derived from their contracts, unless the inadequacy of consideration is so gross as of itself to prove fraud or imposition. ”

We do not think the contract, as averred in the answer, is of that character. The demurrer was rightly overruled, and the judgment of the court below is affirmed.

Sullivan and Dustin, JJ., concur.  