The opinion
CLARK, C. J.,
concurring in result: Tbis is not tbe usual case' in. which this defendant is setting up its so-called Relief Department as a defense in an action for damages for death or personal injuries caused by the negligence of the railroad company. But I cannot agree that the Relief Department of the defendant railroad in any particular resembles a fraternal order or a mutual benefit society. It is neither fraternal nor mutual.
In a fraternal order the members enter voluntarily; they prescribe the rules and regulations; the funds are managed by committees and officers appointed by themselves, and the rules and officers can be changed at their will. In this Railroad Relief Department the members are compelled to enter or lose their employment with the corporation. The committees are appointed and the rules and regulations are prescribed, not by the members, but by the employer, and can be changed by the latter only and at its will. The sole management is in the employer, who contributes none of the funds, but has sole charge and disposal of them, without responsibility to those who create the fund.
The motive in organizing this Relief Department is therefore totally dissimilar from the reasons which cause the organization of fraternal or mutual benefit societies. There is nothing which makes the latter a violation, of law. That the existence of this Relief Department is in violation of both State and Federal statutes passed for the protection of railroad employees has already been stated in my opinion in King v. R. R., ante, 44, with my reasons for so holding, which need not be repeated here. This so-called “Relief Department” is wholly and simply an ingenious device to relieve this railroad company of liability under the State and Federal “Fellow-servant Law” or “Employer’s Liability” act, and throw all liability for negligence upon the employees themselves by means of a relief fund which they are forced to raise out of their own wages.