The second as was to run for ten years. the allottee took an estate in fee, subject to the limitation that the land should be "inalienable for the period of twenty-five years" from date. This restriction bound the land for the time stated, whether in the hands of the allottee or his heirs. Bowling v. United States, supra. It put it beyond the power of him, or of them, to alienate the land, or any interest therein, in any 2. The lease here in controversy was manner except as permitted by the acts of made on March 25, 1905, for ten years from 1896 and 1897. See Taylor v. Parker, 235 date (paragraph (3)). The property was U. S. 42, ante, 121, 35 Sup. Ct. Rep. 22. The already subject to a lease, concededly valid, comprehensiveness of the restriction was for ten years from January 11, 1902. The modified only by the power to lease; and lease under which the appellee claims is while the allottee could make leases, as what is known as an "overlapping lease." provided in these acts, they gave him no It is not necessary to describe transactions power to dispose of his interest in the of this character, for they are abundantly land subject to the lease, or of any part illustrated in the record, which shows that of it. The rents and royalties were profit this allottee made six leases of the same issuing out of the land. When they ac- rights in less than five years, each for ten crued, they became personal property; but years from date, with the exception of the rents and royalties to accrue were a part last, which was for twenty years, and all of the estate remaining in the lessor. As reserving substantially the same rents and such, they would pass to his heirs, and not [82] royalties which were reserved in the to his personal representatives. 1 Washb. first lease at a time when the property had Real Prop. *337; Wright v. Williams, 5 not been prospected. The practice, to say Cow. 501. It is true that the owner of the the least, is an abnormal one, and it requires reversion, when unrestricted in his right no extended discussion to show that it would to convey, may sever the rent and grant facilitate abuses in dealing with ignorant it separately, but this is by virtue of his and inexperienced Indians. It is urged, freedom to deal with the estate in the land. however, that the manner of dealing with 2 Bl. Com. *176. the Indians, in gradually releasing them from guardianship and preparing them for complete independence, is for Congress to determine; that Congress has in this case authorized a lease for ten years; that this was a lease for ten years, and no longer, and hence was within the authority; and that, however wise it might have been to prohibit "overlapping leases," Congress did not so provide. It necessarily follows that the allottee in the present case, having no power to convey his estate in the land, could not pass title to that part of it which consisted of the rents and royalties. It is said that the leases contemplated the payment of sums of money, equal to the agreed percentage [81] of the market value of the minerals, and thus that the assignment was of these moneys; but the fact that rent is to be paid in money does not make it any the less a profit issuing out of the land. The further argument is made that the power to lease should be construed as implying the power to dispose of the rents to accrue. This is wholly untenable. The one is in no way involved in the other; the complete exercise of the authority which the statute confers would still leave the rents and royalties to accrue as part of the estate remaining in the lessor. It was the intent of Congress that the allottees, during the period of restriction, should be secure in their actual enjoyment of their interest in the land. Heckman v. United States, supra. The restriction was removed only to the extent specified; otherwise, the prohibition against alienation remained absolute. The first assignment of royalties, as above described (paragraph (7)), was made on August 16, 1902, of rents to accrue under the first lease, of January 11, 1902, which We are of the opinion that this is too short a view. The question is as to the scope of the authority given by Congress; that is, whether it did not extend simply to leases in possession, and should be taken not to include "leases in reversion." The allottee, as we have seen, is under an absolute restriction with respect to his reversion for a period of twenty-five years from the date of his patent. In the light of this restriction, and of the governmental policy which induced it, there is sound reason for construing the power as not authorizing anything more than a lease in possession, as well understood in the law. At common law, as the government points out, it was the established doctrine that a tenant for life, with a general power to make leases, could make only leases in possession, and not leases in reversion or in futuro. He was not authorized by such a power to make a lease to commerce "after the determination of a lease in being." Such a lease was its terms was to run until 1912, was unauthorized and void. As the United States was entitled to maintain the suit to cancel these instruments as transgressing the statutory restriction, it is unnecessary to consider the question whether, in the absence of such a violation, the government would have capacity to sue to redress alleged frauds committed against allottees. deemed to be "reversionary." Sussex v. Wroth, Cro. Eliz. pt. 1, p. 5; Shecomb v. Hawkins, Cro. Jac. 318, Yelv. 222; Winter v. Loveday, 1 Comyns, Rep. 37; Sugden, Powers, p. 749; 4 Greenleaf's Cruise's Dig. 165, 166; Taussig v. Reel, 134 Mo. 530, 544-547, 34 S. W. 1104; Woodfall, Land. & T. 19th ed. 239, 244, 245. "A general [83] power to lease for a certain number of years without saying either in possession or reversion, authorizes only a lease in possession, and not in futuro." Such a power receives the same construction as a power to make leases in possession. What is expressed in the one is understood in the other. Shaw v. Summers, 3 J. B. Moore Mr. Justice McReynolds took no part 196. This is not to say that an agreement in the consideration and decision of this for a new lease, at a fair rental, made shortly before the expiration of an existing lease, would not be sustained in equity. See Dowell v. Dew, 1 Younge & C. Ch. Cas. 345, 12 L. J. Ch. N. S. 158, 7 Jur. 117. The decree is reversed and the cause is remanded for further proceedings in conformity with this opinion. It is so ordered. case. GEORGE R. ROBINSON, Plff. in Err., V. PANY. (See S. C. Reporter's ed. 84-94.) Evidence admissibility under pleadings release. We are unable to see that the allottee under the power in question has any better BALTIMORE & OHIO RAILROAD COMposition. The protection accorded by Congress, through the restriction upon the alienation of the allottee's estate,-modified only by the power to lease as specified,was not less complete, because the limitation was not in the interest of a remainderman, but was for the benefit of the allottee himself as а ward of the Nation. The act of 1897 gives him authority "to lease" for a term not exceed ing the stated limit. Taking the words in their natural sense, they authorize leases in possession, and nothing more. The language does not compel the recognition of leases which are to take effect in possession many years after their execution, if, indeed, it could be assumed that they were not in tended to be concurrent. Such leases certainly violate the spirit of the statute, and according to the analogies of the law, they violate its letter. If, on the other hand, the lease be deemed to be a concurrent lease, that is, to be effective from its date, then it could only have that effect, being subject to the existing lease, as a grant or assignment of the reversion while the existing lease continued. Accordingly, it would entitle the lessee, as assignee of part of the reversion, to the rent reserved in the previous lease. Bacon Abr. title, Leases (N); Harmer v. Bean, 3 Car. & K. 307; Woodfall, Land. & T. 19th ed. 245, 246. But every conveyance [84] of the reversion, or of any interest therein, was clearly prohibited by the restriction. From every point of view, we must conclude that a lease for ten years, made in 1905, subject to an existing lease for ten years, of the same property, which by 1. An agreement of a Pullman Company car porter to release all railway cominjuries sustained by him, if a defense, is panies hauling the car from all liability for properly admitted in evidence under the plea of not guilty in a suit against such a railway company to recover damages for injuries sustained by such porter in a collision due to the railway company's negligence, notwithstanding an earlier ruling sustaining a demurrer to a special plea setting up the release. [For other cases, see Evidence, XIII. a, în emption. 2. A provision in a contract of employ ment entered into by a Pullman Co any companies over whose lines the cars of the car porter by which he releases all railway Pullman Company may be operated while he is traveling in its service from all claims for liability of any nature or character whatsoever on account of any personal instatute, and is a complete bar to any rejury or death is valid unless condemned by NOTE. As to contract exempting railway company from liability for negligent injury to sleeping car employees or others sustaining a similar relation to the company-see notes to Denver & R. G. R. Co. v. Whan, 11 L.R.A. (N.S.) 432, and Coleman v. Pennsylvania R. Co. 50 L.R.A. (N.S.) 432. On the constitutionality, application, and effect of the Federal employers' liability act -see notes to Lamphere v. Oregon R. & Nav. Co. 47 L.R.A. (N.S.) 38, and Seaboard Air Line R. Co. v. Horton, L.R.A. 1915C, 1. covery from the railway hauling the car | Co. v. Ray, 101 Tenn. 10, 46 S. W. 554; because of injuries received by such porter Baltimore & O. S. W. R. Co. v. Voigt, 176 U. in a collision due to the railway company's | S. 498, 520, 44 L. ed. 560, 570, 20 Sup. Ct. negligence. [For other cases, see Carriers, II. b, 7, in Di gest Sup. Ct. 1908.] Master and servant - employers' liability -contract exemption. Rep. 385; O'Brien v. Chicago & N. W. R. Co. Plaintiff was an employee of both companies. Baltimore & O. S. W. R. Co. v. Voigt, 176 S. 498, 520, 44 L. ed. 560, 570, 20 Sup. Ct. Rep. 385; Oliver v. Northern P. R. Co. 196 Fed. 432; Ward v. Thompson, 22 How. 330, 16 L. ed. 249; McKinney, Fellow Servants, p. 46; Cleveland, C. C. & I. R. Co. v. Schneider, 45 Ohio St. 678, 17 N. E. 321, 12 Am. Neg. Cas. 428; Swainson v. Northeastern R. Co. L. R. 3 Exch. Div. 341, 47 L. J. Exch. N. S. 372, 38 L. T. N. S. 201, 26 Week. Rep. 413; Denver & R. G. R. Co. v. Gustafson, 21 Colo. 393, 41 Pac. 505; Gaines v. Bard, 57 Ark. 615, 38 Am. St. Rep. 266, 22 S. W. 570. 3. A porter in charge of one of the cars of the Pullman Company, which supplies a distinct and separate service performed by its own employees under its own manage-U. ment, subject only to the exigencies of railway transportation, and to such control by railway companies as is essential to enable them to perform their functions as common carriers, may stipulate in his contract of employment to exempt any railway company hauling the cars from liability for injuries sustained by him, notwithstanding the prohibition of the employers' liability act of April 22, 1908 (35 Stat. at L. 65, chap. 149, Comp. Stat. 1913, § 8657), § 5, against contracts intended to exempt carriers from the liability created by that act. since he is not an employee of the railway company within the meaning of that act, and does not become such because, as an accommodation to passengers boarding the car in the early morning hours, he col-215, 53 L. ed. 480, 29 Sup. Ct. Rep. 252; lects their railway tickets and fares, after wards turning them over to the train conductor. [For other cases, see Master and Servant, II. a, in Digest Sup. Ct. 1913.] [No. 167.] Plaintiff became pro hac vice an employee of the railroad company. Standard Oil Co. v. Anderson, 212 U. S. Brooks v. Central Sainte Jeanne, 228 U. S. 688, 57 L. ed. 1025, 33 Sup. Ct. Rep. 700; Morgan v. Smith, 159 Mass. 571, 35 N. E. 101; Hasty v. Sears, 157 Mass. 123, 34 Am. St. Rep. 267, 31 N. E. 759; Johnson v. Lindsay [1891] A. C. 371, 16 L. J. Q. B. N. S. 90, 65 L. T. N. S. 97, 40 Week. Rep. 405, 55 J. P. Argued March 3 and 4, 1915. Decided April 644; Rourke v. White Moss Colliery Co. L. 5, 1915. IN ERROR to the Court of Appeals IN to of judgment which affirmed a judgment of the Supreme Court of the District in favor of defendant in a personal-injury action. Af. firmed. See same case below, 40 App. D. C. 169, L.R.A.1915D, 510. The facts are stated in the opinion. Mr. Levi H. David argued the cause, | and, with Mr. Alexander Wolf, filed a brief for plaintiff in error: Plaintiff was an employee of the railway company, either as matter of law or fact. | R. 2 C. P. Div. 205, 46 L. J. C. P. N. S. 283, 36 R. 6 C. P. 24, 40 L. J. C. P. N. S. 26, 23 L. T. N. S. 557, 19 Week. Rep. 104; Missouri P. R. Co. v. Jones, 75 Tex. 151, 16 Am. St. Rep. 879, 12 S. W. 972; Cleveland, C. C. & I. R. Co. v. Schneider, 45 Ohio St. 678, 17 N. E. | 321, 12 Am. Neg. Cas. 428; Westover v. Hoover, 88 Neb. 201, L.R.A.—, - 129 N. Pennsylvania Co. v. Roy, 102 U. S. 451, 26 W. 285, 3 N. C. C. A. 471; Thomp. Neg. 2d L. ed. 141, 10 Am. Neg. Cas. 593; Williams ed. § 3742; Missouri, K. & T. R. Co. v. Reav. Pullman Palace Car Co. 40 La. Ann. 417, sor, 28 Tex. Civ. App. 302, 68 S. W. 332; 8 Am. St. Rep. 538, 4 So. 85, 8 Am. Neg. Vary v. Burlington, C. R. & M. R. Co. 42 Cas. 302; Thorpe v. New York C. & H. R. Iowa, 246; Hannigan v. Union Warehouse R. Co. 76 N. Y. 402, 32 Am. Rep. 325; Co. 3 App. Div. 618, 73 N. Y. S. R. 753, 38 Dwinelle v. New York C. & H. R. R. Co. 120 | N. Y. Supp. 72; Mound City Paint & Color N. Y. 117, 8 L.R.A. 224, 17 Am. St. Rep. 611, Co. v. Conlon, 92 Mo. 229, 4 S. W. 922, 16 24 N. E. 319; Louisville, N. & G. S. R. Co. | Am. Neg. Cas. 435; Atkyn v. Wabash R. v. Katzenberger, 16 Lea, 380, 57 Am. Rep. Co. 41 Fed. 193. 232, 1 S. W. 44; Nashville, C. & St. L. R. Co. v. Lillie, 112 Tenn. 341, 105 Am. St. Rep. 947, 78 S. W. 1055; Louisville & N. R. If it be held that the uncontradicted evidence submitted by the plaintiff did not show him to have been an employee of the the Pullman Company to be received in evidence. defendant, or the employee of defendant and the Pullman Company, as a matter of law, then the evidence was sufficient to be sub- Brown v. Baltimore & O. R. Co. 6 App. mitted to the jury. D. C. 242; Shafer v. Stonebraker, 4 Gill & J. Northwestern Union Packet Co. v. Mc-347; Philadelphia & T. R. Co. v. Stimpson, Cue, 17 Wall. 508, 21 L. ed. 705; Missouri, 14 Pet. 448, 10 L. ed. 535; Tietz v. Tietz, 90 K. & T. R. Co. v. West, 232 U. S. 682, 58 | Wis. 66, 62 N. W. 939; Patton v. Fox, 179 L. ed. 795, 34 Sup. Ct. Rep. 471; Tennessee Mo. 533, 78 S. W. 804. Coal, Iron & R. Co. v. Hayes, 97 Ala. 201, 12 So. 98; Dwinelle v. New York C. & H. R. R. Co. 120 N. Y. 118, 8 L.R.A. 224, 17 Am. St. Rep. 611, 24 N. E. 319; Sacker v. Waddell, 98 Md. 50, 103 Am. St. Rep. 374, 56 Atl. 399, 15 Am. Neg. Rep. 324. The plaintiff in error was not a voluntcer in the collection of railroad transportation from its passengers. Brooks v. Central Sainte Jeanne, 228 U. S. 688, 57 L. ed. 1025, 33 Sup. Ct. Rep. 700; Pullman Palace Car Co. v. Lee, 49 Ill. App. 77. The alleged release is no bar. 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 employment 1 with the Pullman [90] Company, by which he released all railroad cor Standard Oil Co. v. Anderson, 212 U. S. 221, 53 L. ed. 483, 29 Sup. Ct. Rep. 252;porations over whose lines the cars of that Baltimore & O. S. W. R. Co. v. Voigt, 176 U. S. 513, 44 L. ed. 567, 20 Sup. Ct. Rep. 385; O'Brien v. Chicago & N. W. R. Co. 116 Fed. 502. 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 verMr. John W. Yerkes argued the cause, dict in favor of the defendant, and the judgand, with Messrs. John J. Hamilton and ment, [91] entered accordingly, was afGeorge E. Hamilton, filed a brief for defend-firmed by the court of appeals. 40 App. D. ant in error: The legislative intent must be taken as expressed by the words which the legislature itself employed. Shaw v. Northern Pennsylvania R. Co. 101 U. S. 565, 25 L. ed. 894; Bate Refrigerating Co. v. Sulzberger, 157 U. S. 36, 37, 39 L. ed. 611, 15 Sup. Ct. Rep. 508; Denn ex dem. Scott v. Reid, 10 Pet. 524, 9 L. ed. 519. Plaintiff was not an employee of the defendant railroad. McDermon v. Southern P. Co. 122 Fed. 669; 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; Hughson v. Richmond & D. R. Co. 2 App. D. C. 98; Denver & R. G. R. Co. v. Whan, 39 Colo. 230, 11 L.R.A. (N.S.) 432, 89 Pac. 39, 12 Ann. Cas. 732; Missouri, K. & T. R. Co. v. Blalack, 105 Tex. 297, 147 S. W. 559; Missouri, K. & T. R. Co. v. West, 38 Okla. 581, 134 Pac. 655; Missouri, K. & T. R. Co. v. West, 232 U. S. 682, 58 L. ed. 795, 34 Sup. Ct. Rep. 471; Davis v. Chesapeake & O. R. Co. 122 Ky. 528, 5 L.R.A. (N.S.) 458, 121 Am. St. Rep. 481, 92 S. W. 339, 12 Ann. Cas. 723; Jones v. St. Louis Southwestern R. Co. 125 Mo. 666, 26 L.R.A. 718, 46 Am. St. Rep. 514, 28 S. W. 883; McCluskey v. Cromwell, 11 N. Y. 596. 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; 1 The material portions of the contract are as follows: "Be it known, That I, the undersigned, hereby accept employment by, and enter into, or continue from this date, in the service of the Pullman Company upon the fol lowing express terms, conditions and agreements, which in consideration of such employment and the wages thereof I do here. by make with said the Pullman Company, to wit: "First. So long as I shall remain in said employment and service, I will fully comThe trial court committed no error in al-ply with all regulations, rules and orders of lowing the contract between the plaintiff and said company or its agents, issued for the Santa Fe, P. & P. R. Co. v. Grant Bros. | plaintiff comes within the statutory descrip- tion; 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 Pullman 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 reve 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 negligence 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 obliga-nue from sales of seats and berths in the tion of the railroad company, in the absence of special contract, to one in the plaintiff's situation by [92] reason of the fact that he was lawfully on the train, although not a passenger. The inquiry rather is whether the government of its employees, go wherever I may be required in said service, and well, faithfully and honestly perform all duties, assigned to me. "Second. My wages shall at all times be calculated and paid at the monthly rate per day for the number of days I shall have been actually employed, and I may quit or resign, or may be suspended or discharged from such employment and service, at any time, or at any place, without previous notice. 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 pany in cases provided for in such contracts, and I do hereby ratify all such contracts made or to be made by said the Pullman Company and do agree to protect, indemnify and hold harmless said the Pullman Company with respect to any and all sums of money it may be compelled to pay, or liability it may be subject to, under any such contract, in consequence of any injury or death happening to me, and this agreement may be assigned to any such corporation or person and used in its defense. "Sixth. I will obey all rules and regulations made or to be made for the government of their own employees by the corporations or persons over whose lines of railroad the cars of said the Pullman Com "Fourth. I assume all risks of accidents or casualties by railway travel or otherwise, incident to such employment and service, and hereby, for myself, my heirs, executors, administrators or legal representatives, forever release, acquit and discharge the Pull-pany may be operated while I am traveling man Company, and its officers and employees, from any and all claims for liability of any nature or character whatsoever, on account of any personal injury or death to me in such employment or service. over said lines in the employment or service of said the Pullman Company; and I expressly declare that while so traveling I shall not have the rights of a passenger with respect to such corporations or persons, which rights I do expressly renounce; and I hereby, for myself, my heirs, executors, administrators or legal representatives, forever release, acquit and discharge any and all such corporations and persons from all claims for liability of any nature or character whatsoever on account of any personal injury or death to me while in said employ "Fifth. I am aware that said the Pullman Company secures the operation of its cars upon lines of railroad, and hence my opportunity for employment, by means of contracts, wherein said the Pullman Company agrees to indemnify the corporations or persons owning or controlling such lines of railroad against liability on their part to the employees of said the Pullman Comment or service." |