April 10, 1936, petitioner Duncan, while performing duties as respondent's employee, fell from a locomotive and was injured. Since at the time he was working for a 'common carrier by railroad' and in interstate commerce, the right to recover damages is governed by the Federal Employers' Liability Act, 35 Stat. 65, 45 U.S.C.A. § 51 et seq. Sixteen months later, August 13, 1937, Duncan was still suffering from his injuries, his wife was in the hospital, and he needed money. On that day, upon Duncan's signing an instrument presented to him by the company's claim agent, he was paid $600 'for living and other expenses pending further developments as to the extent and effect of said injuries and negotiations for settlement of (his) claim.' The instrument also stated that:
'In consideration of said payment of $600.00, I agree with said Trustee that I will endeavor, in good faith, to adjust and settle any claim I may have for my injuries without resorting to litigation, but I agree that if my claim is not so adjusted, and I elect to bring suit, I will first return the said sum of $600.00 to said Trustee and said return shall be a prerequisite to the filing and maintenance of any such suit.'
About eight months later, April 4, 1938, negotiations for settlement not having been successful, Duncan, without returning the $600, sued the respondent in a Missouri state court, charging that his injuries resulted from the negligence of the respondent's servants or agents. Among other pleadings the respondent filed a plea in abatement alleging that 'this suit and action have been begun and commenced by plaintiff without the pre-requisite return to defendant trustee of said sum of $600, * * * and this action is pre-mature and should be dismissed by the Court.' Duncan replied that the agreement, so far as it purported to create a condition precedent to bringing suit, was void under Section 5 of the Federal Employers' Liability Act, 35 Stat. 65, 66, which in part provides:
'Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this Act (chapter), shall to that extent be void * * *.' The trial judge held the agreement did not bar Duncan's suit, but submitted the issues of negligence to the jury with instructions that if their verdict should be for him the railroad would be entitled to a credit of $600 and interest. The verdict was for Duncan and after appropriate subtraction for the prior payment to him, judgment for $5,000 was entered in his favor. The Springfield Court of Appeals reversed, holding that the invalidating effect of Section 5 does not extend to contracts made after an employee is injured, 146 S.W.2d 112, and the Missouri Supreme Court declined to review its action.
In Philadelphia, Baltimore & Washington R. Co. v. Schubert, 224 U.S. 603, 611, 32 S.Ct. 589, 591, 56 L.Ed. 911, this Court referred to Section 5 as follows:
'The evident purpose of Congress was to enlarge the scope of the section, and to make it more comprehensive by a generic, rather than a specific, description. It thus brings within its purview 'any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act.' It includes every variety of agreement or arrangement of this nature * * *.'
While this interpretation is broad enough to bring within Section 5 contracts made after as well as before the injury, the agreement at issue in the Schubert case was made prior to the injury, and the actual decision therefore does not control agreements which, like that now before us, are made after the injury has occurred. Moreover, several state courts have expressed the view that contracts made after the injury has occurred are not invalidated by Section 5. See, e.g., Ballenger v. Southern R. Co., 106 S.C. 200, 203, 90 S.E. 1019; Patton v. Atchison, T. & S.F.R. Co., 59 Okl. 155, 156, 158 P. 576; Lindsay v. Acme Cement Plaster Co., 220 Mich. 367, 377, 190 N.W. 275; Carlson v. Northern Pac. R. Co., 82 Mont. 559, 568, 268 P. 549, 58 A.L.R. 1304.
Because of this divergence of judicial opinion as to the interpretation of Section 5, and because the scope of Section 5 is of fundamental importance in the administration of the Federal Employers' Liability Act, we granted certiorari.