333 U.S. 445 (1948), 400, Francis v. Southern Pacific Co.

Docket Nº:No. 400
Citation:333 U.S. 445, 68 S.Ct. 611, 92 L.Ed. 798
Party Name:Francis v. Southern Pacific Co.
Case Date:March 15, 1948
Court:United States Supreme Court

Page 445

333 U.S. 445 (1948)

68 S.Ct. 611, 92 L.Ed. 798



Southern Pacific Co.

No. 400

United States Supreme Court

March 15, 1948

Argued February 5, 1948



1. Basing jurisdiction on diversity of citizenship, certain minor children sued an interstate railroad in a federal court in Utah to recover damages for the death of their father, an employee of the railroad, who was killed in Utah while riding the railroad as an interstate passenger on a free pass, not in connection with his duties as an employee. The pass provided that the user assumed all risk of injury and absolved the railroad from any liability therefor. Under instructions withholding an issue of the railroad's ordinary negligence and submitting only an issue of its wanton negligence, the jury found for the railroad.

Held: judgment for the railroad affirmed. Pp. 446-450.

(a) In view of a subsequent decision of the Supreme Court of Utah to similar effect, this Court cannot say that the Circuit Court of Appeals committed plain error in holding that defenses which would have been available in a suit by the decedent were available in a suit by the heirs on a separate and distinct cause of action created by Utah law, and therefore this Court will not overrule that holding under Erie R. Co. v. Tompkins, 304 U.S. 64. Pp. 447-448.

(b) Under the Hepburn Act, as amended by the Transportation Act of 1940, the right of an employee of an interstate railroad to recover damages for injuries sustained while riding on a free pass is governed by federal law. Pp. 448-450.

Page 446

(c) The well settled federal rule sustaining waivers of liability for ordinary negligence contained in free passes issued to employees by interstate railroads has become part of the warp and woof of the Hepburn Act, as amended by the Transportation Act of 1940. Pp. 448-450.

2. After a verdict has been rendered in a civil case in a federal court, it is too late to object for the first time that the jury was selected from a panel from which persons who work for daily wages were intentionally and systematically excluded. Pp. 450-451.

162 F.2d 813, affirmed.

In a suit by minor children of a railroad employee to recover damages for his death while traveling on a free pass as an interstate passenger, the Circuit Court of Appeals affirmed a judgment for the defendant. 162 F.2d 813. This Court granted certiorari. 332 U.S. 835. Affirmed, p. 451.

DOUGLAS, J., lead opinion

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Petitioners are the minor children of Jack R. Francis, who was killed while riding as an interstate passenger on one of respondent's [68 S.Ct. 612] trains. They brought this suit, acting through their general guardians, to recover damages on account of his death. Jurisdiction in the federal court was founded on diversity of citizenship. The trial judge submitted to the jury only the question of respondent's wanton negligence. The error alleged is his refusal to submit to the jury the issue of ordinary negligence. The jury returned a verdict for respondent. The Circuit Court of Appeals affirmed. 162 F.2d 813.

Page 447

The Circuit Court of Appeals held that Utah law creates a right of action in the heirs for the wrongful death of the decedent, and that the action is distinct from any which decedent might have maintained had he survived. But the court held that the action is maintainable only where the decedent could have recovered damages for his injury if death had not ensued. In this case, the decedent, an employee of respondent, was riding on a free pass not in connection with any duties he had as an employee, but as a passenger only. The Circuit Court of Appeals therefore held as a matter of federal law that respondent would not have been liable to decedent for damages caused by ordinary negligence, relying on Northern Pacific R. Co. v. Adams, 192 U.S. 440. It concluded that respondent had the same defense against the heirs. We granted the petition for a writ of certiorari to reexamine the relationship between local law and federal law respecting the liability of interstate carriers under free passes.

In Van Wagoner v. Union Pac. R. Co., 186 P.2d 293, 303, decided after the petition for certiorari in the present case was filed, the heirs sued to recover damages for the death of the decedent in a grade crossing accident. The court held that a defense of contributory negligence which would have barred recovery by the decedent likewise bars the heirs. In view of this ruling by the Utah Supreme Court we cannot say that the Circuit Court of Appeals committed plain error in holding that respondent had the same defenses against petitioners as it would have had against the decedent.1 Yet it requires such showing of error for us to overrule the lower courts in

Page 448

their applications of Erie R. Co. v. Tompkins, 304 U.S. 64. See Palmer v. Hoffman, 318 U.S. 109, 118; MacGregor v. State Mutual Life Assur. Co., 315 U.S. 280; Steele v. General Mills, 329 U.S. 433, 439. Cf. Wichita Royalty Co. v. City Nat. Bank, 306 U.S. 103.

The free pass in the present case stated that

the user assumes all risk of injury to person or property and of loss of property whether by negligence or otherwise, and absolves the issuing company . . . from any liability therefor.

In Northern Pacific R. Co. v. Adams, supra, a similar provision in a free pass was sustained as a defense to an action brought under an Idaho statute by the heirs of a passenger.2 That was in [68 S.Ct. 613] 1904. The Adams

Page 449

decision was soon followed by Boering v. Chesapeake Beach R. Co., 193 U.S. 442. Then, in 1906, came the Hepburn Act, which, under pain of a criminal penalty, prohibited a common carrier subject to the Act from issuing a "free pass" except, inter alia, to "its employees and their families." 34 Stat. 584, 49 U.S.C. § 1(7). Thereafter, in 1914, the Court held that the rule of the Adams case was applicable under the federal statute, and that the "free pass" was nonetheless a gratuity, though issued to an employee of the carrier. Charleston & W.C. R. Co. v. Thompson, 234 U.S. 576. Kansas City So. R. Co. v. Van Zant, 260 U.S. 459, followed in 1923 and held that the liability of an interstate carrier to one riding on a "free pass" was determined not by state law, but by the Hepburn Act. The Court said, 260 U.S. at 468,

The provision for passes, with its sanction in penalties, is a regulation of interstate commerce, to the completion of which the determination of the effect of the passes is necessary. We think, therefore, free passes in their entirety are taken charge of not only their permission and use, but the limitations and conditions upon their use; or, to put it another way, and to specialize, the relation of their users to the railroad which issued them, the fact and measure of responsibility the railroad incurs by their issue, and the extent of the right the person to whom issued acquires, are taken charge of.

For years, this has been the accepted and well settled construction of the Hepburn Act. During that long period, it stood unchallenged in this Court and, so far as we can ascertain, in Congress, too. Then came the Transportation Act of 1940, 54 Stat. 898, 900, with its comprehensive revision of the statutes of which the Hepburn Act was part. Amendments were made to the free pass provision of the Act to permit free transportation of additional classes of persons.3 No other amendments to the

Page 450

free pass provision were made. It was reenacted without further change or qualification. In view of this history, we do not reach the question of what construction we would give the Hepburn Act were we writing on a clean slate. The extent to which we should rely upon such history is always a difficult question which has frequently troubled the Court in many fields of law and with varied results. See Girouard v. United States, 328 U.S. 61, 69-70; Helvering v. Hallock, 309 U.S. 106, 119, 123. But, in the setting of this case, we find the long and well settled construction of the Act plus reenactment of the free pass provision without change of the established interpretation most persuasive indications that the rule of the Adams, Thompson, and Van Zant cases has become part of the warp and woof of the legislation. See Missouri v. Ross, 299 U.S. 72, 75; United States v. Elgin, J. & E. R. Co., 298 U.S. 492, 500; United States v. Ryan, 284 U.S. 167, 175; Hecht v. Malley, 265 U.S. 144, 153; Electric Storage Battery Co. v. Shimadzu, 307 U.S. 5, 14. Any state law which conflicts with this federal rule governing interstate carriers must therefore give way by virtue of the Supremacy Clause. For it was held in the Van Zant case that the free pass provision of the Hepburn Act was a [68 S.Ct. 614] regulation of interstate commerce "to the completion of which the determination of the effect of the passes is necessary." Thus, there is no room for the application of Erie R. Co. v. Tompkins, supra, on this phase of the case. The Van Zant case arose not in a lower federal court, but in a state court; the holding was not a declaration of a "general commercial law," but a ruling that "[the] incidents and consequences" of the pass were controlled by the federal act "to the exclusion of state laws and state policies." 260 U.S. at 469.

Petitioners contend that the jury panel from which the jury in this case was selected was drawn contrary to Thiel v. Southern Pacific Co., 328 U.S. 217. We do not stop

Page 451

to inquire into the merits of the claim. The objection was made for the first time in the motion for a new trial. It seems to have been an afterthought, as the Thiel case was decided a few weeks after the verdict of the jury in...

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