Atl. Greyhound Lines v. Skinner

• Decision Date: 10 April 1939
• Citation: 2 S.E.2d. 441
• Court: Virginia Supreme Court
• Parties: ATLANTIC GREYHOUND LINES. v. SKINNER.

2 S.E.2d. 441

ATLANTIC GREYHOUND LINES.

v.SKINNER.

Supreme Court of Appeals of Virginia.

April 10, 1939.

HOLT, J., CAMPBELL, C. J., and EGGLESTON, J., dissenting.

Error to Law and Equity Court of City of Richmond, Part 2; Frank T. Sutton, Jr., Judge.

Action by Cliff R. Skinner, administrator of the estate of J. P. Hamilton, deceased, against the Atlantic Greyhound Lines, for damages for wrongful death of J. P. Hamilton, who was killed while a passenger on a bus operated by the defendant. To review a judgment for the plaintiff, the defendant brings error.

Reversed and remanded for new trial.

Argued before CAMPBELL, C. J, and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Leith S. Bremner, Thomas O. Moss, and Robert Lewis Young, all of Richmond, for plaintiff in error.

Emanuel Emroch and B. Harrison Turn-bull, both of Richmond, and Hugh A. Locke, of Birmingham, Ala, for defendant in error.

HUDGINS, Justice.

This action was instituted to recover damages for the wrongful death of J. P. Hamilton, who was killed while a passenger on a bus operated by the Atlantic Greyhound Lines from Bristol, Tenn, through Virginia, to Washington, D. C. The trial resulted in a verdict for $7,500 on which judgment was entered. Defendant in the trial court sought and obtained this writ of error, which brings the proceedings before this court for review.

While there are other assignments of error, the two major questions presented are: (1) Whether Hamilton was a passenger for hire at the time he was killed, and (2) whether the evidence, as a matter of law, convicts the defendant carrier of gross, wanton or wilful negligence.

The Southeastern Greyhound Lines, another separate and independent interstate carrier of passengers, acquired in Philadelphia six new buses to be used by it on routes running out of Birmingham, Alabama. In June, 1936, this carrier applied to and received from defendant carrier six one-way passes over its lines from Bristol, Tenn, to Washington, D. C, to be used by the six bus drivers whom the Southeastern Greyhound Lines expected to send from Birmingham to Philadelphia for the new buses.' J. P. Hamilton, one of the six employees of the Southeastern Greyhound Lines en route to Philadelphia on this mission, was killed when one of defendant's buses ran off the highway and turned over near Natural Bridge.

When Hamilton entered the bus of the defendant carrier at Bristol, he offered for passage one of these six passes. His name was signed to the following stipulations and conditions printed on the back: "In consideration of the issue of this free ticket, I hereby assume all risk of accident and injury and expressly agree that Atlantic Greyhound Lines, Greyhound Lines, and/or associated companies, or any other person, firm or corporation, operating its lines, or over or upon the same, shall not be liable, under any circumstances, to me, or persons claiming under or through me, whether occasioned by negligence of its agents or employees or otherwise, for injury to me, or loss or damage to my property or property in my possession, and further agree that as to transportation under this ticket, said company shall not be regarded as a common carrier, either of passengers or goods. I further warrant that I am qualified to accept this ticket, and that I will not use same in violation of the State or Federal Laws. I further agree not to use this free ticket to the exclusion of fare-paying passengers. If presented by anyone other than myself said company may take up and cancel this ticket, and collect full fare. By my signature hereon I accept the foregoing conditions and adopt the statements therein contained."

When these stipulations and conditions were offered in defense of the action, the trial court held them void and submitted the case to the jury on the theory that Hamilton was a passenger for hire, and entitled to that high degree of care which a common carrier owes to such passengers.

It is conceded that J. P. Hamilton was on an interstate journey at the time of the accident, hence the validity of the conditions on the pass must be determined solely by Federal Law. Williamson v. S. A. L. Ry., 136 Va. 626, 118 S.E. 255; McGuire v. A. C. L. R. Co., 136 Va. 382, 118 S.E. 225; Manicri v. S. A. L. Ry. Co., 147 Va. 415, 137 S.E. 496; and Southern Ry. v. Wilmouth, 154 Va. 582, 153 S.E. 874.

The 1935 National Motor Carrier Act, part 2, § 217(b), 49 U.S.C.A. § 317(b), provides as follows: "No common carrier by motor vehicle shall charge or demand or collect or receive a greater or less or different compensation for transportation or for any service in connection therewith between the points enumerated in such tariff than the rates, fares, and charges specified in the tariffs in effect at the time; and no such carrier shall refund or remit in any manner or by any device, directly or indirectly, or through any agent or broker or otherwise, any portion of the rates, fares, or charges so specified, or extend to any person any privileges or facilities for transportation in interstate or foreign commerce except such as are specified in its tariffs: Provided, That the provisions of sections 1 (7) and 22 (1) of this title shall apply to common carriers by motor vehicles subject to this chapter."

The reference to other sections in the above statute is to the Interstate Commerce Act, U.S.C.A., Title 49, originally known as the Hepburn Act, adopted June 29, 1906. Prior to the adoption of this act by Congress, the United States Supreme Court had declared that it was contrary to sound public policy to permit a common carrier to stipulate for exemption from liability for the negligence of itself or its servants; that the rule applied both to the carriers of goods and the carriers of passengers for hire, "and with a special force to the latter;" and that a passenger traveling on a pass given for the purpose of taking care of livestock on the train was a passenger for hire. New York C. R. Co. v. Lock-wood, 17 Wall. 357, 21 L.Ed. 627; Liverpool & Great Western Steam Co. v. Phenix Insurance Co., 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788. This rule of public policy did not include a passenger to whom transportation was gratuitously furnished. As to such a passenger, such stipulations against negligence were valid. Northern Pacific Ry. Co. v. Adams, 192 U.S. 440, 24 S.Ct.'408, 48 L.Ed. 513; Boering v. Chesapeake Beach Ry. Co, 193 U.S. 442, 24 S. Ct. 515, 48 L.Ed. 742. In Grand Trunk R. Co. v. Stevens, 95 U.S. 655, 24 L.Ed. 535, it was held that a person traveling on a pass and making the journey for the mutual interests of the carrier and himself was a passenger for hire.

These principles were firmly established prior to June, 1906, when the Hepburn Act was adopted, the pertinent parts of which act, as amended, now provide: "No common carrier subject to the provisions of this chapter, shall, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except to its employees and their families, its officers, agents, surgeons, physicians, and attorneys at law * * * to necessary caretakers of livestock, poultry, milk, and fruit; to employees on sleeping cars.express cars, and to linemen of telegraph and telephone companies * * * to newsboys on trains, baggage agents, witnesses attending any legal investigation in which the common carrier is interested, * * *: Provided, That this provision shall not be construed to prohibit the interchange of passes for the officers, agents, and employees of common carriers, and their families; * * *: And provided further, That this provision shall not be construed to prohibit the privilege of passes or franks, or the exchange thereof with each other, for the officers, agents, employees, and their families of such telegraph, telephone and cable lines, and the officers, agents, employees and their families of other common carriers subject to the provisions of this chapter * * *. Any common carrier violating this provision shall be deemed guilty of a misdemeanor and for each offense, on conviction, shall pay to the United States a penalty of not less than $100 nor more than $2,000, and any person, other than the persons excepted in this provision, who uses any such interstate free ticket, free pass, or free transportation shall be subject to a like penalty." (Italics supplied.) 49 U.S.C.A. § K7).

This act, as applied to the question of transportation on a pass given to the wife of an employee who was injured on an interstate journey, was first construed in Charleston & Western Carolina Ry. Co. v. Thompson, 234 U.S. 576, 34 S.Ct. 964, 965, 58 L.Ed. 1476. In an opinion delivered by Mr. Justice Holmes, this was said: "The main question is whether, when the statute permits the issue of a 'free pass' to its employees and their families, it means what it says. The railroad was under no obligation to issue the pass. It may be doubted whether it could have entered into one, for then the services would be the' consideration for the duty and the pass, and by § 6 [49 U.S.C.A. § 6] it was forbidden to charge 'a greater or less or different compensation' for transportation of passengers from that in its published rates. The antithesis in the statute is between the reasonable charges to be shown in its schedules and the free passes which it may issue only to those specified in the act. To most of those enumerated the free pass obviously would be gratuitous in the strictest sense, and when all that may receive them are grouped in a single exception, we think it plain that the statute contemplates the pass as gratuitous in the same sense to all. It follows, or rather is saying the same thing in other words, that even on the improbable speculation that the possibility of getting an occasional free pass entered into the motives of the employee in working for the road, the law did not contemplate his work as a conventional inducement for the pass, but, on the contrary,...