Bell v. Houston & S. R. Co.

• Decision Date: 20 January 1913
• Docket Number: 19,275
• Citation: 60 So. 1029,132 La. 88
• Parties: BELL v. HOUSTON & S. R. CO. et al
• Court: Louisiana Supreme Court

60 So. 1029

132 La. 88

BELL v. HOUSTON & S. R. CO. et al

No. 19,275

Supreme Court of Louisiana

January 20, 1913

Rehearing Denied February 17, 1913

SYLLABUS

(Syllabus by the Court.)

A person at a railroad depot for the purpose of mailing a letter on the mailing car is neither a trespasser nor a licensee; and the railroad owes to him the same obligation of safe passage to and from the train as it owes to a passenger. Hale v. Grand Trunk Railroad Co., 60 Vt. 605, 15 A 300, 1 L. . A. 187; Atchison, Topeka & Santa Fe Railway Co., Plaintiff in Error, v. Frank J. Jandera, Defendant in Error, 24 Okl. 106, 104 P. 339, 24 L. . A. 535, 20 Ann. Cas. 316.

'To come under an implied invitation, as distinguished from a mere license, the visitor must come for a purpose connected with the business in which the occupant is engaged, or which he permits to be carried on there. There must at least be some mutuality of interest in the subject to which the visitor's business relates, although the particular thing which is the subject of the visit may not be for the benefit of the occupant.' Plummer v. Dill, 156 Mass. 426, 31 N.E. 128, 32 Am. St. ep. 463.

Where a railroad company prepares a strip of land upon which it discharges passengers in front of its depot, which strip of land has been used by the public for years as the proper approach to and the recognized way of departure from its cars, it is under obligation to one who has business to transact with or on the train of the company to use a reasonable degree of care to keep said strip of land in a safe condition.

'Such invitation as imposes on the company the duty of ordinary care is implied, where by some act or designation of the company persons are led to believe that the way was intended to be used by travelers or others having lawful occasion to go that way; and the company is under obligation to use ordinary care to keep it free from danger.' Elliott on Railroads, ss 1154, 1248.

Wise, Randolph & Rendall and A. B. Freyer, all of Shreveport, for appellants.

Elam & Lee, of Mansfield, for appellee.

MONROE J., dissenting.

OPINION

SOMMERVILLE, J.

Plaintiff sues the Houston & Shreveport Railroad Company and the Houston, East & West Texas Railroad Company, in solido, for the sum of $ 15,500, with interest, as damages for personal injuries suffered by him through the fault of said defendants at their depot at Logansport, La. There was judgment in favor of plaintiff and against the defendants, in solido, in the sum of $ 10,000, with interest. Both defendants have appealed.

Petitioner alleges in his petition that he went to the depot of the defendant company for the purpose of mailing a letter on the train which was due at that time; that after mailing his letter upon said train he turned to walk over the route and passage provided by said company for passengers, and while walking forward he was either struck by some projection on the moving cars, or, in the constricted passage between the cars, he walked into some small projection on the standing cars; that he was hurled to the ground and under the moving cars, and had one of his legs broken and mangled below the knee by the train passing over it; that his leg had to be amputated at once, and that subsequent thereto an additional operation had to be performed on said leg; that the injury was caused by the tort, gross neglect, carelessness, and want of care of said railroad companies, their agents, servants, and employes.

Defendants filed an exception of no cause of action to the petition of plaintiff, which exception was overruled.

Defendants argue, in support of the exception filed by them, that the petition does not allege or disclose any contractual relations between plaintiff and the defendants; that in going to the depot solely to mail a letter on one of their trains that he was engaged in the transaction of business other than that connected with the railroad company; that the contract of the railroad company to carry mail is with the government, and that such contract confers absolutely no right on the sender or addressee of mail as against the railroad, and that it gives rise to no legal relations whatsoever between them; that plaintiff's business in mailing the letter referred to was with the United States government; that the only duty that the railroad company owed plaintiff was not to willfully or maliciously injure him; and that, as there was no allegation in plaintiff's petition of malice or willful injury on the part of defendants, his petition disclosed no cause of action.

A contract to carry mail is, of course, between the government of the United States and the carrier of the mail; and the sender or receiver of mail is not a nominal party to such contract. But the sender or receiver of mail is the person to be served or benefited under or by that contract, and he is therefore indirectly interested therein, or connected therewith. The sender of mail has the undoubted right to deposit letters in the places designated by the government for the reception of mailing matter; and, where the sender of mail goes to a mail car and deposits his mail with the clerk or officer placed in said car to receive mail, he is transacting business with the agent or agency employed and used by the government for the transmission of mail. In this instance, the defendants were the instrumentalities used by the government for conveying mail from one place to another; and they were obliged, under their contract with the government, not only to provide a mail car and carry the mail and mail clerks in charge of the mail, but also to give safe passage of ingress to and egress from their train and the mailing clerks stationed in the mail car.

When defendants entered into the contract with the government to carry the mail for the public, they (the defendants) impliedly invited all persons having business connected with the government under that contract to come and transact such business with them, as they were the agencies of the government in the transaction of this particular line of business. They were engaged in the carrying of mail for the government; they permitted such business to be operated in their cars and on thier tracks; and all persons depositing mail had the right to go to the mail car in which defendants carried the mail, and which was stationary and open to receive mail at their regular depot. There is a mutuality of interest between the sender of mail and the common carrier, who carries the mail under contract with the government. The Supreme Court of Massachusetts, in Plummer v. Dill, 156 Mass. 426, 31 N. E. 128, 32 Am. St. Rep. 463, say, with reference to a mutuality of interest:

'To come under an implied invitation, as distinguished from a mere license, the visitor must come for a purpose connected with the business in which the occupant is engaged, or which he permits to be carried on there. There must at least be some mutuality of interest in the subject to which the visitor's business relates, although the particular thing which is the subject of the visit may not be for the benefit of the occupant.'

The question here presented has been passed upon directly twice in the courts of last resort of this country; and in both cases it was held that a person going to a depot to mail a letter is neither a trespasser nor a licensee, but that the railroad owes to him the same obligation of safe passage to and from the train as it owes to a passenger. In the case of Hale v. Grand Trunk R. R. Co., decided by the Supreme Court of Vermont and reported in 60 Vt. 605, 15 A. 300, 1 L. R. A. 187, the plaintiff was on his way to the train to mail a letter, and fell from an unguarded and insufficiently lighted platform. The defendants pleaded that the plaintiff was a mere licensee; but the court held:

'It is the duty of a railroad company to furnish a reasonably safe passage to and from its mail cars, for the purpose of mailing letters, while stopping at its regular stations, when the company carries mail under contract with the government; and failure to provide such passage is actionable negligence.'

In reply to the identical argument raised here, the court, in the body of its opinion, said:

'As a part of the service which the defendant was performing for the government, and for which it was receiving pay from the government, it was under a duty to furnish the public a reasonably safe passage to and from the mail trains, while stopping at its regular stations, for the purpose of purchasing stamps and mailing letters. The plaintiff was a member of the public, and was attempting to pass over the platform provided by the defendant to the mail train, for the lawful purpose of mailing two letters. By accepting the carriage of mail for the government, the defendant became under the duty to furnish him a reasonably safe passage to its mail train, for the purpose of mailing his letters. In attempting to pass over the platform to its main train for this purpose, the plaintiff was neither a trespasser, intruder, nor loafer, but was there to transact business which the defendant had undertaken to do with him for a compensation received from the government; in fact, was there at the invitation of the defendant to transact business which it had been hired to perform for and with him by the government. The duty of the defendant to furnish plaintiff a reasonably safe passage to its mail train to mail letters was none the less binding or obligatory because the compensation received therefor came from the government, rather than from the plaintiff.'

In the case of Atchison, Topeka & Santa Fe Railway Company Plaintiff in Error, v. Frank J. Jandera, decided by the Supreme Court of Oklahoma, and reported in 24 Okl. 106, 104...