Clark v. Southern Railway Company

• Decision Date: 16 May 1918
• Docket Number: 9,489
• Parties: CLARK v. SOUTHERN RAILWAY COMPANY
• Court: Indiana Appellate Court

119 N.E. 539

69 Ind.App. 697

CLARK v. SOUTHERN RAILWAY COMPANY

No. 9,489

Court of Appeals of Indiana

May 16, 1918

Rehearing denied December 11, 1918.

Petition to transfer withdrawn April 15, 1919.

From Posey Circuit Court; Herdis Clements, Judge.

Action by Callie Clark against the Southern Railway Company. From a judgment for defendant, the plaintiff appeals.

Reversed.

Claude A. Smith and T. Morton McDonald, for appellant.

Embree & Embree, John D. Welman and Humphrey & Humphrey, for appellee.

OPINION

CALDWELL, J.

Appellant brought this action to recover damages on account of certain personal injuries suffered by her while traveling on one of appellee's passenger trains. A trial resulted in a judgment in favor of appellee, rendered on conclusions of law stated on a special finding of the facts.

On this appeal appellant challenges the action of the trial court in overruling the demurrer filed to the second paragraph of answer, and challenges also each conclusion of law.

The complaint disclosed that appellee, as a common carrier of freight and passengers for hire, operated a railroad from East St. Louis, Illinois, to Danville, Kentucky, passing through Illinois and Indiana and part of Kentucky; that on August 1, 1913, at Princeton, Indiana, appellee accepted appellant as a passenger, to be carried safely on one of its passenger trains from Princeton, Indiana, to Danville, Kentucky; that by reason of appellee's negligence the train was thrown from the track at a point in Kentucky, and as a consequence certain described serious, permanent physical injuries were inflicted on appellant.

To the complaint appellee filed, in addition to a general denial, such second paragraph of answer. The latter was to the following effect: That appellant is the wife of F. N. Clark, appellee's employe; that shortly prior to August 1, 1913, appellee issued to appellant at her request and the request of her said husband a certain free pass which entitled her to ride on said train free of cost or charge from Princeton, Indiana, to Danville, Kentucky; that the free pass was issued solely by reason of the fact that appellant was the wife of said employe, and for no other account or consideration whatsoever, and pursuant to the laws of the United States authorizing appellee to issue such pass on that account, and that said free pass contained as a part thereof, and plainly printed thereon, the following stipulations and conditions, to wit:

"The person accepting this pass agrees that the Southern Railway Company shall not be liable, under any circumstances, whether of negligence of agents or otherwise, for any injury to the person or for any loss or damage to the property of the person using this pass."

It is further alleged that appellant agreed to such stipulations and conditions, and indicated such agreement by signing her name on the pass at a place provided for that purpose, and that at the time of receiving her said injuries she was traveling on said train solely by reason of such free pass.

To the second paragraph of answer appellant filed a reply in five paragraphs, of which the second and fourth are unimportant in the consideration of any question presented. The first paragraph was a general denial. By the third paragraph appellant alleged in substance that by virtue of a certain provision of the Constitution of the Commonwealth of Kentucky, in force at all times involved here, said stipulations and conditions printed on said pass were void and unenforceable, which constitutional provision as set out in said paragraph of reply is as follows: "No common carrier shall be permitted to contract for relief from its common-law liability."

The fifth paragraph of reply was to the effect that said stipulations and conditions printed on said pass materially changed, affected and determined the value of the services rendered to a passenger traveling thereon; that appellee's printed schedule of rates, fares and charges for the transportation of freight and passengers between different points on its route, filed with the Interstate Commerce Commission as required by the laws of the United States, did not contain a statement of such stipulations and conditions, and did not disclose that passes issued to employes and to members of their families would be subject to such stipulations and conditions; that as a consequence such stipulations and conditions were void and unenforceable.

Appellee's demurrer filed to the third and fifth paragraphs of reply was overruled.

The special finding recites the facts in detail as determined by the court from the evidence, and to the following effect: That all the material allegations of the complaint, of the special answer and of the special replies are true. Among the facts so specifically found, some of which are not clearly alleged in any pleading, are the following: That by reason of appellant's injuries, suffered through appellee's negligence as alleged, the former has been damaged in the sum of $ 5,000; that appellant's husband was engaged in appellee's service at Princeton, Indiana, and that the pass was issued and delivered there; that appellee's schedule of rates, fares and charges filed with the Interstate Commerce Commission and in force at the time when appellant was injured, did not contain the pass involved in this action.

The conclusions of law are in substance that appellee is not liable to appellant in damages for her said injuries, and that she is not entitled to recover in this action.

The ruling sustaining the special replies as against demurrer was made by the Gibson Circuit Court. This ruling is not challenged by cross-errors. The cause was venued to the Posey Circuit Court and there tried. It is apparent that the ruling of the Gibson Circuit Court was erroneous, if the conclusions of law were correctly stated on the facts found.

The alleged errors in overruling the demurrer to the special answer and in stating the conclusions of law will be considered together.

By the provisions of a federal statute it is declared to be unlawful for such a transportation company as appellee to issue any interstate free ticket or free pass, except to certain designated classes of persons, among the exceptions being employes and their families. Subd. 5, § 8563 (vol. 8) U.S. Comp. Stat. 1916; 36 U.S. Stat. at L., ch. 309, p. 544. By the terms of such statute appellee, since not prohibited, was impliedly authorized to issue an interstate free pass to appellant as a member of the family of an employe. As to whether what purports to be such a pass so issued is in fact a free pass for gratuitous passage, rather than issued in consideration or part consideration of services performed or to be performed by such an employe, is a federal question. Under the decisions of the United States Supreme Court such a pass is a free pass issued as a gratuity. Charleston, etc., R. Co. v. Thompson (1914), 234 U.S. 576, 34 S.Ct. 964, 58 L.Ed. 1476; Norfolk, etc., R. Co. v. Chatman (1917), 244 U.S. 276, 37 S.Ct. 499, 61 L.Ed. 1131, L.R.A. 1917F 1128.

But where a carrier of passengers voluntarily undertakes to carry a passenger gratuitously or under a free pass, in the absence of a contract or stipulation to the contrary, it owes him a duty to exercise care for his safety, and a failure to discharge such duty is negligence which may form the basis of an action. Indianapolis Traction, etc., Co. v. Klentschy (1907), 167 Ind. 598, 601, 79 N.E. 908, 10 Ann. Cas. 869; Russell v. Pittsburgh, etc., R. Co. (1901), 157 Ind. 305, 312, 61 N.E. 678, 55 L.R.A. 253, 87 Am. St. 214; Cleveland, etc., R. Co. v. Ketcham (1893), 133 Ind. 346, 350, 33 N.E. 116, 19 L.R.A. 339, 36 Am. St. 550; Ohio, etc., R. Co. v. Selby (1874), 47 Ind. 471, 492, 17 Am. Rep. 719; Illinois Central R. Co. v. O'Keefe, 61 Am. St. 87, note; 2 Michie, Carriers § 2339; 10 C. J. 873; 4 R. C. L. 1159.

However, where a passenger is carried gratuitously, the carrier may by contract or stipulation relieve itself from liability for its negligence in the absence of a valid, prohibiting statute. Indianapolis Traction, etc., Co. v. Klentschy, supra; Payne v. Terre Haute, etc., R. Co. (1902), 157 Ind. 616, 62 N.E. 472, 56 L.R.A. 472; Indianapolis Traction, etc., Co. v. Isgrig (1914), 181 Ind. 211, 215, 104 N.E. 60; Malott v. Weston (1912), 51 Ind.App. 572, 98 N.E. 127; Charleston, etc., R. Co. v. Thompson, supra; 5 R. C. L. 9; 10 C. J. 720.

It appears, then, prima facie that the court did not err in overruling the demurrer to the special answer or in stating the conclusions of law. Appellant, however, points to the facts pleaded by the special replies and found by the court to be true, and relies on such facts as sufficient to rebut or overcome such prima facie conclusion; that is, appellant relies on the fact that the stipulations and conditions printed on the pass were not filed by appellee with the Interstate Commerce Commission as a part of its schedule of rates, fares and charges for the transportation of passengers, and relies also on the provision of the Kentucky Constitution prohibiting common carriers from contracting for relief from common-law liability. Appellant points also to § 3897 Burns 1914, § 2904 R. S 1881. By that section it is declared to be unlawful "for any officer or agent of any railroad * * * or other public conveyance of passengers for hire or reward, * * * to issue or sell any pass, ticket, * * * evidencing the holder's right to travel or be transported * * * upon such railroad * * * or other public conveyance, subject to any condition contained in or indorsed upon or appended to such pass, ticket, * * * whereby the liability of such carrier shall be abridged or limited, or whereby the rights of the holder of the pass,...