Malott v. Weston
| Decision Date | 17 April 1912 |
| Docket Number | 7,567 |
| Citation | 98 N.E. 127,51 Ind.App. 572 |
| Parties | MALOTT, RECEIVER, v. WESTON |
| Court | Indiana Appellate Court |
Rehearing denied October 18, 1912. Transfer denied December 12, 1912.
From Superior Court of Marion County (67,972); James M. Leathers Judge.
Action by Edward B. Weston against Volney T. Malott, receiver of the Terre Haute and Indianapolis Railroad Company. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Samuel O. Pickens and Owen Pickens, for appellant.
Oscar M. Gottschall and Hawkins & Hawkins, for appellee.
Appellee was injured on October 15, 1902, while a passenger on one of appellant's trains running from the city of Indianapolis to the city of Terre Haute. The sufficiency of the complaint is not challenged, and no question is presented, either as to the extent of appellee's injuries or as to the amount of the recovery.
The complaint was answered by denial, and by a second paragraph of answer alleging that "the plaintiff did not pay or tender any fare for passage upon the train upon which he alleges in the complaint he was a passenger, but he was traveling upon said train on a free pass which was issued to him and accepted by him as a pure gratuity, and which contained a stipulation, agreed to by the plaintiff, that by its acceptance and use any and all claims for injuries to person or for loss or damage to baggage that might accrue to the plaintiff are released."
Appellee replied to this paragraph of answer, admitting that he was traveling on a pass issued to him by appellant, but denying that the same was accepted by him as a pure gratuity; that the transportation so furnished to him by appellant was in pursuance of a contract between appellant and the Weston Paper Company, made and entered into between said company and appellant in the year 1900, whereby it was agreed between the parties that if said paper company would remove its factories from Greenfield, Indiana, to Terre Haute, Indiana, on the line of the railway of appellant, among other considerations for said removal, and the benefits to be derived by appellant from having said mill and factories located on its road at said point, that transportation should be furnished to said paper company for the use of one of its officers over the Vandalia lines, and that said contract continued and was in full force during the year 1902; that said pass was issued by appellant, as receiver for the Terre Haute and Indianapolis Railway Company, appellee having been designated as the officer of the Weston Paper Company to use said transportation, and he was using the same, as furnished under said contract, at the time the accident occurred, in pursuance of the business of said paper company.
The reply also admitted that said pass had the stipulation on the back thereof as set out in the answer, but the same was not agreed to by appellee, and the transportation so furnished said company for appellee was for the business of said company, and had no conditions attached thereto to which appellee agreed.
Appellant demurred to appellee's reply to the second paragraph of answer, which demurrer was overruled by the court. Trial by jury, verdict and judgment for appellee.
Appellant assigns as error and relies for reversal on the overruling of the demurrer to the reply to the second paragraph of answer, overruling the motion to direct the jury to return a verdict in appellant's favor, and overruling appellant's motion for a new trial. By these specifications of error two principal questions are presented: (1) Was appellee at the time of his injury a passenger of appellant for hire? (2) If so, Was the stipulation in the contract releasing appellant from all claims for injuries one which appellant could lawfully make and enforce?
It is well settled that if the pass on which appellee was riding at the time of his injury was a pure gratuity, he was not a passenger for hire, was bound by the conditions releasing appellant from any and all claims for injuries, and, therefore, could not recover. Payne v. Terre Haute, etc., R. Co. (1902), 157 Ind. 616, 62 N.E. 472, 56 L.R.A. 472; Northern P. R. Co. v. Adams (1904), 192 U.S. 440, 24 S.Ct. 408, 48 L.Ed. 513; Boering v. Chesapeake Beach R. Co. (1904), 193 U.S. 442, 24 S.Ct. 515, 48 L.Ed. 742.
Whether appellee was a gratuitant or a passenger for hire was a question of fact for the jury, to be determined from the preponderance of the evidence, and where the jury, as in this case, found a general verdict in favor of appellee, that question must be deemed in this court to be settled, if the record discloses any evidence supporting the verdict. Boering v. Chesapeake Beach R. Co., supra.
The evidence shows that negotiations were opened up in the year 1900, by the general freight agent and the commercial agent for appellant with appellee, for the purpose of inducing appellee to locate the mill of the Weston Paper Company at Terre Haute, Indiana, and on appellant's line of railway. As a result of these negotiations appellant leased a factory site to the Weston Paper Company for a term of fifty years, at a nominal rental of $ 1 per year, and bound itself to make certain inbound rates on coal, straw and other raw materials, as well as outbound rates on the product of the mill to certain competitive points. Appellant also agreed to build side tracks, including an elevated track for coal, for the use and convenience of appellee.
Appellee testified upon the trial that as a part of the agreement appellant was to furnish transportation for one of the officers of the company. Mr. Kendall, the commercial agent, testified that after consultation with Mr. Taylor, the general freight agent of appellant, he made an absolute promise to secure transportation for appellee. Mr. Taylor, in his testimony, was uncertain, but admitted saying that the matter might be arranged; that the railroad company was liberal in the matter of transportation, and it was taking care of other people. Mr. Malott, the receiver, testified that the pass was made out and forwarded to appellee after a letter was received by him from Mr. Kendall advising the issuance of the same. All the terms of the agreement were carried out by appellant, and the pass was issued before the plant was moved in 1901. A similar pass was again issued in 1902, and every year thereafter up to and including the year 1905. It is clear that there was some evidence supporting the contention of appellee, and the general verdict in his favor, by which he was found to have been a passenger for hire, must be deemed to be conclusive as a question of fact.
A more important and a more difficult question is presented on the second branch of the case, which is, assuming that the pass was not a gratuity, but was issued for a consideration, Did appellant contract as a common carrier or as a private carrier? If as a common carrier, the contract exempting appellant from the consequences of its own negligence was void, as against public policy. Ohio, etc., R. Co. v. Selby (1874), 47 Ind. 471, 17 Am. Rep. 719; Ohio, etc., R. Co. v. Nickless (1880), 71 Ind. 271; Louisville, etc., R. Co. v. Faylor (1890), 126 Ind. 126, 25 N.E. 869; Louisville, etc., R. Co. v. Keefer (1896), 146 Ind. 21, 44 N.E. 796, 38 L.R.A. 93, 58 Am. St. 348.
The reason for the rule is expressed with clearness in the case of Payne v. Terre Haute, etc., R. Co., supra, in which it is said: But if the pass was issued by appellant as a private carrier, even for a consideration, and was accepted and used by appellee, with knowledge of the conditions attached, the contract against liability was not void as being against public policy. Louisville, etc., R. Co. v. Keefer, supra; Pittsburgh, etc., R. Co. v. Mahoney (1897), 148 Ind. 196, 46 N.E. 917, 47 N.E. 462, 40 L.R.A. 101, 62 Am. St. 503; Russell v. Pittsburgh, etc., R. Co. (1901), 157 Ind. 305, 61 N.E. 678, 55 L.R.A. 253, 87 Am. St. 214.
In the two cases first cited, the court held that a railroad company was not required to carry cars for express companies engaged in the business of transporting express matter, as a duty owing to the general public, and one that the general public had a right to compel the carrier to undertake, and, therefore, where an express messenger was injured, the railroad company could rely on its contract of nonliability with the express company as a valid defense. To the same effect is the case last cited, where the injured party was a porter on a Pullman sleeping-car, and it was held that in carrying Pullman cars the railroad company was acting in the capacity of a...
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