Marshall v. Nashville Ry. & Light Co.

• Decision Date: 02 March 1907
• Citation: 101 S.W. 419,118 Tenn. 254
• Parties: MARSHALL v. NASHVILLE RY. & LIGHT CO.
• Court: Tennessee Supreme Court

101 S.W. 419

118 Tenn. 254

MARSHALL v. NASHVILLE RY. & LIGHT CO.

Supreme Court of Tennessee.

March 2, 1907

Appeal from Circuit Court, Davidson County; John W. Childress Judge.

Action by Mrs. M. A. Marshall against the Nashville Railway & Light Company. Judgment for defendant. Plaintiff appeals. Affirmed.

Robert Vaughn, Jordan Stokes, and Preston Vaughn, for appellant.

J. C Bradford, R. F. Jackson and J. M. Anderson, for appellee.

WILKES J.

This is an action for damages for personal injuries, resulting in the death of M. A. Marshall. Upon the conclusion of all the evidence, the trial judge instructed the jury to find for the defendant railway and light company, which was done; and the plaintiff appealed, and has assigned errors.

At the time and on the occasion when the injury occurred, the intestate was riding upon the cars of the railway and light company upon what is called a "free pass." The free pass was a pass book with coupons, each of which read as follows:

"Coupon Pass.

Nashville Railway & Light Co.

Good only if detached when used and when presented by the person named on cover.

Complimentary Coupon Pass.

Not transferable.

No. 1576.

Issued 5--10, 1904.

In consideration of the courtesy of this pass book, I agree to use it subject to the following

Conditions:

I will allow no one besides myself to use this pass book, under penalty of forfeiting the same.

I understand that I ride upon the cars of the company entirely at my own risk of injury or damage.

M. A. Marshall.

Not good unless signed in ink by holder of pass book."

The pass book containing the pass coupon used by the plaintiff's intestate on the occasion and at the time of the accident contained, or had printed thereon, signed by him, the following stipulation:

"These coupons will be received as car fare from M. A. Marshall subject to the conditions printed on next page of this cover. Revocable at pleasure of the company.

Percy Warner, General Manager."

The assignments of error are as follows:

"First. The contract relied on by the defendant, exempting it from liability for negligence, is null and void, because against public policy, under the decisions of this state.

Second. A contract undertaking to exempt a common carrier from liability for injuries caused by its gross or willful negligence is null and void.

Third. The lower court was in error in taking the case away from the jury, for the further reason that it was denied by plaintiff in error that the pass upon which her intestate was riding was a gratuity. This was an issue of fact directly raised by the pleadings, and the jury should have been permitted to pass upon it."

The first and second assignments may be treated together, and raise the question whether a common carrier may absolve itself from liability to a person whom it carries free of charge, when the party agrees to such conditions, in consideration of, or as an incident to, such free carriage; and, if it may not absolve itself entirely, to what extent it may lawfully relieve itself, and from what degree of negligence.

There is a marked distinction in the cases, depending upon whether the carrier receives compensation, or hire, for the carriage, or whether it is done gratuitously, or without compensation.

Thus, in Kirtland v. Montgomery, 1 Swan, 452, the liability of the carrier was made to depend upon whether or not he received compensation for the carriage. It is said in that case that it is a material element in this species of contract that it be for compensation, not that any express agreement to that effect is necessary, for it may be as well implied, and the carrier would be entitled to a quantum meruit for it; and it is upon this principle of the right to compensation that the liability of the carrier depends, and that goes to the extent of making him liable as an insurer, and responsible for accidents and thefts, and even to loss by robbery.

And again, this court says, if the defendant is not to be regarded as a common carrier, but as a mere mandatary, is he liable in that character for negligence upon the nondelivery of the goods?

As a general rule, a mandatary, whose engagement is merely gratuitous, is bound only to ordinary negligence, and liable only for gross neglect or breach of good faith.

In Coward v. Railroad, 16 Lea, 225, 57 Am. Rep. 227, this court, quoting from Hutchinson on Carriers (1st Ed.) § 44, says: "Common carriers will not be permitted, under any circumstances or in any manner, to protect themselves against the consequences of their own negligence in the carriage of either goods or passengers. They may become the carrier of goods gratuitously, and the law will only hold them liable as mandataries--that is, only for losses accruing through gross negligence; but, so long as they are compensated for the carriage, they are common carriers, contract or no contract."

This same distinction and doctrine is forcibly stated in the case of Northern Pacific Railway Co. v. Adam, 192 U.S. 440, 24 S.Ct. 408, 48 L.Ed. 513, and in Boering v. Chesapeake Bay Railroad Co., 193 U.S. 442, 24 S.Ct. 515, 48 L.Ed. 742, which cases cite a large number of authorities in other states, and treat the subject very elaborately.

In Duncan v. Maine Central Railroad Co., (C. C.) 113 F 508, the same doctrine is held, and the court says: "The result...