Martin v. Greyhound Corporation

• Decision Date: 02 December 1955
• Docket Number: No. 12395.,12395.
• Parties: G. C. MARTIN, Appellant, v. The GREYHOUND CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

227 F.2d 501 (1955)

G. C. MARTIN, Appellant, v. The GREYHOUND CORPORATION, Appellee.

No. 12395.

United States Court of Appeals Sixth Circuit.

December 2, 1955.

Kenneth Harwell, Nashville, Tenn. (Williams, Harwell, Howser & Thomas, Nashville, Tenn., on the brief), for appellant.

K. Harlan Dodson, Jr., Nashville, Tenn. (Walker, Hooker, Keeble, Dodson, & Harris, Nashville, Tenn., on the brief), for appellee.

Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.

SIMONS, Chief Judge.

Frustrated in his effort to submit his claim for damages to the court upon its merits, by a summary judgment in favor of the appellee, D.C., 125 F.Supp. 362, the appellant presents this appeal. The facts upon which he relies follow.

The appellant is, and since 1948 has been, an employee of the Southeastern Greyhound Lines, a division of the Greyhound Corporation. The appellee is a corporation, incorporated under the laws of Delaware, and doing business in Tennessee as a common carrier of passengers. The appellant at the time here involved was a member of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America which had entered into an employment contract with the appellee by terms of which he was entitled to have issued to him and his family passes entitling them to passage on the bus system of the appellee. Pursuant to the terms of his employment contract, he requested, and was issued, passes entitling him and his wife to passage from Nashville, Tennessee to Jacksonville, Florida and return. On the morning of September 22, 1952, the appellant and his wife boarded one of the appellee's busses in Nashville, en route to Florida. He alleges that upon reaching a point within the state of Alabama, north of Birmingham, and while the bus was being driven at an unreasonable rate of speed and in a reckless and careless manner, with a defective front tire, the tire blew out and the bus rolled down an embankment, causing Mrs. Martin to suffer injuries which, eventually caused her death. He charges that the accident resulted from the reckless speed of the bus at a time when the appellee knew, or should have known, the right front tire was defective. He charges explicitly that the appellee's want of care raises "the presumption of conscious indifference to consequences and guilty of gross and wanton negligence." The presumption arises from the rate of speed and from the fact that the appellee had replaced the safety, puncture proof tires on the bus by tires which were likely to puncture and blow out, under certain atmospheric conditions.

The appellee denied all charges of negligence and, as affirmative defenses, pointed to the terms of the passes which recited that the person named therein voluntarily assumed all risk of accident, waived liability, and represented that he would not use the pass in violation of any law. The appellee further answers that it had a contract with the Goodyear Tire & Rubber Company under the terms of which that company, as an independent contractor, agreed to furnish tires for its busses and to care for them. If any tire was defective, it was due to the negligence of Goodyear and not its own and that by selecting Goodyear to furnish and maintain its tires in serviceable condition it was exercising the highest degree of care for its passengers.

The district court 125 F.Supp. 363 adjudged that the appellant's wife did not occupy the status of a "`passenger for hire'", that her pass though issued pursuant to a labor contract, was a gratuity and that appellant and his wife were bound by the stipulations limiting the liability of Greyhound. It, thereupon, entered a judgment dismissing the complaint. The general rule stemming from Grand Trunk Railway Company v. Stevens, 95 U.S. 655, 24 L.Ed. 535, is that a contract undertaking to exempt a common carrier of passengers from liability for negligence is void. The reasons underlying it are fully set forth by Mr. Justice Hughes in Santa Fe P. & P. R. Co. v. Grant Brothers Construction Co., 228 U.S. 177, at pages 184, 185, 33 S.Ct. 474, 57 L.Ed. 787. There, it was said that the rule rests on broad grounds of public policy, justifying restriction of liberty of contract because of the public needs to be achieved. The law governing common carriers was to secure the utmost care in the rendering of a service of the highest importance to the community. This concept is not, however, applicable in its full sweep to gratuitous passengers since it was held in Northern Pacific Railroad Company v. Adams, 192 U.S. 440, 24 S.Ct. 408, 48 L.Ed. 513, that a carrier could stipulate with a gratuitous passenger against liability for ordinary negligence. Although the decisions are not in complete agreement, it is, generally, held that a carrier cannot by such stipulations relieve itself from liability for acts done wantonly or wilfully, or for acts of gross negligence, New York Central Railway Co. v. Mohney, 252 U.S. 152, 40 S.Ct. 287, 64 L.Ed. 502.

This brings us to the principal issue in the case and, so, to a...