Mcneill v. Durham & C. R. Co

• Citation: 44 S.E. 34, 132 N.C. 510
• Case Date: April 28, 1903
• Court: United States State Supreme Court of North Carolina

44 S.E. 34
132 N.C. 510

McNEILL.
v.
DURHAM & C. R. CO.

Supreme Court of North Carolina.

April 28, 1903.

CARRIERS—PASSES—UNJUST DISCRIMINATION —INJURIES TO PASSENGER—ARTIES IN PARI DELICTO—DEFENSES.

1. Laws 1891, p. 277, c. 320, § 4, provides that if a common carrier subject to the act shall, by any special rate or other device, charge or receive from any person a greater or less compensation for any service rendered in the transportation of passengers than it charges or receives from any other person for a like service under substantially similar conditions, such carrier shall be deemed guilty of unjust discrimination. Section 25 contains exceptions authorizing carriers to give reduced rates to certain persons, not including newspaper editors, and a violation of such act is made punishable by a fine not exceeding $5,000 for each offense. Held, that an agreement by a railroad company by which it gave a newspaper editor an annual pass over its lines in consideration of a publication of the company's schedule in his paper constituted an illegal discrimination, within such statute, inasmuch as it does not appear that the value of the advertisement would be exactly equal to the value of the free pass, and also because it was a sale to the editor of his transportation on credit, and not payable in money.

2. Where a railroad company issues a newspaper editor an annual pass in violation of Laws 1891, p. 277, c. 320, § 4, forbidding discrimination, and the editor, while riding on the pass, is injured by the company's negligence, he and the company being pari delicto, be could not recover for the injuries sustained.

Douglas, J., dissenting.

Appeal from Superior Court, Moore County; O. H. Allen, Judge.

Action by W. H. McNeill against the Durham & Charlotte Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Guthrie & Guthrie, Murchison & Johnson, and H. F. Seawell, for appellant.

U. L. Spence, W. J. Adams, and Douglass & Simms, for appellee.

CLARK, C. J. This Is an action of tort, arising out of contract, for personal injuries alleged to have been received by the plaintiff April 6, 1900, by negligence of the defendant, while traveling on its road. The com-

[44 S.E. 35]

plaint avers that the plaintiff was a passenger on said railroad under a contract by it to carry the plaintiff for a valuable consideration. The defendant, in its answer, among other things, avers that the plaintiff was a "trespasser on its train, having tendered to defendant no ticket, money, or compensation whatever for its fare—only a free pass, which had expired 1st January previously by its own limitation, " and which further had on its back a stipulation exempting the company from liability under all circumstances for injury to his person, or loss or damage to his baggage. The plaintiff testified that he was "editor of the Carthage Blade, a newspaper published at Carthage. In 1899 I made a contract with the defendant to publish its time-table in my paper, as the consideration for the pass. I did publish the time-table, and the defendant agreed to continue the contract and renew the pass for 1900." It is true, he said he told the conductor he would pay the fare; but, upon his making the above statement, the conductor accepted him as a free passenger.

Upon this evidence the motion for Judgment as of nonsuit should have been granted. There is no lawful contract of passage, and the only right the plaintiff could claim against the defendant is that the defendant should not willfully and wantonly injure him. Cook v. Railroad, 128 N. C. 333, 38 S. E. 925. The General Assembly (Laws 1891, p. 277, C. 320, § 4) provided that "if any common carrier subject to the provisions of this act shall directly or indirectly by any special rate, rebate, drawback or other device, charge, demand, collect or receive from any person or persons a greater or less compensation for any service rendered or to be rendered In the transportation of passengers or property subject to the provisions of this act than it charges, demands or receives from any other person or persons for doing for him or them, a like and cotemporaneous service in the transportation of a like kind of traffic under substantial similar circumstances and conditions such common carrier shall be deemed guilty of unjust discrimination." Section 25 of said chapter (page 286) contains the exceptions which permit handling free and at reduced rates property of the United States, state or municipal governments, or for charitable purposes, or to or from fairs, and at exhibits thereat, and permits "the free carriage of destitute and homeless persons transported by charitable societies, and the necessary agents employed in...