McNeill v. Durham & C.R. Co.

• Decision Date: 01 June 1904
• Citation: 47 S.E. 765,135 N.C. 682
• Parties: McNEILL v. DURHAM & C. R. CO.
• Court: North Carolina Supreme Court

47 S.E. 765

135 N.C. 682

McNEILL v. DURHAM & C. R. CO.

Supreme Court of North Carolina

June 1, 1904

On Rehearing. Petition allowed, and judgment below affirmed.

For former opinion, see 44 S.E. 34.

CLARK C.J., and MONTGOMERY, J., dissenting.

DOUGLAS J.

This is a rehearing of the case originally decided in 132 N.C. 510 44 S.E. 34, 95 Am. St. Rep. 641. We fully concur in our former opinion as to the illegality of the contract by which the defendant agreed to give to the plaintiff free personal transportation to an unlimited extent in consideration of certain advertising. The only ground on which we allow the petition is that the plea in pari delicto, applying solely to the contract of carriage, is not a defense to an action for personal injuries caused by the negligence of the defendant.

The plaintiff testified as follows: "Marshburn called on me for my ticket. I told him I had a pass for 1899, and showed it to him, and told him I would pay the regular fare if he wanted it. He said it was all right. I was the 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 timetable, and the defendant agreed to continue the contract and renew the pass for 1900. The contract was not in writing."

The superintendent of the defendant company testified that there was no such contract, but that the pass was a gratuity. This raised a question of credibility, which in the view we take of the case becomes of no practical importance. In any event it would be a question of fact for the jury. The contract for transportation was rendered absolutely void by the statute founded upon public policy, whether based upon no consideration or upon the inadequate consideration of printing a time-table. The pass, issued in pursuance of an illegal contract and for the purpose of carrying out its unlawful purpose, inherits its invalidity. The defendant was free at all times to decline to carry the plaintiff except upon the payment of the usual fare, and to eject him from its train upon his refusal to pay. The fact that the pass had expired makes no difference, as, in its character as a contract, it never had any legal existence. Being without legal existence, it was equally devoid of legal effect, and, conferring no rights upon the plaintiff, imposed upon him no obligations which the law will enforce. A void contract is thus defined in Lawson on Contracts, § 350: "A void contract is one destitute of legal effect. It is a mere nullity, and good for no purpose whatever. It is binding upon neither party, and may be attacked as invalid by strangers. It does not require any disaffirmance to avoid it, but may be simply disregarded, and it cannot be ratified and made valid."

The pass itself being worthless, the conditions on the back thereof could have no application. They were not independent contracts, and, if they had been, were totally wanting in a legal consideration. Therefore this case does not come within the principle laid down in Northern Pac. R. v. Adams, 192 U.S. 440, 24 S.Ct. 408, 48 L.Ed. 513, where the pass was recognized as a lawful and valid contract for free transportation. By citing and distinguishing that case, decided by a divided court, we do not mean to express our approval of its argument or conclusion. It is not necessary for us to consider it in the case now before us.

We may here repeat that it is not the unlawful contract for free transportation which renders a railroad company liable to the penalty, but it is the transportation itself. In the view of this statute a free pass is a mere incident, as the same result could be obtained by issuing a thousand-mile ticket or one in ordinary form. The offense consists in the free carriage of a passenger, whether with or without a pass or ticket; and the offense is complete when such passenger is carried any appreciable distance. The railroad company may have issued to him a free pass or ticket from Raleigh to New York with impunity, but would become liable to the full penalties prescribed by the statute as soon as it had transported such passenger to the first station out of Raleigh. In using the term "free transportation," we mean to include all transportation which justly comes within the forbidden principle of discrimination. A mere colorable consideration will neither evade the penalties of the statute upon the one hand, nor confer any rights upon the other.

We must bear in mind that while the statute renders absolutely void any contract for free transportation, so that neither party thereto can acquire any rights thereunder, it imposes the penalty only upon the transportation company. The act of free transportation alone is criminal. The party accepting such transportation is not guilty of a criminal act, whatever moral blame may attach to the reception of unlawful favors. Therefore, in contemplation of law, the parties cannot be considered in pari delicto. This difference is well expressed by Pearson, C.J., speaking for the court in Melvin v. Easley, 52 N.C. 356. That was an action for deceit and false warranty in the sale of a horse on Sunday by a horse trader, in violation of Rev. St. c. 118, § 1. The court says, on page 358, 52 N. C.: "It is said that the plaintiff knew the defendant was a horse trader and concurred in his violation of the statute, and, consequently, was particeps criminis. Does this consequence follow? In crimes, there are accessories; in misdemeanors, all who aid or concur are held to be equally guilty, and are subject to like punishment with the party who commits the offense. This plaintiff is not guilty of violating the law, and is not subjected to a penalty, so he cannot be particeps criminis in the legal sense of the term. He is not in pari delicto, and it is against the policy of the law, and will defeat its object, so to consider him. The court will not aid any person who violates the law; therefore the defendant could not maintain an action. This rule is adopted on the ground of policy, for the purpose of preventing a violation of the law, and, if confined in its operation to the actual offender, its application will be salutary; but if it be extended to the party who is not an offender, so far from checking, it will encourage a violation of it, by letting it be known to 'horse traders,' 'shopkeepers,' and "all whom it may concern,' that they may cheat with impunity, provided always it may be done on the Lord's Day."

The plaintiff was lawfully upon the defendant's train, and testifies that he offered to pay his fare if required by the conductor. The conductor permitted him to ride free, not as a personal favor to him, but in furtherance of a contract between him and the company itself, acting through its superior officers. There is no suggestion that the plaintiff was seeking to defraud the company in any manner, or that there was any collusion between him and the conductor. He was in every respect a bona fide passenger, and entitled to all the protection incident thereto, unless deprived thereof by the acceptance of free transportation.

The cases relied on to sustain the defense of in pari delicto are chiefly of two classes, those involving a violation of the Sunday laws, and those growing out of the relation of the plaintiff towards the national government during the Civil War. The latter class, evoked from conditions now happily passed away forever, furnishes no criterion for the determination of the case at bar. It is enough to say that in both classes of cases the plaintiffs were actually engaged in the performance of an act expressly denounced as criminal by the law of the land, as construed by the courts in which the actions were necessarily brought. The following are illustrative cases: Turner v. Railroad, 63 N.C. 522; Martin v. Wallace, 40 Ga. 52; Wallace v. Cannon, 38 Ga. 199, 95 Am. Dec. 385; Railroad v. Redd, 54 Ga. 33; Connolly v. Boston, 117 Mass. 64, 19 Am. Rep. 396; Smith v. Railroad, 120 Mass. 491, 21 Am. Rep. 538; Lyons v. Desotelle, 124 Mass. 387; Holcomb v. Danby, 51 Vt. 428. While entertaining the highest respect for the Lord's Day, the Sunday of the new law, we have not deemed it our duty to enforce its observance, so as to make it the shield of wrong. Rodman v. Robinson (at this term) 47 S.E. 19.

In the case at bar the plaintiff is certainly neither a tramp nor a trespasser, as both of those terms imply an unlawful presence against the will of the owner. Hence it is needless to examine the cases dealing with such relations. If the plaintiff's evidence be true, he was not a gratuitous passenger in the full sense of the term, inasmuch as he printed in his paper the schedule of trains in consideration of his otherwise free carriage. This was an inadequate consideration which rendered the contract void as an unlawful discrimination, but it was none the less a consideration of some actual value. But while this might, as between the plaintiff and the defendant, bring the case within the principle of N.Y. C. R. v. Lockwood, 17 Wall. 357, 21 L.Ed. 627, we deem it proper to treat the plaintiff as a gratuitous passenger, in view of the unlawful consideration, and will cite the able opinion in that celebrated case only in so far as it relates to this view of the case at bar.

It is often said that one becomes a passenger by virtue of a contract. This is not always so. A contract is a voluntary agreement between two parties, a coming together of two minds to a common intent, and yet a passenger may become such without a contract, and, indeed, against the will of the carrier. A common carrier has no right to refuse a passenger without sufficient reasons, and such reasons so rarely occur and...