Norfolk Southern Railroad Company v. Chatman
| Decision Date | 21 May 1917 |
| Docket Number | No. 192,192 |
| Citation | 37 S.Ct. 499,61 L.Ed. 1131,244 U.S. 276 |
| Parties | NORFOLK SOUTHERN RAILROAD COMPANY, Plff. in Err., v. W. C. CHATMAN |
| Court | U.S. Supreme Court |
Messrs. C. M. Bain (by special leave), W. B. Rodman, John H. Small, and J. Kenyon Wilson for plaintiff in error.
Messrs. Charles Whedbee and P. W. McMullan for defendant in error.
The judgment obtained in this case by the plaintiff in the district court, W. C. Chatman, and affirmed by the circuit court of appeals for the fourth circuit, is here for review on writ of error.
On December 1, 1911, the plaintiff below (hereinafter designated as the plaintiff) delivered to the Pennsylvania Railroad Company at Jersey City a carload of horses to be carried to Hertford, North Carolina, and was tendered by an agent of the company for his signature the customary 'uniform live stock contract' of the Pennsylvania Company, the essential provisions of which are printed in the margin.1
This contract was retained by the company, but from it was detached a 'coupon' which was given to Chatman, containing in substance an acknowledgment that he had delivered live stock of the kind and nature therein described, consigned to W. C. Chatman, destination Port Norfolk, Virginia, for Hertford, North Carolina, 'W. C. Chatman, man in charge.' Without other pass or ticket than this 'coupon,' and without other payment than the published tariff on the carload of stock, the Pennsylvania Railroad Company carried the plaintiff, with his carload of horses, on a freight train to Norfolk, Virginia, where the car was delivered to and accepted by the defendant company for transportation to its destination.
The plaintiff testifies that defendant's conductor saw him and knew he was on the car up to the time the accident complained of occurred.
The car in which the horses and the plaintiff were being carried was derailed on defendant's line, and the plaintiff, being injured, sued for damages and secured the judgment which we have before us.
The negligence of the defendant is not disputed.
On this record the defendant claims two defenses, the first of which is:
That the plaintiff is not entitled to recover, because when injured, he was traveling on a free pass issued pursuant to the terms of the live-stock contract in which he had released the carriers from all liability for any personal injury which he might sustain, thus bringing his claim within the authority of Northern P. R. Co. v. Adams, 192 U. S. 440, 48 L. ed. 513, 24 Sup. Ct. Rep. 408.
In New York C. R. Co. v. Lockwood, 17 Wall. 357, 384, 21 L. ed. 627, 641, it was decided that a person traveling on a 'drover's pass,' issued upon a live-stock contract precisely similar in its terms to that which we have in this case, was a passenger for hire, and that a release from liability for injuries caused by the carrier's negligence was void because a common carrier could not lawfully stipulate for such exemption.
This decision was rendered in 1873, and has been frequently approved: Grand Trunk R. Co. v. Stevens, 95 U. S. 655, 24 L. ed. 535, 10 Am. Neg. Cas. 638; Liverpool & G. W. Steam Co. v. Phenix Ins. Co. (The Montana), 129 U. S. 397, 32 L. ed. 788, 9 Sup. Ct. Rep. 469; Baltimore & O. S. W R. Co. v. Voigt, 176 U. S. 498, 505, 44 L. ed. 560, 564, 20 Sup. Ct. Rep. 385; Santa Fe, P. & P. R. Co. v. Grant Bros. Constr. Co. 228 U. S. 177, 184, 57 L. ed. 787, 791, 33 Sup. Ct. Rep. 474; George N. Pierce Co. v. Wells, F. & Co. 236 U. S. 278, 283, 59 L. ed. 576, 581, 35 Sup. Ct. Rep. 351. This court continues of the opinion expressed by it in 1899, in Baltimore & O. S. W. R. Co. v. Voigt, 176 U. S. 498, 505, 44 L. ed. 560, 564, 20 Sup. Ct. Rep. 385, that the Lockwood Case 'must be regarded as establishing a settled rule of policy.'
But the plaintiff in error claims that this rule is no longer applicable to such a case as this we are considering, for the reason that, while the plaintiff, as the shipper of the stock, was within the exception of § 1 of the amendment to the Act 'to Regulate Commerce' of June 29, 1906 (34 Stat. at L. 584, chap. 3591, Comp. Stat. 1916, § 8563), prohibiting the issuance of any 'interstate . . . free pass . . . except . . . to necessary caretakers of live stock, poultry, and fruit,' yet this exception permitted him to travel free of charge upon a 'free pass or free transportation,' and not as a passenger for hire on a free pass, which would be a contradiction in terms.
The Lockwood Case shows that live-stock contracts such as we have here, providing for the transportation of caretakers of stock on free passes, were in use by carriers as early as 1859 (17 Wall. 357, 365), and that they have continued in use up to this time is apparent from the decisions hereinbefore cited, from the cases at bar, and from many cited, from the case at bar, and from many C. R. Co., 238 Fed. 449. Notwithstanding the fact, as we have seen, that such transportation has been declared by a long line of decisions not to be 'free' in the popular sense, but to be transportation for hire, with all of the legal incidents of paid transportation, the carriers of the country have continued to issue it and to designate it as 'free.'
With this legal and commercial history before us we must conclude that the designation 'free pass,' as applied to transportation issued or given by railroad companies to shippers and caretakers of stock, had acquired a definite and well-known meaning, sanctioned by the decisions of this court and widely by the decisions of the courts of the various states, long prior to the enactment of June 29, 1906, and that, therefore, Congress must be presumed to have used the designation 'free pass' in the sense given to it by this judicial determination when, in § 1 of that act, by specific exception, it permitted the continuance of the then long established custom of issuing free transportation or passes to shippers or caretakers of live stock. Kepner v. United States, 195 U. S. 100, 49 L. ed. 114, 24 Sup. Ct. Rep. 797, 1 Ann. Cas. 655; Lawder v. Stone, 187 U. S. 281, 293, 47 L. ed. 178, 183, 23 Sup. Ct. Rep. 79; Sutherland, Stat. Constr. § 333.
It results that the 'settled rule of policy' established by the Lockwood Case, and the decisions following it, must be considered unmodified by the Act to Regulate Commerce; that the plaintiff in charge of his stock, traveling upon a pass permitted to be issued by that act, was a passenger for hire, and that defendant's first claim must therefore be denied.
The claim of the defendant that the plaintiff was unlawfully upon its train because its published tariff did not allow the issuing of such a pass as that which the plaintiff was using when injured is without merit.
The extract from the defendant's tariff, relied upon to sustain this claim, reads:
'Free or reduced transportation shall not be issued for shippers or caretakers in charge of live-stock shipments, whether carloads or less, and such shippers or caretakers shall pay full fare returning.'
It is sufficient answer to this claim to say that the railroad company is here defending under the release from liability contained in a contract of carriage, issued as required by law (§ 7 of the Act of June 29, 1906, 34 Stat. at L. 595, chap. 3591), pursuant to the published tariffs of its connecting, the initial, carrier, the Pennsylvania Railroad Company and it will not be heard in the courts to urge the inconsistent defense that its own tariff made unlawful this contract on which, in the alternative, it relies.
To this we add that passes for caretakers, not only to destination, but returning to point of shipment, were formerly general (Cleveland, P. & A. R. Co. v. Curran, 19 Ohio St. 1, 2 Am. Rep. 362), and in some parts of the country are still issued (Kirkendall v. Union P. R. Co. 118 C. C. A. 383, 200 Fed. 197, 200), and that, in our opinion, the...
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...without stating any reason except that the Hepburn Act had referred to passes as 'free.' Cf. Norfolk Southern R. Co. v. Chatman, 244 U.S. 276, 280, 281, 37 S.Ct. 499, 500, 501, 61 L.Ed. 1131, L.R.A.1917F, 1128. The Court then went further and upheld the pass stipulations for railroad exempt......
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...issued as a gratuity. Charleston, etc., Co. v. Thompson, 234 U. S. 576, 34 Sup. Ct. 964, 58 L. Ed. 1476;Norfolk, etc., R. Co. v. Chatman, 244 U. S. 276, 37 Sup. Ct. 499, 61 L. Ed. 1131, L. R. A. 1917F, 1128. [3] But where a carrier of passengers voluntarily undertakes to carry a passenger g......
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...discloses, but we think the answer is to be found by apt analogy in the decision of the Supreme Court in Norfolk Southern R. Co. v. Chatman, 244 U.S. 276, 37 S.Ct. 499, 61 L.Ed. 1131, L.R.A. 1917F, In the Chatman case, a drover, travelling on a pass in connection with the shipment of some h......
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