Van Zant v. Kansas City Southern Railway Company
| Decision Date | 11 July 1921 |
| Parties | ELIZABETH (GOODRICH) VAN ZANT v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. Grant Emerson, Judge.
Affirmed.
Cyrus Crane and Ray Bond for appellant.
(1) The question for decision is whether or not the stipulations on a free interstate pass are binding and enforcible and relieve defendant from liability. Such stipulations are controlled by Federal and not State law. Donovan v. Wells-Fargo, 265 Mo. 229; Bilby v. Ry. Co., 199 S.W. 1004; Holloway v. Railroad, 276 Mo. 500. (2) In the particular instance the Federal legislation is sufficient to put the matter under the operation of Federal law to the exclusion of State law. Leftridge v. Tel. Co., 277 Mo. 90, 97; Tel. Co. v. Lumber Co., 251 U.S. 27; Tel. Co. v. Boegli, 251 U.S. 315; Pryor v. Williams (recently decided by U. S. Supreme Court). (3) Under the decisions of the Supreme Court of the United States, the non-liability stipulations of the pass are binding and enforcible and constitute a complete defense. Charleston Ry. Co. v. Thompson, 234 U.S. 576; N. Pac. Ry. Co v. Adams, 192 U.S. 440; Boering v. Chesapeake Ry Co., 193 U.S. 442. Federal cases distinguished are Norfolk Railroad Co. v. Chatman, 244 U.S. 276; Pac. Ry. Co. v. Schuyler, 227 U.S. 601.
F. H. Lee, Kenney & Kenney, Norman Cox and Hugh Dabbs for respondent.
(1) It is conceded by appellant, for the purposes of this appeal, that the stipulation on the back of the pass in this case, as to the assumption of risk, is void under the laws of Missouri, where the injury occurred, and under the laws of Kansas, where the pass was issued. (2) The question of the validity of such a contract exempting from liability, and of the liability of a carrier for negligent injury to a person riding on a free pass, is not covered by nor within the matters regulated by the Hepburn Act relating to free passes and the issuing and using thereof. These questions constitute no part of the field covered by that act, nor was the regulation, control or enforcement of such liability taken over or dealt with by Congress by such enactment. In passing on such a question, even where the case is tried in the Federal court, that court does not determine the question of liability or non-liability by any provisions of the Hepburn Act, but by its own interpretation of the common law. Southern Pac. Co. v. Schuyler, 227 U.S. 610, 612; Weir v. Roundtree, 173 F. 779; Smith v. Ry. Co., 194 F. 81; Martin v. Pittsburgh Ry. Co., 203 U.S. 284; U. S. Comp. Sts. 1916 Anno., sec. 8563 (5), p. 9069; Wiley v. Grand Trunk Railroad, 227 F. 129; Beutler v. Grand Trunk Railroad, 224 U.S. 85; Clark v. Southern Ry. Co., 119 N.E. 539. Cases cited by analogy: Telegraph cases cited by appellant; Adams Exp. Co. v. Croninger, 226 U.S. 488, 504; Southern Pac. Ry. v. Jensen, 244 U.S. 244. (3) As to the instant case, under the decisions, federal legislation as to the carriers of passengers on a pass has not occupied the field of liability for injury to such a passenger. No attempt has been made to regulate or control this liabilty, and no mention made thereof. The same is true of contracts designed to exempt the carrier from such liability. The State court, or local forum is therefore left free to apply its local laws as to such liability. Southern Pac. Ry. Co. v. Schuyler, 227 U.S. 610-612; Clark v. Southern Ry. Co., 119 N.E. 539; Weir v. Roundtree, 173 F. 779; Smith v. A. T. & S. F. Co., 194 F. 81; Southern Pac. Ry. v. Jensen, 244 U.S. 244; Wiley v. Grand Trunk Ry., 227 F. 129. For illustration of the point by analogy and distinction of cases, see other cases cited under Point 2, and Fowler v. Railroad, 229 F. 375. The cases cited by appellant under its corresponding point are all cases dealing with the question of rates charged by telegraph companies, a subject which has been wholly taken over by Congress by express enactment. (4) Under the decisions of the United States supreme court and the Federal courts a distinction is made as to what law is applicable in determining the question of the validity of a contract of assumption of risk in connection with a free pass, depending on the forum in which the case was tried. The courts uniformly hold that where, as here, the stipulation on the back of the pass is void under the local law where the injury occurred, and where the case is tried in the State court and comes to the Federal court on writ of error, the State or local law as to liability will prevail, and be enforced by the Federal court on the review, whereas, if the case be tried in the Federal court, either by being brought there originally or transferred thereto by the process of removal, the Federal court will apply its own interpretation of the common law as to the liability. Williams, Jurisdiction & Practice in Federal Courts, p. 193, par. 4; Southern Pac. Ry. v. Schuyler, 227 U.S. 610; Weir v. Roundtree, 173 F. 779; Smith v. A. T. & S. F. Ry., 194 F. 81; Fowler v. Railroad, 229 F. 374; Tweeten v. Railroad, 210 F. 830; Charleston Ry. Co. v. Thompson, 234 U.S. 576.
Action for personal injury. Plaintiff was a member of the family of her son, John Goodrich, who resided at Pittsburg, Kansas. The latter was an employee of the defendant, and on August 4, 1917, he obtained from his employer for his mother a free pass over defendant's railroad from Pittsburg, to Howe, Oklahoma. On August 9, 1917, while riding on this pass, on one of defendant's passenger trains, enroute from Pittsburg, Kansas, to Howe, Oklahoma, and while passing through Newton County, Missouri, plaintiff was seriously injured through the negligent management and handling of the train by defendant's employees. On the back of the pass this condition was printed: "This pass is not transferable, must be signed in ink by the holder thereof, and the person accepting and using it thereby assumes all risk of accident and damage to person and baggage."
The case was tried without a jury. The defendant asked the court to declare as a matter of law that the stipulation on the back of the pass was valid and binding, and that by reason thereof plaintiff was not entitled to recover. This declaration was refused; the court found for the plaintiff and assessed her damages at $ 8,000, the sum that had been stipulated in advance to be so assessed, in the event the finding was for the plaintiff. From the judgment rendered in accordance with the finding and assessment of damages defendant appeals.
It seems to be conceded by appellant that under the law of this State, as declared by its courts, a person travelling on a free pass granted him by the carrier is a passenger and not a trespasser or mere licensee; that such person is entitled to the same degree of care as any other passenger, and may hold the carrier liable for injuries resulting from its negligence or that of its servants; and that a condition annexed to his pass attempting to relieve the carrier of the consequences of its negligence is ineffective because against public policy. [Bryan v. Railway, 32 Mo.App. 228; Huckstep v. Railway, 166 Mo.App. 330; Young v. Railway, 93 Mo.App. 267; Lemon v. Chanslor, 68 Mo. 340; Sherman v. Railroad, 72 Mo. 62; Padgitt v. Moll, 159 Mo. 143, 60 S.W. 121; Powell v. Railroad, 255 Mo. 420.]
Appellant contends, however, that, as plaintiff was travelling from one State to another on an interstate free pass, issued, as it alleges, in accordance with the provisions of the Hepburn Act (U. S. Comp. Stats. 1916, p. 9069, sec. 8653, sub-div. 5), the rule of decision, with respect to the validity of stipulations in such passes exonerating the carrier from liability for negligence, followed by the United States Courts, and not that followed by the courts of this State, should be applied in determining the question of defendant's liability.
In the trial of causes governed solely by common law in the United States courts, those courts follow their own understanding of the common law, regardless of the decisions of the courts of the State in which the cause of action arose. [Beutler v. Railroad, 224 U.S. 85; Fowler v. Railroad, 229 F. 373, 374.] And the former courts have always held that under the common law, irrespective of any act of Congress regulating interstate commerce, stipulations in a free pass exempting a carrier from liability for negligence are valid and enforceable. [Northern Pacific Railroad Co. v. Adams, 192 U.S. 440, 48 L.Ed. 513, 24 S.Ct. 408; Boering v. Railroad, 193 U.S. 442; Wiley v. Railroad, 227 F. 127, 129.] The instant case, however, having been instituted in a state court of this State, on a cause of action which accrued in this State, and having been tried in such state court, is to be determined in accordance with our applicable local state law, unless that law has been superseded by some act of Congress in the regulation of interstate commerce. [Adams Express Co. v. Croninger, 226 U.S. 491, 57 L.Ed. 314, 33 S.Ct. 148.]
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