Wabash R. Co. v. Barbour

• Decision Date: 14 April 1896
• Docket Number: 362.
• Citation: 73 F. 513
• Parties: WABASH R. CO. v. BARBOUR.
• Court: U.S. Court of Appeals — Sixth Circuit

73 F. 513

WABASH R. CO. v. BARBOUR.

No. 362.

United States Court of Appeals, Sixth Circuit.

April 14, 1896

This action was originally brought by the plaintiff, Edwin S Barbour, below, in the Wayne circuit court, against the Wabash Railroad Company, to recover damages for an injury sustained by the plaintiff while a passenger on the defendant railroad company's train running from Chicago to Detroit. Among other counts in the declaration was one averring that the plaintiff became a passenger on the train of the defendant leaving the city of Detroit for the city of Chicago, and occupied one of the sleeping berths on said train, and the said defendant then and there accepted and received the plaintiff as a passenger on said train, and, in consideration that the plaintiff then and there became liable to pay, and promised to pay, to the said defendant, the regular fare charged by it for passage from Detroit to Chicago, to wit, the sum of $8.50, the said defendant undertook to carry him on said train. After the filing of the declaration the defendant filed a petition for the removal of the cause to the circuit court of the United States for the Eastern district of Michigan, which was in the words following:

'State of Michigan, Circuit Court for the County of Wayne.

'Edwin S. Barbour vs. The Wabash Railroad Company. No. 32,694.

'Petition for Removal to United States Court, to the Circuit Court for the County of Wayne, Aforesaid.

'The petitioner, the Wabash Railroad Company, defendant in the above-entitled cause, shows to the court as follows:

'(1) That the matter and amount in dispute in the above-entitled cause exceeds, exclusive of interest and costs, the sum or value of two thousand dollars.

'(2) That this cause is a suit of a civil nature, at law arising under a law of the United States, to wit, an act entitled 'An act to regulate commerce,' approved February 4, 1887, and the amendments thereof, commonly called the 'Interstate Commerce Law.' That the facts in this cause, involving the construction of said law, so that this cause arises under said law, are that said plaintiff, Edwin S. Barbour, at the time he was a passenger on a train of the defendant, as set forth in the declaration, was traveling on a free pass granted to him by the defendant, from Detroit to Chicago and return, which pass exempted defendant from all liability for any injury to the plaintiff. And the defendant claims that said pass was good and valid by proper construction of said interstate law. And the plaintiff claims that the said free pass was utterly void and of no effect by reason of the provisions of the act of congress aforesaid. And said plaintiff accordingly claims, in the second count of his said declaration, that the defendant 'accepted and received the plaintiff as a passenger on said train, and, in consideration that the plaintiff then and there became liable to pay, and promised to pay, to the said defendant the regular fare charged by it for passage from Detroit to Chicago, to wit, the sum of $8.50, the said defendant undertook to carry him on said train, and in a sleeping car as aforesaid, from said city of Detroit to said city of Chicago,' which said count is framed on the theory, as plaintiff claims, that said plaintiff was and is bound by an implied promise to pay fare, because the pass which he held was utterly void by reason of the interstate commerce law aforesaid, and that the said conditions of said pass are not binding on plaintiff. But defendant claims that said pass was not made void by said law, but was good and valid, and its conditions binding on plaintiff. The said pass was issued to plaintiff as a stove manufacturer, attending a convention of such manufacturers at Chicago, and like passes were issued at the same time to all other stove manufacturers in Detroit going to said convention, and plaintiff and all said manufacturers were shippers of stoves by defendant's road. And defendant claims that the issuance of said pass was not a violation of said interstate law, forbidding unjust discrimination in transportation, where the service is like and contemporaneous, and under substantially similar circumstances and conditions, and that said pass was valid under said law, and the exemption therein binding on plaintiff, even if there was an unjust discrimination in its issue.

(3) Your petitioner offers herewith good and sufficient surety for the entry by it in the circuit court of the United States for the Eastern district of Michigan, on the first day of its next session, of a copy...