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not stated separately in a passenger tariff does not render the contract to carry him invalid under the Act to Regulate Commerce. Separation of the rate in such a case is an administrative matter affecting the form of tariffs, which is committed to the Interstate Commerce Commission by § 6 of the Commerce Act, as amended, and concerning which the courts will not interfere in advance of application to the Commission.
222 Fed. Rep. 802, affirmed.
THE case is stated in the opinion.
Mr. C. M. Bain (by special leave), with whom Mr. John H. Small, Mr. W. B. Rodman and Mr. J. Kenyon Wilson were on the briefs, for plaintiff in error.
Mr. Charles Whedbee and Mr. P. W. McMullan for defendant in error.
MR. JUSTICE CLARKE delivered, the opinion of the court.
The judgment obtained in this case by the plaintiff in the District Court, W. C. Chatman, 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, N. C., 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
1 The provisions of the contract essential to be considered are, in substance, that the company had received from Chatman a carload of horses for transportation to Port Norfolk for Hertford, N. C., "with W. C. Chatman in charge;" and that it was received by the Pennsylvania Company "for itself and on behalf of connecting carriers for
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, Va., for Hertford, N. C., "W. C. Chatman, man
transportation, subject to the official tariffs, classifications and rules of the said company"; and "that the said shipper is at his own sole risk and expense to load and take care of and feed and water said stock whilst being transported . . . and neither said carrier nor any connecting carrier is to be under any liability or duty with reference thereto, except in the actual transportation of the same . . That the shipper shall see that all doors and openings in said car or cars are at all times so closed and fastened as to prevent the escape therefrom of any of the said stock." It further provided that in consideration of the premises and of the carriage of a person or persons in charge of said stock upon a freight train of said carrier or its connecting carriers without charge, other than the sum paid or to be paid for the transportation of the live stock in his or her charge, that the said shipper shall and will indemnify and save harmless said carrier and every connecting carrier from all claims and liabilities of every kind, by reason of personal injury sustained by the person in charge of said stock, whether the same be caused by the negligence of said carrier or any connecting carrier, or otherwise.
There was printed upon this contract, as a part of it, the following: "RELEASE FOR MAN OR MEN IN CHARGE.
"In consideration of the carriage of the undersigned upon a freight train of the carrier or carriers named in the within contract without charge, other than the sum paid or to be paid for the carriage upon said freight train of the livestock mentioned in said contract, of which livestock . . . in charge, the undersigned does hereby voluntarily assume all risks of accidents or damage to his person or property, and does hereby release and discharge the said carrier or carriers from every and all claims, liabilities and demands of every kind, nature and description for or on account of any personal injury or damage of any kind sustained by the undersigned so in charge of said stock, whether the same be caused by the negligence of the said carrier or carriers or any of its or their employees or otherwise.
(signature of man in charge) W. C. CHATMAN."
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 Pacific Ry. Co. v. Adams, 192 U. S. 440.
In Railroad Company v. Lockwood, 17 Wall. 357, 384, 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: Railway Company v. Stevens, 95 U. S. 655; Liverpool & Great Western Steam Co. v. Phenix Insurance Co., 129 U. S. 397; Baltimore & Ohio Southwestern
Ry. Co. v. Voigt, 176 U. S. 498, 505; Santa Fe, Prescott & Phoenix Ry. Co. v. Grant Brothers Construction Co., 228 U. S. 177, 184; Pierce Co. v. Wells, Fargo & Co., 236 U. S. 278, 283. This court continues of the opinion expressed by it in 1900, in Baltimore & Ohio Southwestern Ry. Co. v. Voigt, supra, 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. 584, prohibiting the issuance of any "interexcept
state free pass to necessary care takers 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 case at bar and from many recently reported cases. Tripp v. Michigan Central R. R. Co., 238 Fed. Rep. 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; Lawder v. Stone, 187 U. S. 281, 293; Sutherland on Statutory Construction, § 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. 595), pursuant to the published tariffs of its connecting, the initial carrier, the Pennsylvania Railroad Company,