Under the free pass provision of the Hepburn Act of June 29,
1906, a free pass issued by a railroad company between interstate
points to a member of the family of an employee is gratuitous, and
not in consideration of services of the employe.
As a pass issued to a member of the family of an employee of a
railroad company is free under the provision of the Hepburn Act
permitting it to be issued, the stipulations contained in it and on
which it is accepted, including one exempting the company from
liability in case of injury, are valid.
Quaere whether, under § 6 of the Act to Regulate
Commerce, an interstate carrier can issue a pass in consideration
of services.
13 Ga.App. 528, 541, reversed.
The facts, which involve the liability of a railroad company to
a member of the family of an employee traveling on a free pass
issued by the company under the free pass provision of the Hepburn
Act, are stated in the opinion.
MR. JUSTICE HOLMES delivered the opinion of the Court.
The plaintiff, Lizzie Thompson, sued the railroad company, the
plaintiff in error, to recover for personal injuries inflicted upon
her while she was a passenger upon a train that was carrying her
from South Carolina to Georgia. The railroad pleaded that she was
traveling on a free
Page 234 U. S. 577
pass that exempted the company from liability, the same having
been issued to her gratuitously under the Hepburn Act of June 29,
1906, c. 3591, § 1, 34 Stat. 584, as wife of an employee. This plea
was struck out, subject to the defendant's exception. The defendant
also asked for an instruction that, if the plaintiff was traveling
on a free pass providing that the railroad should not be liable for
negligent injury to her person, she could not recover. This was
refused, and was made a ground for a motion for a new trial,
referring to the act of Congress. The motion was overruled,
seemingly on the notion that, by the state law, the defendant was
liable within the conditions of the free pass. The court of appeals
held such a stipulation binding in a free pass, but held that the
Hepburn Act created an exception, and that a so-called free pass
under that act, issued to a member of an employee's family, really
was not a free pass, but was issued upon consideration of the
services of the employee. After this writ of error was taken, it
modified its statement so as to say that the jury might infer that
the pass was issued for value. But no such issue was before the
jury, as the defense had been excluded altogether, and, apart from
other objections, we are of opinion that the change does not help
the decision. The railroad company assigns the construction of the
court of appeals and the two rulings below as error. There is a
motion to dismiss, but we are of opinion that a question is
presented under the act.
The main question is whether, when the statute permits the issue
of a "free pass" to its employees and their families, it means what
it says. The railroad was under no obligation to issue the pass. It
may be doubted whether it could have entered into one, for then the
services would be the consideration for the duty and the pass, and
by § 2 it was forbidden to charge "a greater or less or different
compensation" for transportation of passengers from that in its
published rates. The antithesis in the statute is
Page 234 U. S. 578
between the reasonable charges to be shown in its schedules and
the free passes which it may issue only to those specified in the
act. To most of those enumerated, the free pass obviously would be
gratuitous in the strictest sense, and when all that may receive
them are grouped in a single exception, we think it plain that the
statute contemplates the pass as gratuitous in the same sense to
all. It follows, or rather is saying the same thing in other words,
that, even on the improbable speculation that the possibility of
getting an occasional free pass entered into the motives of the
employee in working for the road, the law did not contemplate his
work as a conventional inducement for the pass, but, on the
contrary, contemplated the pass as being what it called itself,
free.
As the pass was free under the statute, there is no question of
the validity of its stipulations. This was conceded by the court of
appeals, as we have stated, and is established by the decisions of
this Court.
Northern Pacific Ry. Co. v. Adams,
192 U. S. 440;
Boering v. Chesapeake Beach Ry. Co., 193 U.
S. 442.
Judgment reversed.
By agreement of parties the judgment in No. 752 was to
follow the foregoing. Therefore in No. 752 also, the judgment is
reversed.