1. Basing jurisdiction on diversity of citizenship, certain
minor children sued an interstate railroad in a federal court in
Utah to recover damages for the death of their father, an employee
of the railroad, who was killed in Utah while riding the railroad
as an interstate passenger on a free pass, not in connection with
his duties as an employee. The pass provided that the user assumed
all risk of injury and absolved the railroad from any liability
therefor. Under instructions withholding an issue of the railroad's
ordinary negligence and submitting only an issue of its wanton
negligence, the jury found for the railroad.
judgment for the railroad affirmed. Pp.
333 U. S.
(a) In view of a subsequent decision of the Supreme Court of
Utah to similar effect, this Court cannot say that the Circuit
Court of Appeals committed plain error in holding that defenses
which would have been available in a suit by the decedent were
available in a suit by the heirs on a separate and distinct cause
of action created by Utah law, and therefore this Court will not
overrule that holding under Erie R. Co. v. Tompkins,
304 U. S. 64
333 U. S.
(b) Under the Hepburn Act, as amended by the Transportation Act
of 1940, the right of an employee of an interstate railroad to
recover damages for injuries sustained while riding on a free pass
is governed by federal law. Pp. 333 U. S.
Page 333 U. S. 446
(c) The well settled federal rule sustaining waivers of
liability for ordinary negligence contained in free passes issued
to employees by interstate railroads has become part of the warp
and woof of the Hepburn Act, as amended by the Transportation Act
of 1940. Pp. 333 U. S.
2. After a verdict has been rendered in a civil case in a
federal court, it is too late to object for the first time that the
jury was selected from a panel from which persons who work for
daily wages were intentionally and systematically excluded. Pp.
333 U. S.
162 F.2d 813, affirmed.
In a suit by minor children of a railroad employee to recover
damages for his death while traveling on a free pass as an
interstate passenger, the Circuit Court of Appeals affirmed a
judgment for the defendant. 162 F.2d 813. This Court granted
certiorari. 332 U.S. 835. Affirmed,
p. 333 U. S.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioners are the minor children of Jack R. Francis, who was
killed while riding as an interstate passenger on one of
respondent's trains. They brought this suit, acting through their
general guardians, to recover damages on account of his death.
Jurisdiction in the federal court was founded on diversity of
citizenship. The trial judge submitted to the jury only the
question of respondent's wanton negligence. The error alleged is
his refusal to submit to the jury the issue of ordinary negligence.
The jury returned a verdict for respondent. The Circuit Court of
Appeals affirmed. 162 F.2d 813.
Page 333 U. S. 447
The Circuit Court of Appeals held that Utah law creates a right
of action in the heirs for the wrongful death of the decedent, and
that the action is distinct from any which decedent might have
maintained had he survived. But the court held that the action is
maintainable only where the decedent could have recovered damages
for his injury if death had not ensued. In this case, the decedent,
an employee of respondent, was riding on a free pass not in
connection with any duties he had as an employee, but as a
passenger only. The Circuit Court of Appeals therefore held as a
matter of federal law that respondent would not have been liable to
decedent for damages caused by ordinary negligence, relying on
Northern Pacific R. Co. v. Adams, 192 U.
. It concluded that respondent had the same
defense against the heirs. We granted the petition for a writ of
certiorari to reexamine the relationship between local law and
federal law respecting the liability of interstate carriers under
In Van Wagoner v. Union Pac. R. Co.,
186 P.2d 293, 303,
decided after the petition for certiorari in the present case was
filed, the heirs sued to recover damages for the death of the
decedent in a grade crossing accident. The court held that a
defense of contributory negligence which would have barred recovery
by the decedent likewise bars the heirs. In view of this ruling by
the Utah Supreme Court we cannot say that the Circuit Court of
Appeals committed plain error in holding that respondent had the
same defenses against petitioners as it would have had against the
decedent. [Footnote 1
] Yet it
requires such showing of error for us to overrule the lower courts
Page 333 U. S. 448
their applications of Erie R. Co. v. Tompkins,
304 U. S. 64
See Palmer v. Hoffman, 318 U. S. 109
318 U. S. 118
MacGregor v. State Mutual Life Assur. Co., 315 U.
; Steele v. General Mills, 329 U.
, 329 U. S. 439
Cf. Wichita Royalty Co. v. City Nat. Bank, 306 U.
The free pass in the present case stated that
"the user assumes all risk of injury to person or property and
of loss of property whether by negligence or otherwise, and
absolves the issuing company . . . from any liability
In Northern Pacific R. Co. v. Adams, supra,
provision in a free pass was sustained as a defense to an action
brought under an Idaho statute by the heirs of a passenger.
] That was in 1904.
Page 333 U. S. 449
decision was soon followed by Boering v. Chesapeake Beach R.
Co., 193 U. S. 442
Then, in 1906, came the Hepburn Act, which, under pain of a
criminal penalty, prohibited a common carrier subject to the Act
from issuing a "free pass" except, inter alia,
employees and their families." 34 Stat. 584, 49 U.S.C. § 1(7).
Thereafter, in 1914, the Court held that the rule of the
case was applicable under the federal statute, and
that the "free pass" was nonetheless a gratuity, though issued to
an employee of the carrier. Charleston & W.C. R. Co. v.
Thompson, 234 U. S. 576
Kansas City So. R. Co. v. Van Zant, 260 U.
, followed in 1923 and held that the liability of
an interstate carrier to one riding on a "free pass" was determined
not by state law, but by the Hepburn Act. The Court said, 260 U.S.
at 260 U. S.
"The provision for passes, with its sanction in penalties, is a
regulation of interstate commerce, to the completion of which the
determination of the effect of the passes is necessary. We think,
therefore, free passes in their entirety are taken charge of not
only their permission and use, but the limitations and conditions
upon their use; or, to put it another way, and to specialize, the
relation of their users to the railroad which issued them, the fact
and measure of responsibility the railroad incurs by their issue,
and the extent of the right the person to whom issued acquires, are
taken charge of."
For years, this has been the accepted and well settled
construction of the Hepburn Act. During that long period, it stood
unchallenged in this Court and, so far as we can ascertain, in
Congress, too. Then came the Transportation Act of 1940, 54 Stat.
898, 900, with its comprehensive revision of the statutes of which
the Hepburn Act was part. Amendments were made to the free pass
provision of the Act to permit free transportation of additional
classes of persons. [Footnote
] No other amendments to the
Page 333 U. S. 450
free pass provision were made. It was reenacted without further
change or qualification. In view of this history, we do not reach
the question of what construction we would give the Hepburn Act
were we writing on a clean slate. The extent to which we should
rely upon such history is always a difficult question which has
frequently troubled the Court in many fields of law and with varied
results. See Girouard v. United States, 328 U. S.
, 328 U. S. 69
Helvering v. Hallock, 309 U. S. 106
309 U. S. 119
309 U. S. 123
But, in the setting of this case, we find the long and well settled
construction of the Act plus reenactment of the free pass provision
without change of the established interpretation most persuasive
indications that the rule of the Adams, Thompson,
cases has become part of the warp and woof of the
legislation. See Missouri v. Ross, 299 U. S.
, 299 U. S. 75
United States v. Elgin, J. & E. R. Co., 298 U.
, 298 U. S. 500
United States v. Ryan, 284 U. S. 167
284 U. S. 175
Hecht v. Malley, 265 U. S. 144
265 U. S. 153
Electric Storage Battery Co. v. Shimadzu, 307 U. S.
, 307 U. S. 14
state law which conflicts with this federal rule governing
interstate carriers must therefore give way by virtue of the
Supremacy Clause. For it was held in the Van Zant
that the free pass provision of the Hepburn Act was a regulation of
interstate commerce "to the completion of which the determination
of the effect of the passes is necessary." Thus, there is no room
for the application of Erie R. Co. v. Tompkins, supra,
this phase of the case. The Van Zant
case arose not in a
lower federal court, but in a state court; the holding was not a
declaration of a "general commercial law," but a ruling that "[the]
incidents and consequences" of the pass were controlled by the
federal act "to the exclusion of state laws and state policies."
260 U.S. at 260 U. S. 469
Petitioners contend that the jury panel from which the jury in
this case was selected was drawn contrary to Thiel v. Southern
Pacific Co., 328 U. S. 217
do not stop
Page 333 U. S. 451
to inquire into the merits of the claim. The objection was made
for the first time in the motion for a new trial. It seems to have
been an afterthought, as the Thiel
case was decided a few
weeks after the verdict of the jury in the present case. If not an
afterthought, it is an effort to retrieve a position that was
forsaken when it was decided to take a gamble on the existing jury
panel. In either case, the objection comes too late. Cf.
Queenan v. Oklahoma, 190 U. S. 548
190 U. S. 552
The Utah Supreme Court, in its original opinion in the Van
case, stated that the right granted the heirs is a
"right to proceed against the wrongdoer subject to the defenses
available against the deceased, had he lived and prosecuted the
suit." On petition for rehearing, that statement was eliminated and
the following one substituted: "Under the facts of this case, the
right to proceed against the wrongdoer is subject to the defense of
contributory negligence." 189 P.2d 701.
That ruling is no deviation from the Utah law as construed by
the lower federal courts. It supports the view of Utah law taken by
the Circuit Court of Appeals, and is in line with the weight of
authority in the state courts. See Mellon v. Goodyear,
277 U. S. 335
277 U. S.
-345. Hence, we do not deem it appropriate to remand
the case for consideration of the intervening decision in the
case. Cf. Huddleston v. Dwyer,
322 U. S. 232
The Court said, 192 U.S. at 192 U. S. 453
"The railway company was not, as to Adams a carrier for hire. It
waived its right as a common carrier to exact compensation. It
offered him the privilege of riding in its coaches without charge
if he would assume the risks of negligence. He was not in the power
of the company, and obliged to accept its terms. They stood on an
equal footing. If he had desired to hold it to its common law
obligations to him as a passenger, he could have paid his fare and
compelled the company to receive and carry him. He freely and
voluntarily chose to accept the privilege offered, and, having
accepted that privilege, cannot repudiate the conditions. It was
not a benevolent association, but doing a railroad business for
profit, and free passengers are not so many as to induce negligence
on its part. So far as the element of contract controls, it was a
contract which neither party was bound to enter into, and yet one
which each was at liberty to make, and no public policy was
H.R.Rep. 2016, 76th Cong., 3d Sess., p. 59.
MR. JUSTICE BLACK, with whom MR. JUSTICE MURPHY and MR. JUSTICE
RUTLEDGE join, dissenting.
Utah law permits recovery against a railroad when its negligence
is responsible for a passenger's death, whether that passenger
rides on a free pass containing an attempted waiver of liability
for negligence or pays his fare in money. Because I believe Utah
law should govern this case, I would reverse this judgment. But I
think affirmance of the judgment is equally wrong whether the case
is to be considered governed wholly by Utah law, by federal law, or
in part by both
No act of Congress has entrenched upon the long existing power
of all the states, including Utah, to provide damages for such
wrongful deaths as this complaint alleged. If there is here any
barrier to recovery based upon federal law, it is grounded in
judge-made "general commercial law" announced by this Court in the
year 1904 in Northern Pac. R. Co. v. Adams, 192 U.
. The rule laid down in that case was that a
railroad could, by stipulation, validly exempt itself from
liability under a state statute for negligent injuries inflicted
within that state upon passengers carried wholly gratuitously.
Creation of the 1904 Adams
rule by this Court was under
authority of a power then exercised, but repudiated in 1938 in
Erie R. Co. v. Tompkins, 304 U. S. 64
Page 333 U. S. 452
federal courts, in passing upon questions of state law upon
which there was no controlling state legislative enactment,
declared the "general commercial law" of a state on the federal
court's notion of wise public policy, independently of state court
This Court followed the Adams
"general commercial law"
state rule several times between its creation in 1904 and
repudiation of this Court's power to create state law in 1938 --
the last application of the Adams
rule having been made by
this Court in 1923 in Kansas City So. R. Co. v. Van Zant,
260 U. S. 459
That decision stated that an act of Congress had made the effect of
the conditions in an employee's pass a federal question, but
decided that "federal" question entirely by reliance on the old
"general commercial law" state rule. Since the
decision in 1938, and in fact since 1923,
rule has never been applied by this Court until
today. Now it is applied not as a federally created state rule of
"general commercial law," but as a judicially created
rule of purely federal law. While this
Court may look to the 1904 pre-Erie-Tompkins
state rule of
general commercial law "as a convenient source of reference for
fashioning" a post-Erie-Tompkins
Clearfield Trust Co. v. United States, 318 U.
, 318 U. S. 367
it should not, as the Court does here, automatically accept the old
state rule as a federal rule without any appraisal of its soundness
in relation to present day conditions. No such appraisal has been
made here. The old Adams
rule, questionable enough in its
1904 environment, should, in my judgment, be critically examined
and then abandoned as wholly incongruous with the accepted pattern
of our modern society as embodied in legislative enactments.
Furthermore, the 1904 Adams
rule, even in its original
narrow scope, marked a departure from the philosophy of this
Court's previous decisions. One subsequent line
Page 333 U. S. 453
of the Court's decisions has tended to limit the 1904 rule's
scope, while another has tended to expand it. Today's opinion
expands that rule beyond any point it has before reached. As
indicated, I think the Adams
"general commercial law"
state rule is an obstacle to the execution of present congressional
policies embodied in statutes. That obstacle, I think, should be
removed by this Court, which fashioned the old rule. In any event,
I certainly would not expand the old Adams
rule to cover
the facts of this case.
It should be noted at the outset that tort law has been
fashioned largely by judges, too largely according to the ideas of
many. But if judges make rules of law, it would seem that they
should keep their minds open in order to exercise a continuing and
helpful supervision over the manner in which their laws serve the
public. Experience might prove that a rule created by judges should
never have been created at all, or that their rule, though
originally sound, had become wholly unsuited to new physical and
social conditions developed by a dynamic society. A revaluation of
social and economic interests affected by the old rule might reveal
the unwisdom of its expansion, or imperatively require its revision
The Court's uncritical reliance today on the 1904 judicially
created rule, which to me is both undesirable and uncertain in
scope, emphasizes one of the inherent dangers in judge-made laws
pointed out by an eminent legal commentator in the field of tort
law. Professor Bohlen, in his Studies in the Law of Torts, 610-611
(1926), had this to say about "dangers" of court-made tort
"The first is that of the undue rigidity which results from the
unfortunate feeling that any decision of a court creates a rule of
law which, as law, is absolutely and eternally valid. . . . To
regard a standard of conduct as fixed
Page 333 U. S. 454
and immutable because judicially announced is to create a
standard which, however just or even necessary at the time, may
become a scandal and a hissing in the future. [Footnote 2/1
In 1944, Jack Francis, age 30, his wife, age 29, and their three
children, ages 3, 6, and 8, lived in Carlin, Nevada. Jack was then
and had been for several years a conductor and brakeman for the
respondent, Southern Pacific Company. His father, Ray E. Francis,
had served the respondent in the same capacity for 35 years. The
elder Francis and his wife lived in Ogden, Utah, and the young
Francis family visited them Christmas week. In the early morning of
December 31, Jack and his wife boarded a Southern Pacific train at
Ogden bound for Carlin. They took seats in the rear car. Both had
passes granted by the respondent because the husband was its
employee. Each pass contained a printed stipulation that the user
assumed "all risk of injury to person" and absolved the railroad
"from any liability therefor." A short distance out of Ogden, while
the train was still
Page 333 U. S. 455
in Utah, an engine and train of cars crashed into the rear car.
Husband and wife were killed.
This is one of two suits brought against the railroad by the
grandparents as guardians of the three children to recover damages
on account of their parents' deaths. The actions were brought under
a Utah law, since Congress has never passed any act which provides
remedies against railroads for negligently injuring or killing
railroad passengers, even interstate passengers on interstate
railroads. Whether passengers or their dependents shall have a
right of action under such circumstances has been a question left
by Congress for regulation by the state in which the injury or
death occurred. See, e.g., Chicago, R.I. & P. R. Co. v.
Maucher, 248 U. S. 359
248 U. S. 363
cases collected in 76 A.L.R. 428-435.
For many years, the states did not generally authorize suits for
wrongful death. Their omission of such remedies was due to
traditional "common law" hostility to recoveries for death. This
hostility provoked much lay criticism, echoes of which may be found
in the cases cited below. [Footnote
] About the middle of the last century, because of
"dissatisfaction with the archaisms of the common law," state
legislatures began to abolish the common law rule by specifically
authorizing suits for wrongful death, and now all states have such
statutes. Van Beeck v. Sabine Towing Co., 300 U.
, 300 U. S. 346
300 U. S. 351
So strong is Utah's antipathy to the common law attitude that art.
XVI, § 5, of the Utah Constitution forbids the state legislature to
abrogate the right to recover damages for wrongful death. This suit
for damages was brought under the
Page 333 U. S. 456
Utah statute enacted in accordance with that state
constitutional policy. Utah Code Ann. § 104-3-11 (1943). And, in a
case involving a federal wrongful death statute, this Court has
said "It would be a misfortune if a narrow or grudging process of
construction were to exemplify and perpetuate the very evils to be
remedied" by such statutes. Van Beeck v. Sabine Towing Co.,
at 300 U. S.
One count of the complaint here alleged ordinary negligence; the
other alleged gross negligence. Either type of negligence would
justify a recovery under the Utah statute. And since the complaint
claimed recovery under the Utah statute, liability, if any, springs
from that statute. See Spokane & I.E. R. Co. v.
Whitley, 237 U. S. 487
237 U. S.
-495. Under Utah law, the railroad here could not
have defeated liability in this case on the ground that the passes
stipulated that the users would assume the risk of injury. The
trial judge charged the jury, however, that, because of opinions of
this Court, the pass exemption stipulation was valid, and barred
recovery "for just ordinary negligence." The Circuit Court of
Appeals affirmed on the basis of this Court's Adams
cases. 162 F.2d 813, 816. The action of the two
lower courts was in accordance with their interpretation of this
Court's opinions, notwithstanding the fact that, long ago, the Utah
Supreme Court, in declaring state law, rejected such a contention
in the following language:
"It is argued that, even if the ticket was a free pass,
gratuitously possessed, with the conditions printed thereon, still
the defendant could not escape liability for its negligence. We
believe the plaintiff is [right] in this contention."
Williams v. Oregon Short Line R. Co.,
18 Utah 210, 221,
54 P. 991, 994, 72 Am.St.Rep. 777. See also Houtz v. Union
Pacific R. Co.,
33 Utah 175, 179, 93 P. 439, 441; Hansen
v. Oregon Short Line R. Co.,
55 Utah 577, 581, 582, 188 P.
852, 854. This
Page 333 U. S. 457
Court has itself recognized and acted on the fact that it is the
law of Utah that,
"when a common carrier accepts a person as a passenger, he is
not permitted to deny that he owes to him the duty of diligence,
prudence, and skill which, as carrying on a public employment, he
owes to all his passengers, and that he cannot escape liability for
a negligent performance of that duty, resulting in injury, by
urging that the pass or commission was issued, or the gratuitous
carriage permitted by him, in violation of law."
Southern Pac. Co. v. Schuyler, 227 U.
, 227 U. S.
In the Schuyler
case, this Court sustained a Utah
judgment under the Utah wrongful death statute, which judgment
permitted recovery for death of a gratuitous passenger killed while
riding free, although assuming he was
Page 333 U. S. 458
not a member of a group to whom the carrier might lawfully issue
passes under the Hepburn Act. The Schuyler
case held that
the Hepburn Act did not deprive Schuyler, who violated it, "of the
benefit and protection of the law of the state," because "such a
violator" was "a human being, of whose safety the plaintiff in
error [railroad] had undertaken the charge." Jack Francis and his
wife were not violators of the Hepburn Act or any other act,
federal or state. Each of them "was a human being of whose safety
the railroad had taken charge." But, by today's decision, their
children are denied the benefit of Utah's law. A federal rule of
law is said to compel this Court to bar recovery under Utah's
What is this federal rule of law? Where did a rule emanate which
today constrains this Court, without appraisal of the rule's scope
or merits, to deny these children a right to recover damages from a
railroad that negligently killed their parents? I say "negligently
killed" because that must be assumed, since the Court affirms a
judgment against the children in a case where the jury was denied a
right to award damages for a killing caused by the "ordinary
negligence" of the railroad.
The Court points to no records, and I can find not a single
shred of evidence that Congress has ever directly or indirectly,
explicitly or impliedly, through the Hepburn Act or through any
other act, authorized railroads to contract against liability for
their negligence which results in the injury or death of a railroad
employee or any other person legally riding on a railroad pass. The
original rule, followed in an expanded form by the Court today, is
actually a judicial product of the old days of Swift v.
16 Pet. 1, days in which federal courts
invoked "a transcendental body of law outside of
Page 333 U. S. 459
any particular State . . . using their independent judgment as
to what it was." Holmes, J., dissenting, Black & White
Taxi. Co. v. Brown & Yellow Taxi. Co., 276 U.
, 276 U. S.
As already pointed out, our decision in Erie R. Co. v.
repudiated in toto
the old Swift
"transcendental" or "general commercial law" power of
federal courts. But, as I see this case, the Court now perpetuates
and strengthens the old rule based on the repudiated Swift v.
doctrine, and the rule applied today rests on no other
foundation than a completely uncritical adoption of this Court's
1904 "independent judgment." That judgment held it to be bad public
policy -- indeed, offensive to the Court's "moral sense" -- for a
state to provide that an injured passenger who rode on a wholly
gratuitous and guest basis could recover damages if a railroad had
cautiously stipulated in advance that such a free passenger must
assume the risks of railroad negligence. An investigation of the
evolution of the "rule" from its 1904 beginning and application to
its much broader application today will demonstrate, I believe,
that it is rooted now, as in 1904, in nothing but the original
"transcendental general law" source.
The background of the 1904 rule throws light on its judicial
"general law" origin. In 1852, this Court was unable to find any
difference between the kind of duty owed by a railroad to its
paying and nonpaying passengers; "public policy and safety" were
held to require that a railroad exercise "the greatest possible
care and diligence" for the safety of all passengers, and any less
measure of care entitled an injured passenger to recover.
Philadelphia & Reading R.
Co. v. Derby,
14 How. 468,
Page 333 U. S. 460
55 U. S.
-486. [Footnote 2/4
This principle was reaffirmed the next year in a water carriage
case "as resting not only on public policy, but on sound principles
of law." The Steamboat New World v.
16 How. 469, 57 U. S. 474
to the same effect, New York
Cent. R. Co. v. Lockwood,
17 Wall. 357,
84 U. S.
-383, this Court, in an elaborate and well reasoned
opinion, held that it was against the public interest and public
policy to permit common carriers to stipulate against the results
of the negligence of themselves or their agents, and that, while
the rule applied both to carriage of goods and passengers, it
applied with "special force to the latter." New York Cent. R.
Co. v. Lockwood, supra,
at 84 U. S. 384
passenger in the Lockwood
case was a drover traveling on a
free pass to look after cattle; the Court reserved decision as to
whether the rule would apply to a strictly free passenger. Four
years later, the Court applied the same reasoning to a
railroad-designated "free pass" passenger, finding that, in fact,
there was consideration for the carriage, and that it was not a
"matter of charity" or a "mere gratuity." Grand Trunk R. Co. of
Canada v. Stevens, 95 U. S. 655
95 U. S.
-660. The Lockwood
cases plainly stand for the principle that, where there is any
benefit derived by the railroad, a pass is not "free," and that a
passenger riding on such a pass may
Page 333 U. S. 461
recover for injuries due to the railroad's negligence,
regardless of stipulations in his pass.
In the Lockwood
case, this Court refused to follow
decisions of the Supreme Court of New York, the State where the
carriage contract was made and where the accident occurred, but,
instead, since there was no controlling New York statute, expressly
decided the point as one of "general commercial law." 17 Wall. at
84 U. S. 368
And see Chicago, Milwaukee & St. P. R. Co. v. Solan,
169 U. S. 133
169 U. S.
-137. Out of this "general commercial law" background
emerged the "rule" relied on by the Court in the Adams
The beginning of the doctrine that a railroad could be
stipulation exempt itself from liability for negligent injury to
strictly free passengers was in Northern Pac. R. Co. v. Adams,
and Boering v. Chesapeake Beach R. Co.,
193 U. S. 442
both decided in 1904. The decisions in these cases bear internal
proof that they rested on the "general commercial law" ground. The
opinion treated the newly announced doctrine as no
more than a special exception to the rule of "general commercial
law" of the Lockwood
case, which rule denied railroads
power to exempt themselves from the effects of their negligence
through the device of "free" passes.
As bearing on the narrow scope of the Adams
its "transcendental law" origin, it is of importance that the
cases were decided in 1904, two
years before Congress outlawed political passes in the Hepburn Act.
There existed at that time a widespread hostility to the use of
"strictly free" railroad passes. The pass in the Boering
case, as well as in the Adams
case, was "strictly free."
Adams, the deceased, was a lawyer, but not employed by the railroad
that gave him the pass. Many believed, as shown by the legislative
history of the
Page 333 U. S. 462
Hepburn Act, that railroads were using passes to influence
public men to favor railroads at the expense of the public good.
Consequently, pass givers and pass users of "strictly free" passes,
as distinguished from givers and users of employees' passes, were
in bad repute. The Adams
plainly reflect this sentiment. Both decisions spotlighted the
importance of having "those who accept gratuities and acts of
hospitality" stand by their contracts to assume the risks of injury
incident to riding. In the Lockwood
cases, where no money was paid for passage, but neither carriage
was strictly free, interests of the public in a carefully operated
railroad system were expressly held to outweigh sanctity of
contracts and all other considerations; in the Adams
cases, sanctity of contracts, particularly
contracts made to obtain strictly free transportation, was given
greater weight than the public's interest in safe transportation.
] But all the cases
alike turned out judge-made rules of "general commercial law." Now
let us follow the Adams
rule to its appearance in other
cases relied on by the Court today for the statement that this rule
of "general commercial law" has become part of the "warp and woof"
of the Hepburn Act.
Charleston & W.C. R. Co. v. Thompson, 234 U.
, is the next case relied on here. It was decided
in 1914, eight years after passage of the Hepburn Act, which had,
with certain exceptions, prohibited issuance of passes by
railroads. 34 Stat. 584, 49 U.S.C. § 1(7). The suit was brought by
the wife of a railroad employee to recover for injuries sustained
by her while an interstate railroad
Page 333 U. S. 463
passenger riding on a pass. The Court of Appeals of Georgia
considered it to be the general rule that strictly free pass
passengers could not recover for injuries if their passes contained
a stipulation requiring the passenger to assume the risk of
railroad negligence. But that court went on to hold that the
Hepburn Act, by specifically authorizing issuance of passes to
railroad employees and their families, had put them in a different
category from "purely gratuitous" passengers. The court regarded
passes issued to members of an employee's family as partial
compensation for the employee's services, and for that reason
distinguished persons riding on such passes from strictly free pass
passengers, to whom the harsh Adams
rule applied. 13 Ga.
App. 528, 80 S.E. 1097. This Court reversed, saying that "[t]he
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." It did not find that the pass on which the injured wife of
the employee had ridden was free in fact, but held that the "pass
was free under the statute," thereby treating employees' passes as
though they were strictly free, without stating any reason except
that the Hepburn Act had referred to passes as "free." Cf.
Norfolk Southern R. Co. v. Chatman, 244 U.
, 244 U. S.
-281. The Court then went further and upheld the pass
stipulations for railroad exemption from liability for negligence.
But the Court did not at all rely on the Hepburn Act for this
latter holding. Instead, it was said that, "[a]s the pass was free
under the statute . . . , the validity of its stipulations" was
"established by the decisions of this court," relying completely
upon the Adams
cases. Thus, the
Charleston & W.C. R. Co.
case did not discover the
rule in an act of Congress; the rule it relied on
had been judicially created in 1904 by an exercise of the Court's
"transcendental" law power.
Page 333 U. S. 464
Kansas City So. R. Co. v. Van Zant, 260 U.
, decided in 1923, is the next and the last case
relied on by the Court today. That case decided that the "incidents
and consequences" of an employee's pass raise a federal question.
Cf. Southern Pac. Co. v. Schuyler, 227 U.
, 227 U. S. 610
Chicago R.I. & Pac. R. Co. v. Maucher, 248 U.
, 248 U. S. 363
then repeated the statement made in Charleston & W.C. R.
Co. v. Thompson, supra,
that an employee's pass transportation
is "free," again without any explanation of why. To this extent, it
may be said that the Court was then construing the Hepburn Act,
though I think its construction was wrong. But the Court did not,
even in this last case (1923), hold or intimate that the Hepburn
Act of itself put employee pass passengers in a separate class, to
be negligently killed or injured with impunity. To degrade railroad
employee passengers to this unfortunate level, this Court, in the
case again relied on the rule it had fashioned in
decisions. So long as one
agreed with the soundness of the Adams
case rule and with
this Court's exercise of a power to declare "general commercial
law" under the Swift v. Tyson
doctrine, the result of the
case could not be questioned in 1923. But that
was fifteen years prior to Erie R. Co. v. Tompkins, supra,
in which we abandoned the "transcendental" law doctrine, as
typified by the Adams
rule, and today's decision is ten
years after we took that salutary step.
In applying this pre-Erie-Tompkins
transcendental law rule at this time, the Court not only in part
neutralizes our Erie-Tompkins
decision. It actually leaves
a rule standing which might have already fallen under the
repudiated Swift v. Tyson
doctrine so far as it governed.
For, though a purely transcendental law rule judicially created by
this Court under the pre-Erie-Tompkins
"nonetheless the law of the
Page 333 U. S. 465
state," it need only have remained the "law of the state" until
"changed by its legislature." Chicago, Milwaukee & St. P.
R. Co. v. Solan, 169 U. S. 133
169 U. S.
-137. Hence, had the Swift-Tyson
not been repudiated, the Adams
rule, as applied to persons
injured in Utah, should have fallen of its own weight had the Utah
legislature passed a law authorizing a man's children to recover
from a railroad that negligently killed their parents while they
were "free pass" passengers. Utah has a statute broad enough to
authorize such recoveries. The only barrier to recovery under that
state statute is grounded on a court-announced "commercial law"
rule, a poor excuse indeed for depriving a state of exercising its
traditional power to control actions for local wrongful deaths. Of
course, this is an interstate carrier, and we should not constrict
congressional powers over it by narrow statutory interpretations.
Cf. Federal Trade Comm'n v. Bunte Bros., 312 U.
. But the very absence of a federal statute to
take the place of local wrongful death statutes should be the
equivalent of a loud congressional warning to courts to refrain
from encroaching on state powers here.
It is said, however, that Congress, although aware of the
transcendental law rule, has never changed it.
Indulging for the moment the convenient fiction that Congress knows
all about that rule and what it means, why should it think that old
rules laid down by this Court and based on the Swift v.
doctrine could survive our decision in Erie R. Co.
? And why should Congress think that a rule which
had never been applied by this Court to bar the children of a
deceased employee would be extended to bar recovery by those
children? I venture the suggestion that it would be shocking to
members of Congress, even those who are in closest touch with
Page 333 U. S. 466
interstate commerce legislation, to be told that their "silence"
is responsible for application today of a rule which is out of step
with the trend of all congressional legislation for more than the
past quarter of a century. There are some fields in which
congressional committees have such close liaison with agencies in
regard to some matters that it is reasonable to assume an awareness
of Congress with relevant judicial and administrative decisions.
But I can find no ground for an assumption that Congress has known
about the Adams
rule and deliberately left it alone
because it favored such an archaic doctrine. [Footnote 2/6
] I reject the idea that Congress ever has
approved such a rule, and none of its legislation for the past
quarter of a century indicates that it ever would have approved
The legislative history of the Hepburn Act's free pass provision
shows that application of the Adams
doctrine to employees'
passes is not in accordance with, but directly hostile to, the
congressional purpose in permitting employee passes. That Congress
never would have passed an Act which so penalized employees, may be
seen by reading even the few portions of the Congressional
Page 333 U. S. 467
and committee reports cited below. [Footnote 2/7
] In very brief summary, that history
Prior to 1906, there grew up a demand by the people that
railroads cease discriminating against some shippers in favor of
others and cease using free passes as a means to obtain special
favors from public officials and administrative agencies. Public
complaint was not against employees using passes. In fact, some
unions had bargaining agreements for passes, and Congressmen who
spoke on the Hepburn bill considered employees' passes to be a part
of the inducement to work for railroads. Passes were spoken of by
those who discussed legislation on the House and Senate floors as
part of the compensation of employees. The subject was an important
one, and was so treated. At one time, a conference report
recommended to both houses that all passes be prohibited. 40
Cong.Rec. 7741. This report was defeated, and the debates
Page 333 U. S. 468
that it would have been difficult to pass a bill which failed to
permit issuance of passes to railroad employees -- not in the
spirit of giving alms to beggars or favors to politicians, but to
requite men for faithful work.
If any senator or congressman discussing the Hepburn Act had
ever heard of the Adams
rule, he failed to mention it. But
it must be conceded there was no reason for him to mention it,
since the purposes of the Act bore no relation, directly or
remotely, to liability of a railroad for injury to passengers,
whether riding on passes or paying their fares. Even if some member
of Congress has been acquainted with the Adams
had thought that the Hepburn Act bore some remote relation to the
liability of railroads for injury to passengers, still he would
have had no reason to believe this Court would subsequently expand
that rule, then applicable only to "strictly free pass" passengers,
to penalize employees and other authorized by Congress to ride on
passes. As I see it, today's decision undermines the purpose
Congress had in mind in approving the longstanding practice of
employees' passes. It perverts an advantage expressly saved to
employees into a penalty for making use of it. It makes traps of
Moreover, the subjection of railroad employees while passengers
to the hazards of uncompensated injuries is at war with the basic
philosophy which has found expression in other industrial and
social legislation for many years. Employers' liability acts,
compensation acts, social insurance legislation of the federal
government and various states, and a host of other legislative
policies have been grounded upon the basic premise that care of the
accidentally injured should be accepted as a matter of great public
concern. Congress has also erased every vestige of the old
judicially created fellow servant and
Page 333 U. S. 469
assumption of risk doctrines in connection with suits by
railroad employees on account of injuries suffered in the course of
their employment. Tiller v. Atlantic Coast Line R. Co.,
318 U. S. 54
analogy between these now repudiated judicially created tort law
doctrines and the present rule was pressed on the Court in briefs
for the railroad in the Adams
case. Congress has also
emphatically outlawed all kinds of stipulations and contracts to
exempt railroads from liability for their negligence in Employers'
Liability Act cases. Duncan v. Thompson, 315 U. S.
. All of this body of legislation, and much more to
which reference could be made, has departed from the premise of the
decisions that it is more
important to society that men abide by ticket and contract
stipulations [Footnote 2/8
] than it
is to have a system which provides compensation for the
industrially injured and the dependents of those who are killed.
For our society attempts to take care of its aged, unemployed,
crippled, and disabled, as well as the dependents of those killed
by our industrial machine. See Georgetown College v.
76 U.S.App.D.C. 123, 130 F.2d 810, 822-825;
Interstate Commerce Comm'n v. Railway Labor Assn.,
315 U. S. 373
315 U. S.
-378. And the present railroad regulatory system is
such that payment by railroads for injuries inflicted by them upon
passengers is just as certainly borne by the public as though those
injured and their dependents were directly supported by
Whether allowance of damages for negligent death is the best way
to meet the problems incident to transportation
Page 333 U. S. 470
dangers is beside the point. Many courts generally, including
this one and Utah's, may have been wrong in thinking that the
possibility of having to pay damages for deaths of passengers due
to railroad negligence would make railroads more cautious.
] Perhaps society
could take care of injured passengers and their dependents in a
less wasteful manner. But, so long as Congress leaves the state
free to adopt this method of meeting the problem, I think this
Court should not handicap the states. Congress could provide a
substitute for the state laws; we cannot.
Today's decision leaves states free to provide that railroads
must pay for injury or death of passengers who can and do pay a
full money fare for passage. This group is far more likely to
include some people who are better able financially to take care of
themselves in case of injury than are the members of some of the
other groups permitted by the Hepburn Act to ride on free passes,
all of whom are penalized by today's decision. These groups are in
addition to railroad employees and their families, employees of
other railroads; ministers of religion; Young Mens Christian
Association workers; inmates of eleemosynary institutions;
indigent, destitute, and homeless persons; disabled soldiers, and
others in analogous categories. In following a course today
Page 333 U. S. 471
takes all of the above groups out from under the protection of
state laws, the Court ignores the signs erected by Congress, all of
which point in the opposite direction. Assuming the Court is right
in saying that a rule with such consequences has become a part of
the warp and woof of the Hepburn Act, it is a defective part which
this Court alone has woven into the Act, and which clashes with the
congressionally fashioned fabric and design. The result is a motley
pattern. I would restore the original congressional design.
No sound argument has been or can be advanced for application of
the 1904 Adams
rule in today's entirely different judicial
and legislative environment, even as the rule was first narrowly
applied to a purely gratuitous carriage, except that it was
unquestioningly accepted 34 and 25 years ago in cases where the
rule's soundness was not challenged. When precedent, and precedent
alone, is all the argument that can be made to support a
court-fashioned rule, it is time for the rule's creator to destroy
The Van Zant
case did hold that, since the Hepburn Act,
the "incidents and consequences" of an employee's pass raised a
federal question. It then held that the user of an employee's pass
must stand by his contract to assume the risks of negligent injury
by the railroad. Neither it, nor any other case since the Hepburn
Act, until the case today, has held that the penalizing
consequences of the father's contract must be visited upon his
children. I would not so extend the more than dubious Van
Mr. Justice Cardozo said this about the quest for unvarying and
eternal certainty in the law:
"I was much troubled in spirit, in my first years upon the
bench, to find how trackless was the ocean on which I had embarked.
I sought for certainty. I was oppressed and disheartened when I
found that the quest for it was futile. . . . As the years have
gone by, and as I have reflected more and more upon the nature of
the judicial process, I have become reconciled to the uncertainty,
because I have grown to see it as inevitable. I have grown to see
that the process in its highest reaches is not discovery, but
creation, and that the doubts and misgivings, the hopes and fears,
are part of the travail of mind, the pangs of death, and the pangs
of birth, in which principles that have served their day expire,
and new principles are born."
The Nature of the Judicial Process, Benjamin N. Cardozo, 166-67
(1921). "Somewhere between worship of the past and exaltation of
the present the path of safety will be found." Id.
Van Amburg v. Vicksburg, S. & P. R. Co.,
650, 651, 655, 55 Am.Rep. 517, 518; Rowe v. Richards,
S.D. 201, 206, 207, 151 N.W. 1001, 1003; Salsedo v.
278 F. 92, 94; Maney v. Chicago, B. & Q. R.
49 Ill.App. 105, 112, 113. For a discussion of the state
wrongful death statutes, see
1075, 1095, 1163, 23 A.L.R. 1262; 27 L.R.A. (N.S.), 176.
The recent Van Wagoner
Utah Supreme Court decision
cited by the Court is not out of harmony with the above cases but,
as amended on rehearing, is expressly limited to a holding that
contributory negligence of a decedent may bar recovery under the
Utah statute on the part of his heirs. That holding simply means
that the death was not "wrongful" under the statute. It does not
mean that, where there is company negligence, Utah would hold that
a railroad could barter away the beneficiary's rights.
And, as I read the opinion of the Circuit Court of Appeals in
the case now before us, it did not hold that, under Utah law, "an
action is maintainable only where the decedent could have
maintained an action to recover damages for his injury if death had
not ensued." For that statement in its opinion, the Circuit Court
of Appeals relied only on the Adams
case and several other
opinions of this Court. It did not purport to be construing Utah
law. On this point, therefore, there is no question presented as to
whether the Circuit Court of Appeals made a "plain error" in the
construction of state law. The state law on that subject has been
very clearly stated by the State Supreme Court to the effect that
"is beyond the power of the Legislature to take from the
dependents of an employee their claim against the employer where
such employee dies as a result of a wrongful injury by the
Halling v. Industrial Comm'n of Utah
, 71 Utah 112, 120,
121, 263 P. 78, 80, 81.
The Court said:
". . . It is true, a distinction has been taken in some cases
between simple negligence and great or gross negligence, and it is
said that one who acts gratuitously is liable only for the latter.
But this case does not call upon us to define the difference (if it
be capable of definition), as the verdict has found this to be a
case of gross negligence."
"When carriers undertake to convey persons by the powerful but
dangerous agency of steam, public policy and safety require that
they be held to the greatest possible care and diligence. And
whether the consideration for such transportation be pecuniary or
otherwise, the personal safety of the passengers should not be left
to the sport of chance or the negligence of careless agents. Any
negligence in such cases may well deserve the epithet of
A note appended to the Lockwood
case as reported in 21
L. Ed. 627 cites cases in support of the position there taken that
rule was contrary to the weight of judicial
authority. And see
22 L.R.A. 794; 37 L.R.A.(N.S.), 235; 37
The Transportation Act of 1940, 54 Stat. 899, 900, 49 U.S.C. §
1(7), expanded the groups eligible to ride on "free passes." But no
language used in that Act, and no legislative history that I have
found, indicates any congressional knowledge of the existence of
the penalizing Adams
rule, much less approval of it. Far
from indicating a purpose to acquiesce in any kind of reduced
employee protection, Congress, in § 7(2)(f) of that Act, 49 U.S.C.
§ 5(2)(f), provided a new and extraordinary protection for
employees whose jobs might be affected by railroad mergers and
Sen.Rep. No.433, 76th Cong., 1st
Sess., 4, 21; H.R.No.2832, 76th Cong., 3d Sess., 68-69;
Interstate Commerce Comm'n v. Railway Labor Executives
Assn., 315 U. S. 373
315 U. S.
40 Cong.Rec. 7741, 7851-7852, 7920-7940, 7978-7998. The
following statement is typical of the sentiment that brought into
the Hepburn Act the exception that permitted issuance of passes to
and use of them by employees:
"While I am on my feet, I will take the opportunity to say in
regard to the pass amendment or provision that I have received, as
other Senators have, a great many telegrams from railway employees
and from organizations of railway employees protesting against any
provision's being incorporated here that will prevent them from
being supplied with or from accepting free transportation. I shall
not take time to discuss that, as it has been fully discussed. I
simply wish to say that I fully agree with them, and I believe that
we ought not to enact any such legislation, and, should we do so,
it would, in my judgment, be perpetrating a very great injustice
upon those people. The matter of free transportation, as the
Senator from Wisconsin [Mr. Spooner] said yesterday, enters partly
into the consideration for their employment, and we have no moral
right to deprive them of that privilege."
40 Cong.Rec. 7981. See also id.
Sen.Rep. No.1242, 59th Cong., 1st Sess., Views of Mr.
Tillman and Mr. Newlands, pp. 10, 16; 1 Sharfman, the Interstate
Commerce Commission 44 (1931); Sassaman v. Pennsylvania R.
144 F.2d 950, 956 nn. 7 and 8.
case was supported by the following
"The result we have reached conforms the law applicable to the
present issue to that moral sense which justly holds those who
accept gratuities and acts of hospitality to perform the conditions
on which they are granted."
193 U.S. at 193 U. S. 451
Railroad Co. v.
17 Wall. 357, 84 U. S. 368
See Jacobus v. St. Paul & C. R. Co.,
20 Minn. 125,
"Whether the case be one of a passenger for hire, a merely
gratuitous passenger, or a passenger upon a conditional free pass,
as in this instance, the interest of the state in the safety of the
citizen is obviously the same. The more stringent the rule as to
the duty and liability of the carrier, and the more rigidly it is
enforced, the greater will be the care exercised, and the more
approximately perfect the safety of the passenger."