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decided: March 15, 1948.



Vinson, Black, Reed, Frankfurter, Douglas, Murphy, Jackson, Rutledge, Burton

Author: Douglas

[ 333 U.S. Page 446]

 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.

[ 333 U.S. Page 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.S. 440. It concluded that respondent had the same defense against the heirs. We granted the petition for a writ of certiorari to re-examine the relationship between local law and federal law respecting the liability of interstate carriers under free passes.

In Van Wagoner v. Union Pac. R. Co., Utah , 186 P. 2d 293, 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.*fn1 Yet it requires such showing of error for us to overrule the lower courts in

[ 333 U.S. Page 448]

     their applications of Erie R. Co. v. Tompkins, 304 U.S. 64. See Palmer v. Hoffman, 318 U.S. 109, 118; MacGregor v. State Mutual Co., 315 U.S. 280; Steele v. General Mills, 329 U.S. 433, 439. Cf. Wichita Co. v. City Bank, 306 U.S. 103.

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 therefor." In Northern Pacific R. Co. v. Adams, supra, a similar provision in a free pass was sustained as a defense to an action brought under an Idaho statute by the heirs of a passenger.*fn2 That was in 1904. The Adams

[ 333 U.S. Page 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, to "its employees and their families." 34 Stat. 584, 49 U. S. C. ยง 1 (7). Thereafter in 1914 the Court held that the rule of the Adams 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.S. 459, 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, p. 468, "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.*fn3 No other amendments to the

[ 333 U.S. Page 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. 61, 69, 70; Helvering v. Hallock, 309 U.S. 106, 119, 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, and Van Zant cases has become part of the warp and woof of the legislation. See Missouri v. Ross, 299 U.S. 72, 75; United States v. Elgin, J. & E. R. Co., 298 U.S. 492, 500; United States v. Ryan, 284 U.S. 167, 175; Hecht v. Malley, 265 U.S. 144, 153; Electric Battery Co. v. Shimadzu, 307 U.S. 5, 14. Any 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 case 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, on 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 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. We do not stop

[ 333 U.S. Page 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, 552.



162 F.2d 813, affirmed.


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.S. 440. 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, whereby

[ 333 U.S. Page 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 decisions.

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 Adams "general commercial law" state rule. Since the Erie-Tompkins decision in 1938, and in fact since 1923, the Adams 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 post- Erie-Tompkins 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 federal rule, Clearfield Trust Co. v. United States, 318 U.S. 363, 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 ...

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