Ephraim v. Safeway Trails, Inc. Appellant's Reply Brief
Public Court Documents
January 1, 1964

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Brief Collection, LDF Court Filings. Ephraim v. Safeway Trails, Inc. Appellant's Reply Brief, 1964. 141f63ed-b09a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/cbf91e68-e7d1-4c83-8274-694447f83ef6/ephraim-v-safeway-trails-inc-appellants-reply-brief. Accessed April 22, 2025.
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Argued by H enry S. Miller United States (to rt n! Appeals For the Second Circuit No. 29064 FLORENCE BLAIZE EPHRAIM, Plaintiff-Appellee, AGAINST SAFEW AY TRAILS, INC., Defendant-Appellant. APPELLANT’S REPLY BRIEF H en ry S. M iller , Attorney for Defendant-Appellant, No. 475 Fifth Avenue, New York 17, N. Y. Lodes Appeal Pbkss, I nc., 41 Vesey Street. New Y ork, N . Y. WOrth-2-0689 I N D E X PAG® Introduction ................................................................... 1 I.—No “ special contract” was made between planitiff - appellee and defendant - appellant whereby defendant-appellant agreed to waive its limitation of liability, written into the tar iff and on the passenger tickets, for acts com mitted on the lines of connecting carriers . . 2 II.—By the sale of the through transportation ticket to plaintiff-appellee, the defendant-ap pellant did not become the principal in an en gagement to transport appellee from New York to Alabama ............................................... 7 III. —The cases cited in appellee’s brief are inap plicable to the issues in this case ................... 8 IV. -—Appellee wrongfully seeks a ruling that when a public carrier sells a through ticket for transportation over the line of a connecting carrier, the connecting carrier is deemed to be the agent of the initial carrier, so that lia bility may be cast upon both carriers for a. tort committed by an employee of the connect ing carrier ........................................................... 12 Summary and Conclusion ....................................... 14 11 IN D E X CASES CITED PAGE Boynton v. Commonwealth of Virginia, 364 U. S. 454 ........................................................................ 11,12 Bullock v. Tamiami Trail Tours, 266 F. 2d 326 . . . . 12 Condict v. Grand Truck Railway Co., 54 N. Y. 500 8, 9 C'onklin v. Canadian Colonial Airways, Inc., 266 N. Y. 244 ......................... : ..................................... 9 Davis v. Henderson, 266 IT. S. 92 ............................. 3 Louisville & Nashville R. R. Co. v. Chatters, 279 U. S. 320 ................................................................. 14 Myrick v. Michigan Center Railroad Co., 107 IT. S. 102 ................................... 3 New York Central Railroad Company v. Lockwood, 17 Wall. (84 U. S.) 357 ....................................... 9 Northern Pacific Railway Co. v. American Trading Company, 195 IT. S. 439 ............................................ 10 Penn. R. R. Co. v. Jones, 156 IT. S. 333 .................... 3 Quimby v. Vanderbilt, 17 N. Y. 306 ......................... 8, 9 Railroad Company v. Pratt, 89 IT. S. 123 ................ 10 Talcott v. Wabash R. Co., 159 N. Y. 461 ................. 8, 9 Wooten v. Pennsylvania Railroad Co., 288 F. 2d 220 ...................................’ ....................................................................................................................................................... 9 Argued by Henry S. Miller Hutted States CCnnrt n! Appeals F or th e S econd C ircu it No. 29064 ------------------- o------------------- F lorence B laize E p h r a im , Plaintiff-Appellee, AGAINST S afew ay T rails, I n c ., Defendant-Appellant. ------------------- o------------------- APPELLANT’S REPLY BRIEF Introduction Appellee’s brief contains factual misstatements, alle gations based on mistaken premises, statements of legal principles not borne out by the citations purporting to sup port them, and numerous non sequiturs, all of which re sults in erroneous conclusions. We believe that an analy sis of appellee’s brief and the authorities cited herein will justify the foregoing statement. 2 l No “ special contract” was made between plaintiff- appellee and defendant-appellant whereby defendant- appellant agreed to waive its limitation o f liability, writ ten into the tariff and on the passenger tickets, for acts committed on the limes o f connecting carriers. The argument of appellee under Points II, III and IV of her brief consists essentially of the contention that there was a “ special contract” which vitiated the protec tive limitation, of liability made part of the contraet^be- tween passenger and initial carrier by statute and court decisions and also in cor^ rated in the very ticket sold by appellant. In order to circumvent the language in and the long established practice under the Interstate Commerce Act to facilitate the through transportation of passengers, and the decisional law on the subject, appellee conjures up a magic “ special contract.” Of course there is noth ing to prevent a carrier and passenger from making such a contract-—established by a writing or other clear and convincing evidence that both parties intended to except a particular passage from the written disclaimer filed by the carrier as part of its tariff and thereby incorporated in the contact by law. But that is not this case. 1. The alleged conversations between appellee and a ticket clerk do not spell out a “ special contract” . On page 27 of our main brief is set forth all the testi mony given by appellee (p. 25a) now claimed to consti tute representations or a special contract. Nothing in that testimony can serve to effect a waiver oFUie safe guards extended to initial carriers selling tickets for travel 3 over connecting lines. We call attention to the holding o f ^ * F S 5 ^ T C 5 n r t {Penn. R. R. Co. v. Jones, 155 U. S. 333, 339, and My rich v. Michigan Center Railroad Co., 107 U. S. 102, 107) that a (special) ‘ ‘ agreement will not be inferred from doubtful expressions of loose language, but only from clear and satisfactory evidence.” In this connection the Supreme Court also held {Davis v. Henderson, 266 U. S. 92, 93): “ There is no claim that the rule (of the carrier) requiring written notice was void. The contention is that the rule was waived. It could not be. The transportation service to be performed was that of common carrier under published tariffs. The rule was part of the tariff.” If it were otherwise, Interstate Commerce Law and de cisions of the Supreme Court would be of no avail—all a claimant would need to except himself would be to say that the ticket clerk “ told me” otherwise. 2. Appellee’s counsel strain mightily to persuade the court that what is plainly color white is really color black. We refer to the verbal legerdemain on pages 19 to 21 in contending that appellant gained 10% commis sion from the sale of tickets over the lines of connecting carriers. With an astonishing new system of logic it is argued that appellant is obligated in any case to pay a rental of 10% to the Port Authority “ regardless of whether or not any commission is received by appellant. ’ ’ Where do these alleged facts come from? Certainly not from the record. The record shows plainly and clearly that appellant must pay to the Port Authority 10% on every ticket sold—every ticket that passes through “ the ticket window” (147a). According to old fashioned logic, 4 it would appear clear that if it does not sell a ticket for travel over a connecting line it does not pay 10% of the ticket price—nothing is paid on a “ non-sale,” [Obvionsly the sale of the ticket involves, handling ex penses incurred by appellant as well as the 10l% paid over to the Port Authority. The witness Stevens did indeed complain that appellant is allowed to deduct from the money turned over to the connecting carrier only 10%, whereas the transaction costs 20%; that is, 10% to the Port Authority and 10% incurred presumably in the handling of the sale, rendering accounts, etc. (143a).] 3. Every coupon ticket carries the notation that it is issued for the account o f appellant, to show the origin of the ticket for accounting and billing purposes. This is ' ^seized upon as evidence of the ‘ ‘ special contract. ’ ’ How ,y /fa r fetched it is to urge that in thus printing tickets appel- lant intended to repudiate and negate the limitation of liability expressly included in the tariff filed with the Interstate Comm erce Commission and written out on the reverse side of the ticket.!.. 4. The present contention of a “ special contract” is specious. That is not what plaintiff-appeillee contended at pre-trial and at the tidal. Then counsel argued that merely by virtue of the sale of a ticket for a through trip via other bus lines, and the payment to appellant of the entire fare, there was a special contract to transport plaintiff to her destination and thereby appellant became liable for the acts of the driver of the connecting bus line. The claim that the conversation between plaintiff and the ticket seller constitutes a special contract, or that any form of printing on the ticket, or any “ economic gain” to appellant, creates a special contract is an after-thought. 5 The theory on which plaintiff’s counsel tried the ease was that the mere sale of a “ through ticket” rendered appel lant liable for acts committed by others. (a) In plaintiff’s pre-trial memorandum at pages 1 and 2, it is stated: __ “ (b) Plaintiff contends that she sustained se vere injuries while a passenger on a bus. traveling through the state of Georgia; that at the time of the assault she was on a through trip from New York City to Montgomery, Alabama; that defend- ant agreed to. transport the* plaintiff the entire trip via other bus lines where necessary and received from the plaintiff the full fare for the entire trip; that plaintiff was led to believe and did believe that she had engaged the defendant for the .entire trip. Plaintiff further contends that the assault on and resulting injuries to her resulted from the negligence of def endant and the driver of the bus then carrying her on her through journey in the respects hereafter stated. Plaintiff contends that the defendant is liable f or1 the negligence of the driver and the bus line on which plaintiff was tra veling at the time of the incident on The ground that plaintiff was then-on a-ihrougli trip for which defendant had specifically a g r m T /o transport plaintiff via the use of other bus lines where nec essary.” (b) In the pre-trial order dated April 16, 1963, it is stated: “ 3. (b) It is the plaintiff’s contention that: Plaintiff sustained severe injuries while a passen ger on a bus traveling through the state of Georgia; 6 that at the time of the assault she was ora. a through trip from New York City to Montgomery, Alabama; that defendant agreed to transport the plaintiff the entire trip via other bus lines where necessary and" received from the plaintiff the full fare for the en tire trip ; that plaintiff was led to believe and did s believe that she had engaged the defendant for the entire trip. Plaintiff further contends that the as sault on and resulting injuries to her resulted from the negligence of defendant and the driver of the bus then carrying her on her through journey in the 'respects hereafter stated. Plaintiff contends that the defendant is liable for the negligence of the driver and the bus line on which plaintiff was traveling at the time of the accident on the grounds . ; l J that, plaintiff was then on a. through trip for which ■ defendant had specifically agreed transport plain- tiff via the use of other bus lines where necessary.” (e) Finally, in his. opening statement to the court (Transcript, pip. 3 and 4) Mr. Jones, of counsel for plain tiff, stated: “ The plaintiff will further establish, your Honor, that by virtue of the purchase of the ticket for the entire trip and the issuance of the ticket by the de fendant, that under these circumstances the plain tiff and the defendant entered into' a special con tract whereby the defendant had a. responsibility for the safe travel and safe passage of the plain tiff pursuant to the tickets, though certain portions of her travel occurred and took place' over connect ing carriers which engaged in interstate transpor tation in association with and in conjunction with the defendant, though being separate companies.” 7 Thus appellee has argued that the appellant is liable because (1) plaintiff was led to believe and did believe that she had engaged the defendant for the entire trip, or (2) that appellant was liable because it sold her a through ticket for the journey agreeing to “ transport plaintiff via the use of other bus lines where necessary” , or (3) that certain “ facts” create a special contract. Bnt as onr main brief shows, the “ facts” do not rise to the dignity of a special contract. II By the sale of the through transportation ticket to plaintiff-appellee, the defendant-appellant did not be come the principal in an engagement to transport ap pellee from New York to Alabama. Appellee concedes on page 6 that the limitation of lia bility contained in the tariff and printed on, the ticket applies where the initial carrier sells a ticket and checks, baggage; but, argues appellee, not where the initial car rier is acting as principal in the transportation of the passenger to her destination. No matter how the point is belabored, the simple fact is that insofar as appellant’s business pertaining to con necting carriers is concerned, it did nothing more than sell tickets. It sold to pla,intiffTEiT~li^eFTxansporting her over the line of Southern Stages and it sold to her the several tickets for other connecting lines. As to its own line, it has many duties and responsibilities: It must maintain safe vehicles; it must maintain competent and courteous drivers. Bnt as to a connecting carrier it has nothing whatsoever to do with the management and operation of the line; all"it can do is sell the ticket, under the direction of the Interstate Commerce Conunis- 8 sion, which will permit the passenger to make the jour ney without stopping along the route from time to time to purchase transportation tickets. It is a transaction which takes place in hundreds of places in this country daily. I f appellee’s contention were to be upheld, then every time the New York 'Central Railroad, the Pennsyl vania Railroad, the Northern Pacific Railroad and the numerous bus companies sell a ticket for a long journey, necessarily including transportation over connecting lines, each initial selling carrier would become the prin cipal. No such bizarre situation is contemplated by the1 Interstate Commerce Act and the U. S. Supreme Court. Ill The cases cited in appellee’s brief are inapplicable to the issues in this case. Under Appellee’s Point II : At page 5, in support of the proposition that where there is a special contract the limitation of liability in cluded in tariffs filed with the Interstate Commerce Com mission and appearing on the back of the ticket does not absolve the carrier from liability for injuries to a passen ger while traveling over the line of a connecting carrier, appellee cites: Talcott v. Wabash R. Co., 159 N. Y. 461; Condict v. Grand Truck Railway Co., 54 N. Y. 500, 502, 503; Quimby v, Vanderbilt, 17 N. Y. 306. All these cases long antedated the enactment of the Interstate Commerce’ ' AcC TSTo reference‘ tb such, an lie f "or any lumHar act or to fEe”printing of the disclaimer on the ticket appears in any of these cases. Moreover, in 9 Condict the transportation of goods was involved, which is subject to entirely different rules of law. The trans portation of goods was also involved in Talcott. In both Condict and Quirnby the contracts before the court were in writing. There is not a word in any of these eases in support of the foregoing broad statement in appellee’s brief. In Wooten v. Pennsylvania, Railroad Co., 288 P. 2d 220, plaintiff was injured by the fall of baggage from a rack where it had been placed by the defendant’s employees. The car in which plaintiff was injured was owned by the Florida East Coast Railroad, a connecting carrier. How ever— “ Two coach attendants were on duty and in charge of this car from Chicago- to Jacksonville. These two at tendants ivere employed and paid by defendant. (Emphasis by the court.) Both wore uniforms and caps bearing de fendant’s insignia. Their duties included placing baggage on overhead racks in the coach cars and secure it during transit to keep it from falling.” In Conklin v. Canadian Colonial Airways, Inc., 266 N. T. 244, negligence was not disputed. The question was whether an airplane carrier could limit damages for the death of a passenger to $5,000. In New York Central Railroad, Company v. Lockwood, 17 Wall. (84 U. S.) 357, Mr. Justice Bradley stated: “ The question is, therefore, distinctly raised, whether a railroad company carrying pasengers for hire can lawfully stipulate not to- be answerable for their own or their servants’ negligence in ref erence to such carriage” (p. 359). Under Appellee’s Point 111: These citations do not support appellee’s claim of a * ‘ special contract. ’ ’ 10 Railroad Company v. Pratt, 89 U. S. 123, was concerned with the transportation of horses which were burned to death on the line of a connecting carrier. The case was decided long before the enactment of the Interstate Com merce Act. There was a way-bill contract by which the initial carrier undertook to transport the horses to Boston. As evidence of it the court pointed to the following head ing of the “ way-bill” : “ Way bill of merchandise transported by Ogdens- berg and Lake Champlain Railroad Co. from Potts- dam Junction to Boston via Concord, March 20, 1868.” In addition to the liability found by the Court under general principles, the court further pointed out that the case also stood upon a special statute in New York mak ing an initial carrier of freight liable and giving that car rier a cause of action over against the connecting carrier. In Northern Pacific Railway Co. v. American Trading Company, 195 U. S. 439, a shipper made a contract with the receivers of a railroad company for the transportation of lead to Japan. The receivers in turn had a contract with the steamship company. The lead was placed on board a railroad car at Newark, N. J. After reaching Tacoma it was to be put on board a steamship leaving Tacoma on October 30, In a suit for damages arising from delay caused by the failure of the steamship com pany to ship on the date specified, the questions involved and the holdings of the court were: (1) The contract was in writing; in it the receivers undertook to ship the goods; and the court held it to be a valid contract. (2) As to whether the receivers had power to make the contract, the court held that they were authorized by the appointing court to make such contract. 11 (3) The day after the lead was placed on hoard at Newark, New Jersey, a bill of lading was delivered to one of the clerks of the trading company, which contained the1 absolutely inconsistent statement that the carrier is not to be held liable for any loss not occurring on its own road, etc. The court said: “ We regard it as entirely clear that no such efface- ment of the original contract was meant by the receipt of the bill of lading. The railroad company had no power alone to alter that contract and it could not alter it by simply issuing a bill of lading, unless the other party assented to these conditions and thereby made a new and different contract” (p. 463). Under Appellee’s Point IV : In Boynton v. Commonwealth of Virginia, 364 IT. S. 454, the court held that a bus line was responsible for tortious acts committed against a passenger in a terminal and restaurant in Virginia because on the special facts in. that case the terminal and restaurant were operated as an integral part of the transportation service. The court said at page 463: “ Because of some of the arguments made here it is necessary to say a word about, what we are not deciding. We are not holding that every time a bus stops at a wholly independent roadside res taurant the Interstate Commerce Act requires that restaurant service be supplied in harmony with the provisions of that Act. We decided only this case, on its facts, where circumstances show that the terminal and restaurant operate as an integral part of the bus carrier’s transportation service for interstate passengers. ’ ’ 12 It is interesting and at the same time astonishing that on page 16 appellee equates a connecting carrier (such as Southern Stages in this case) as an instrumentality of appellee with the terminal and restaurant in Boynton, which were operated as an integral part of the bus car rier’s transportation service. Under Appellee’s Point V : In Bullock v. Tamiami Trail Tours, 266 F. 2d 326 there was no question of liability as between an initial carrier and a connecting carrier. Plaintiffs had purchased a ticket from a travel agency in. Jamaica, the Mountain Travel Service, which was an agent of the defendant (the Appellate Court so referred to it) to travel over the bus line of the defendant. Moreover, defendant, insofar as it operated a bus line, was the initial carrier. IV Appellee wrongfully seeks a rating that when a public carrier sells a through ticket for transportation over the line of a connecting carrier, the connecting carrier is deemed to be the agent of the initial carrier, so that liability may be cast upon both carriers for a tort com mitted by an employee of the connecting carrier. We have quoted from statements of counsel at trial and in the pre-trial memorandum which show the conten tion then made that by the mere sale of a through ticket the connecting carrier became the agent~oFThb ImIIarJ5u> rier and thereby the initial carrier became liable for the acts of the .connecting carrier’s, employee. Despite seem- ing denials and confused verbiage, that is the ruling which appellee seeks to obtain as evidenced further by 13 the statement on page 6 and the last paragraph of appel lee’s Point Y on page 25. In the first sentence appellee denies contending that appellant should not sell tickets to colored people because of the possibility of conflict in the south. But in the very next sentence counsel states : “ Appellee does contend * * * that when appel lant enters into an engagement to transport a pas senger to her destination, wEieET Involves travel over the lines of connecting carriers to carry out the engagement, then appellant itself and through its agents, connecting carriers, has a responsibil ity to exercise due care for the passenger’s safety and to refrain from wrongful acts which are the proximate cause of injury to the passenger.” If the foregoing means what it seems to say, such a judicial declaration of law would be contrary to the de clared* AaUonaDTS tEe™&cEeme~are^ Tufiy worked out in tEe THei^ale'Donmieree' £ e t, tKe con comitant right to disclaim liability for acts committed on connecting lines in order to make the governmental plan effective, and the well-established rules laid down by the courts. Such a rule would work incalculable mischief. Public carriers would be faced with this alternative: 1. Refuse to sell tickets over the lines of connecting carriers to colored persons, which would violate the In terstate Commerce Act as well as the New York Anti- Discrimination Law as now in effect, or 2. Under the compulsory provisions of the Interstate Commerce Act, sell such tickets and become liable for every tortious act committed on the lines of connecting carriers. 14 Obviously Congress intended no such, alternative in the Interstate Commerce Act nor in any other applicable law. Nothing in the Interstate Commerce Act nor in the deci sions of the Courts under that Act lends the slightest credence to such alternative. Summary and Conclusion Neither the argument of the appellee nor the facts in the record justify departure from the well-settled rules laid down in the leading case of Louisville & Nashville R.R. Co. v. Chatters (279 U. S. 320) limiting the liability of an initial carrier selling tickets for connecting carriers. The appellee is bound by the covenant in the contract set out in the tickets and in the filed tariff. The covenant cannot be waived. Any so-called special agreement negating that covenant may not be inferred from loose language but must be es tablished by clear and satisfactory evidence and such evi dence is not in the record. Sales of tickets, including levies and charges for con necting carriers, are controlled by the Interstate Commerce Commission. It is a perversion of the facts to assert that appellant received a commission of ten per cent or any other portion of the fare charged for travel over connect ing lines. An initial carrier selling tickets for travel over connect ing lines is not a principal; it does not become a principal by selling tickets for a through trip “ via the use of other bus lines” . A public carrier is not liable for the acts of a police offi cer—especially where such acts are committed on the line of another carrier over which the initial carrier has no control. By reason of the foregoing the judgment against de fendant-appellant for acts committed on the line of South ern Stages, Inc. should be reversed. Respectfully submitted, H e n by S. MmLEB, Attorney for Defendant-Appellant. CfHAEiiES B . M cI n n is and R oberts & M c ln m s , o f W ash in gton , D. C., Of Counsel. (6470)