Ephraim v. Safeway Trails, Inc. Appellant's Reply Brief

    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)