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

    Argued by
H en ry  S. M iller

United States (Hour! nf Appeals
For the Second Circuit

No. 29064

FLORENCE BLAIZE EPHRAIM,

Plaintiff-Appellee,

AGAIN ST

SAFEW AY TRAILS, INC.,

Defendant-Appellant.

A P P E L L A N T ’ S B R I E F

H en ry  S. M iller ,
Attorney for Defendant-Appellant, 

No. 475 Fifth Avenue,
New York 17, N. Y.

L okeb Appeal Pbess, I nc., 41 Vesey Stoke®, New Y ork, N. Y . WOrth-2-0689



I N D E X

Preliminary Statement .....................    1

The Issues .........      1

The Complaint ...............................    4

The Facts ..........................................................    4

P oint  I :  By amendments to the Interstate Com­
merce Act Congress assumed control of the 
transportation of passengers and property by 
motor carriers engaged in interstate commerce 
and the regulation of such transportation was 
vested in the Interstate Commerce Commission 10

P oint  II.— The limitation of liability included in the 
tariff filed on behalf of appellant became part of 
the contract between plaintiff and defendant 13

P oint III.—Appellant is not liable for the acts com­
mitted while plaintiff was on the line of South­
ern Stages ............................................................... 15

P oint  IV.— The Court belowr erred in holding that 
the circumstances of this case make inappli­
cable the rule laid down in Louisville <3 Nash­
ville R. R. Co. v. Chatters and the cases which 
follow that rule .......................................................  21

P oint V.—Appellant is not liable for the acts of the 
police officer, nor for the act of the driver in 
calling the police officer and identifying plain­
tiff ......................................    28

PAGE

Conclusion 33



11 INDEX

CASES CITED

Bowder v. Atlantic Coastline Railroad Co., 144 N. C.
28 ............................................................................... 32

Brunswick & Western R. R. Co. v. Ponder, 117 Ga.
63 ..............................................................................  31

PAGE

Chicago & Alton R. R, Co. v. Kirby, 225 IT. S. 155,
166 ............................................................................. 14

Cray v. Penn Greyhound Line, 110 A. 2d 892, 177
Pa. Super. 275 ......................................................... 12,13

Glaser v. Pennsylvania Railroad et ah, 196 A. 2d,
539, 82 N. J. Super. 1 6 ....................11,14,15,18, 21, 22

Kinchlow v. People’s Rapid Transit Co., et ah, 88
F. 2d 764 (CCA, D. C.) (c.d. 57 S. Ct. 926) . . . .  30

Louisville & Nashville R. R. Co. v. Chatters, 279
U- S. 320 .............................................3,13,16,21,22,28

Louisville & Nashville R. R. Co. v. Webb, 248 S. W.
2d 429 ....................................................................... 20

Missouri Pacific Railroad Co. v. Prude, 265 IT. S. 99 13
Morrison v. Pennsylvania R. R. Co., Vol. 6, CCLI, 

Federal Carriers Cases, Par. 80370, p. 2013, 
(TJSDC, So. List. N. Y.) .......... ..........................  19

Pennsylvania R. R. Co. v. Jones, 155 IT. S. 333 ..........13, 28

Schoelwin v. Welbark & Southeast Greyhound Line,
70 S. E. 2d 792, 86 Ga. App. 99 ............

Solomon v. Penn. R. R. Co., 96 F. Supp. 709
31
20



INDEX III

Spears v. Transcontinental Bus System, 226 F. 2d 
94 (CCA, 9th Circuit), e.d. 350 U. S. 950; re­

PAGE

hearing denied 350 IT. S. 977 ............................. 18

Tompkins v. Missouri K  & T Ry. Co., 211 F. 391
(CCA, 8th) ........................................... ................  30

STATUTES CITED

Interstate Commerce Act (49 U. S. C.) :
Declaration of national transportation pol­

icy preceding Title I ........................................  10
Section 20(3) (5) (11) ..................................... 10,26
Section 316(a) (c) (d) (e) (f) (g) (h) (i) . . . . .  10,22

Section 317 ..................   10
Section 3 1 8 .......................................................  10

The following are sections of statutes herewith printed 
at length:

Act of September 18, 1940 c. 722, Title I, sec. 1, 54 Stat. 
899 amended the Interstate Commerce Act by inserting 
before Title I thereof the provision entitled “ National 
Transportation Policy ’ ’ :

It is hereby declared to be the national transportation 
policy of the Congress to provide for fair impartial regu­
lation of all modes of transportation subject to the pro­
visions of this Act (chapters 1, 8, 12, 13 and 19 of this



IV INDEX

title), so administered as to recognize and preserve the 
inherent advantages of each; to promote safe, adequate, 
economical, and efficient service and foster sound eco­
nomic conditions in transportation and among the sev­
eral carriers, to encourage the establishment and main­
tenance of reasonable charges for transportation services, 
without unjust discrimination, undue preferences or ad­
vantages, or unfair or destructive competitive practices; 
to cooperate with the several States and the duly author­
ized officials thereof; and to encourage fair wages and 
equitable working conditions;—all to the end of develop­
ing, coordinating and preserving a national transporta­
tion system by water, highway, and rail, as well as other 
means, adequate to meet the needs of the commerce of 
the United States, of the Postal Service, and of the 
national defense. All of the provisions of this Act 
(chapters 1, 8, 12, 13 and 19 of this title) shall be ad­
ministered and enforced with a view to carrying out the 
above declaration of policy. (49 U. S. C. A., Vol. 1, page 
9).

316. Rates, fares, and charges.— (a) Duty to establish 
reasonable rates, fares, and charges— Service and equip­
ment—Rules and regulations—Reasonable divisions of 
joint fares. It shall be the duty of every common carrier 
o f passengers by motor vehicle to establish reasonable 
through routes with other such common carriers and to 
provide safe and adequate service, equipment, and facili­
ties for the transportation of passengers in interstate or 
foreign commerce; to establish, observe, and enforce just 
iand reasonable individual and joint rates, fares and 
charges, and just and reasonable regulations and prae-



INDEX V

ticesr relating thereto, and to the issuance, form, and sub­
stance of tickets, the carrying of personal, sample, and 
excess baggage, the facilities for transportation, and all 
other matters relating to or connected with the transpor­
tation of passengers in interstate or foreign commerce; 
and in case of such joint rates, fares, and charges, to 
establish just, reasonable, and equitable divisions thereof 
as between the carriers participating therein which shall 
not unduly prefer or prejudice any of such participating 
carriers.

(e) Through routes and joint rates. Common carriers of 
property by motor vehicle may establish reasonable 
through routes and joint rates, charges, and classifica­
tions with other such carriers or with common carriers 
by railroad and/or express and/or water; and common 
carriers of passengers by motor vehicle may establish 
reasonable through routes and joint rates, fares, or 
charges with common carriers by railroad and/or water. 
In case of such joint rates, fares, or charges it shall be 
the duty of the carriers parties thereto to establish just 
and reasonable regulations and practices in connection 
therewith, and just, reasonable, and equitable divisions 
thereof as between the carriers participating therein 
which shall not unduly prefer or prejudice any of such 
participating carriers.

(d) Undue preferences or prejudices prohibited. All 
charges made for any service rendered or to be rendered 
by any common carrier by motor vehicle engaged in in­
terstate or foreign commerce in the transportation of 
passengers or property as aforesaid or in connection 
therewith shall be just and reasonable, and every unjust 
and unreasonable charge for such service or any part 
thereof, is prohibited and declared to be unlawful. It



V I INDEX

shall be unlawful for any common carrier by motor 
vehicle engaged in interstate or foreign commerce to 
make, give, or cause any undue or unreasonable prefer­
ence or advantage to any particular person, port, gate­
way, locality, region, district, territory, or description of 
traffic, in any respect whatsoever; or to subject any par­
ticular person, port, gateway, locality, region, district, 
territory, or description of traffic to any unjust discrimi­
nation or any undue or unreasonable prejudice or disad­
vantage in any respect whatsoever: Provided, however, 
That this subsection shall not be construed to apply to 
discriminations, prejudice, or disadvantage to tbe traffic 
of any other carrier of whatever description.

(e) Complaints to and investigation by Com m ission- 
Power of Commission to fix reasonable rates and reg­
ulations. Any person, State board, organization, or 
body politic may make complaint in writing to the Com­
mission that any such rate, fare, charge, classification, 
rule, regulation, or practice, in effect or proposed to be 
put into effect, is or will be in violation of this section 
or of section 217 [§317 of this title]. Whenever, after 
hearing, upon complaint or in an investigation on its own 
initiative, the Commission shall be of the opinion that 
any individual or joint rate, fare, or charge, demanded, 
charged, or collected by any common carrier or carriers: 
by motor vehicle or by any common carrier or carriers by 
motor vehicle in conjunction with any common carrier 
or carriers by railroad and/or express, and/or water for 
transportation in interstate or foreign commerce, or any 
classification, rule, regulation, or practice whatsoever of 
such carrier or carriers affecting such rate, fare, or 
charge or the value of the service thereunder, is or will 
be unjust or unreasonable, or unjustly discriminatory or 
unduly preferential or unduly prejudicial, it shall deter­



INDEX VX1

mine and prescribe the lawful rate, fare, or charge or the 
maximum or minimum, or maximum and minimum rate, 
fare, or charge thereafter to be observed, or the lawful 
classification, rule, regulation, or practice thereafter to 
be made effective and the Commission, shall, whenever 
deemed by it to be necessary or desirable in the public 
interest, after hearing, upon complaint or upon its own 
initiative without a complaint, establish through routes 
and joint rates, fares, charges, regulations, or practices, 
applicable to the transportation of passengers by com­
mon carriers by motor vehicle, or the maxima of minima, 
or maxima and minima, to he charged, and the terms 
and conditions under which such through routes shall be 
operated: Provided, however, That nothing in this part 
[§§ 301-305, 306-327 of this title] shall empower the Com­
mission to prescribe, or in any manner regulate, the rate, 
fare, or charges for intrastate transportation, or for 
any service connected therewith, for the purpose of re­
moving discrimination against interstate commerce or for 
any other purpose whatever.

(f) Commission empowered to establish just division 
of joint rates. Whenever, after hearing, upon complaint 
or upon its own initiative, the Commission is of opinion 
that the divisions of joint rates, fares, or charges, ap­
plicable to the transportation in interstate or foreign 
commerce of passengers or property by common carriers 
by motor vehicle or by such carriers in conjunction with 
common carriers by railroad and/or express, and/or water 
are or will he unjust, unreasonable, inequitable, or unduly 
preferential or prejudicial as between the carriers par­
ties thereto (whether agreed upon by such carriers, or 
any of them, or otherwise established), the Commission 
shall by order prescribed the just, reasonable, and equi­
table divisions thereof to be received by the several car­



VU1 INDEX

riers, and in cases where the joint rate, fare, or charge 
was established pursuant to a finding or order of the 
Commission and the divisions thereof are found by it to 
have been unjust, unreasonable, or inequitable, or unduly 
preferential or prejudicial, the Commission may also by 
order determine what would have been the just, reason­
able, and equitable divisions thereof to be received by 
the several carriers, and require, adjustment to be made 
in accordance therewith. The order of the Commission 
may require the adjustment of divisions between the car­
riers, in accordance with the order, from the date of filing 
the complaint or entry of order of investigation or such 
other date subsequent as the Commission finds justified 
and, in the case of joint rates prescribed by the Com­
mission, the order as to divisions may be made effective 
as a part of the original order.

(g) New rates—Determination of fairness by Commis­
sion—Suspension. Whenever there shall be filed with 
the Commission any schedule stating a new individual 
or joint rate, fare, charge, or classification for the trans­
portation of passengers or property by a common carrier 
or carriers by motor vehicle, or by any such carrier or 
carriers in conjunction with a common carrier or carriers 
by railroad and/or express, and/or water in interstate 
or foreign commerce, or any rule, regulation, or practice 
affecting such rate, fare, or charge, or the value of the 
service thereunder, the Commission is hereby authorized 
and empowered upon complaint of any interested party 
or upon its own initiative at once and, if it so orders, 
without answer or other formal pleading by the inter­
ested carrier or carriers, but upon reasonable notice, to 
enter upon a hearing, concerning the lawfulness of such 
rate, fare, or charge, or such rule, regulation, or practice, 
and pending such hearing and the decision thereon the 
Commission, by filing with such schedule and delivering



INDEX IX

to the carrier or carriers affected thereby a statement in 
writing of its reasons for snch suspension, may from time 
to time suspend the operation of such schedule and defer 
the use of such rate, or charge, or such rule, regulation, 
or practice, but not for a longer period than seven months 
beyond the time when it would otherwise go into effect; 
and after hearing, whether completed before or after the 
rate, fare, charge, classification, rule, regulation, or prac­
tice goes into effect, the Commission may make such 
order with reference thereto as would be proper in. a pro­
ceeding instituted after it had become effective. I f  the 
proceeding has not been concluded and an order made 
within the period of suspension, the proposed change of 
rate, fare, or charge, or classification, rule, regulation, or 
practice shall go into effect at the end of snch period: 
Provided, That this paragraph shall not apply to any 
initial schedule or schedules filed on or before July 31, 
1938, by any such carrier in bona fide operation when this, 
section takes effect. At any hearing involving a change 
in a rate, fare, charge, or classification, or in a rule, 
regulation, or practice, the burden of proof shall be upon 
the carrier to show that the proposed changed rate, fare, 
charge, classification, rule, regulation, or practice is just 
and reasonable.

(h) Good will, earning power or certificate inadmissible 
in proceedings to determine rates. In any proceeding to 
determine the justness or reasonableness of any rate, 
fare, or charge of any such carrier, there shall not be 
taken into consideration or allowed as evidence or ele­
ments of value of the property of such carrier, either 
good will, earning power, or the certificate under which 
such carrier is operating; and in applying for and re­
ceiving a certificate under this part [§§ 301-305, 306-327 
of this title] any such carrier shall be deemed to have



X INDEX

agreed to the pro-visions of this paragraph., on its own 
behalf and on behalf of all transferees of such certificate,

(i) Transportation needs and fair return considered in 
determining rates. In the exercise of its power to pre­
scribe just and reasonable rates, fares, and charges for 
the transportation of passengers or property by common 
carriers by motor vehicle, and classifications, regulations, 
and practices relating thereto, the Commission shall give 
due consideration, among other factors, to the inherent 
advantages of transportation by such carriers; to the 
effect of rates upon the movement of traffic by the carrier 
or carriers for which the rates are prescribed; to the 
need, in the public interest, of adequate and efficient 
transportation service by such carriers at the lowest cost 
consistent with the furnishing of such service; and to 
the need of revenues sufficient to enable such carriers, 
under honest, economical, and efficient management, to 
provide such service.

(j) Effect on remedy or right of action. Nothing in 
this section shall be held to extinguish any remedy or1 
right of action not inconsistent herewith. (Feb. 4, 1887, 
c. 104, Part II, § 216, as added Aug. 9, 1935, c. 498, 49 
Stat. 558; June 29, 1938, c. 811, §16, 52 Stat. 1240; Sept. 
18, 1940, c. 722, Title I, § 22, 54 Stat. 924.)

Cross reference.-—Effective date of section, see § 327 
of this title.

317. Tariffs of common carriers by motor vehicle.—
(a) Filing, posting, and publication. Every common 
carrier by motor vehicle shall file with the Commission, 
and print, and keep open to public inspection, tariffs 
showing all the rates, fares, and charges for transporta­
tion, and all services in connection therewith, of pas­
sengers or property in interstate or foreign commerce



INDEX XI

between points on its own route and between points on 
its own route and points on the route of any other such 
carrier, or on the route of any common carrier by rail­
road and/or express and/or water, when a through route 
and joint rate shall have been established. Such rates, 
fares, and charges shall be stated in terms of lawful 
money of the United States. The tariffs required by this 
section shall be published, filed, and posted in such form: 
and manner, and shall contain such information, as 
the Commission by regulations shall prescribe ; and the 
Commission is authorized to reject any tariff filed with 
it which is not in consonance with this section and with 
such regulations. Any tariff so rejected by the Commis­
sion shall be void and its use shall be unlawful.

(b) Deviation from rates and regulations enumerated 
in tariff forbidden— Undue preferences. No common era- 
rier by motor vehicle shall charge or demand or collect 
or receive a greater or less or different compensation for 
transportation or for1 any service in connection there­
with between the points enumerated in such tariff than 
the rates, fares, and charges specified in the tariffs in 
effect at the time; and no such carrier shall refund or 
remit in any manner or by any device, directly or in­
directly, or through any agent or broker or otherwise, 
any portion of the rates, fares, or charges so specified, 
or extend to any person any privileges or facilities for 
transportation in interstate or foreign commerce except 
such as are specified in its tariffs: Provided, That the 
provisions of sections 1(7) and 22 of part I [§§ 1(7)1 
and 22 of this title] shall apply to common carriers by 
motor vehicles subject to this part [§§ 301-305, 306-327 of 
this title],

(c) Change in tariffs—Piling and posting notice—Pow­
ers of Commission. No change shall be made in any rate,



X ll INDEX

fare, charge, or classification, or any rule, regulation, or 
practice affecting such rate, fare, charge, or classification, 
or the value of the service thereunder, specified in any 
effective tariff of a common carrier by motor vehicle, 
except after 30 days’ notice of the proposed change filed 
and posted in accordance with paragraph (a) of this sec­
tion. Such notice shall plainly state the change proposed 
to be made and the time when such change will take 
effect. The Commission may, in its discretion and for 
good cause shown, allow such change upon notice less 
than that herein specified or modify the requirements of 
this section with respect to posting and filing of tariffs 
either in particular instances or by general order ap­
plicable to special or peculiar circumstances or condi­
tions.

(d) Transportation without filing tariff forbidden. No 
common carrier by motor vehicle, unless otherwise pro­
vided by this part [§§301-305, 306-327 of this title], shall 
engage in the transportation of passengers or property 
unless the rates, fares, and charges upon which the same1 
are transported by said carrier have been filed and pub­
lished in accordance with the provisions of this part 
[§§301-305, 306-327 of this title]. (Feb. 4, 1887, c. 104, 
Part II, [217, as added Aug. 9, 1935, c. 498, 49 Stat. 560; 
Sept. 18, 1940, c, 722, Title I, § 22(e), 54 Stat. 925.)

318. Schedules of contract carriers by motor vehicle.—
(a) Establishment, filing, and posting schedules and rules 
affecting rates—Notice and hearing on proposed changes 
■—Undue preferences. It shall be the duty of every con­
tract carrier by motor vehicle to establish and observe 
reasonable minimum rates and charges for any service 
rendered or to be rendered in the transportation of pas­
sengers or property or in connection therewith, and to 
establish and observe reasonable regulations and prac-



INDEX X III

tiees to be applied in connection with said reasonable 
minimum rates, fares, and charges. It shall be the duty 
of every contract carrier by motor vehicle to file with 
the Commission, publish, and keep open for public in­
spection, in the form and manner prescribed by the Com­
mission schedules containing the minimum rates or 
charges of such carrier actually maintained and charged 
for the transportation of passengers or property in in­
terstate or foreign commerce, and any rule, regulation, 
or practice affecting such rates or charges and the value 
of the service thereunder. No such contract carrier, un­
less otherwise provided by this part [§§ 301-305, 306-327 
of this title] shall engage in the transportation of pas­
sengers or property in interstate or foreign commerce 
unless the minimum charges for such transportation by 
said carrier have been published, filed, and posted in 
accordance with the provisions of this Part [§§ 301-305, 
306-327 of this title]. No reduction shall be made in any 
such charge either directly or by means of any change in 
any rule, regulation or practice affecting such change or 
the value of service thereunder, except after thirty days’ 
notice of the proposed change filed in the aforesaid form 
and manner; but the Commission may, in its discretion 
and for good cause shown, allow such change upon less 
notice, or modify the requirements of . this paragraph with 
respect to posting and filing of such schedules, either 
in particular instances, or by general order applicable' 
to special or peculiar circumstances or conditions. Such 
notice shall plainly state the change proposed to be made 
and the time when such change will take effect. No such 
carrier shall demand, charge, or collect a less compensa­
tion for such transportation than the charges filed in 
accordance with this paragraph, as affected by any rule, 
regulation, or practice so filed, or as may be prescribed 
by the Commission from time to time, and it shall be un­



X IV INDEX

lawful for any such carrier, by the furnishing of special 
services, facilities, or privileges or by any other device 
whatsoever, to charge, accept, or receive less than the 
minimum charges so filed or prescribed: Provided, That 
any such carrier or carriers, or any class or group there­
of, may apply to the Commission for relief from the 
provisions of this paragraph, and the Commission may, 
after hearing, grant such relief to such extent and for 
such time, and in such manner as in its judgment is con­
sistent with the public interest and the national trans­
portation policy declared in this Act [note preceding § 1 
of this title].

(b) Complaints and investigations-—Hearings and or­
ders of Commission. Whenever, after hearing, upon com­
plaint or upon its own initiative, the Commission finds 
that any minimum rate or charge of any contract carrier 
by motor vehicle, or any rule, regulation, or practice of 
any such carrier affecting such minimum rate or charge, 
or the value of the service thereunder, for1 the trans­
portation of passengers or property or in connection 
therewith, contravenes the national transportation policy 
declared in this Act [note preceding § 1 of this title], or 
is in contravention of any provision of this part [§§ 301- 
305, 306-327 of this title], the Commission may prescribe 
such just and reasonable minimum rate or charge, or 
such rule, regulation, or practice as in its judgment may 
be necessary or desirable in the public interest and to 
promote such policy and will not be in contravention of 
any provision of this part [§§ 301-305, 306-327 of this 
title]. Snch minimum rate or charge, or such rule regula­
tion, or practice, so prescribed by the Commission, shall 
give no advantage or preference to any such carrier in 
competition with any common carrier by motor vehicle 
subject to this part [§§301-305, 306-327 of this title],



INDEX XV

which the Commission may find to be undue or incon­
sistent with the public interest and the national trans­
portation policy declared in this Act [note preceding § 1 
of this title], and the Commission shall give due consid­
eration to the cost of the services rendered by such 
carriers, and to the effect o f such minimum rate or 
charge, or such rule, regulation, or practice, upon the 
movement of traffic by such carriers. All complaints shall 
state fully the facts complained of and the reasons for 
such complaint and shall be made under oath.

(c) New or reduced charges—Hearings and orders— 
Suspensions. Whenever there shall be filed with the 
Commission by any such contract carrier any schedule 
stating a charge for a new service or a reduced charge 
directly, or by means of any rule, regulation, or practice, 
for the transportation of passengers or property in in­
terstate or foreign commerce, the Commission is hereby 
authorized and empowered upon complaint of interested 
parties or upon its own initiative at once and, if it so 
orders, without answer or other formal pleading by the 
interested party, but upon reasonable notice to enter 
upon a hearing concerning the lawfulness of such charge, 
or such rule, regulation, or practice, and pending such 
hearing and the decision thereon the Commission, by fil­
ing with such schedule and delivering tô  the carrier af­
fected thereby a statement in writing of its reasons for 
such suspension, may from time to time suspend the op­
eration of such schedule and defer the use of such charge, 
or such rule, regulation, or practice, but not for a longer 
period than seven months beyond the time when it would 
otherwise go into effect; and after hearing, whether 
completed before or after the charge, or rule, regulation, 
or practice goes into effect, the Commission may make 
such order with reference thereto as would be proper in



XV I INDEX

a proceeding instituted after it had become effective. If 
the proceeding has not been concluded and an order made 
within the period of suspension, the proposed change in 
any charge or rule, regulation, or practice shall go into 
effect at the end of such period: Provided, That this 
paragraph shall not apply to any initial schedule or 
schedules filed on or before July 31, 1938, by any such 
carrier in bona fide operation when this section takes 
effect. The rule as to burden of proof specified in section 
216(g) [§ 316(g) of this title] shall apply to this para­
graph. (Feb. 4, 1887, c. 104, Part II, § 218, as added Aug. 
9, 1935, c. 498, 49 Stat. 561; June 29, 1938, c. 811, § 17, 52 
Stat. 1240; Sept. 18, 1940, c. 722, Title I, §§16, 23, 54 
Stat. 919, 925.)



Argued by 
H en ry  S. M iller

States (Emxrt n! Appeals
F ob th e  S econd C ibctjit

No. 29064

------------------------------------------ — ----------0“ ----------------------------------- -------------------

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 BRIEF

Preliminary Statement 

The Issues

Defendant appeals from a judgment of $5,000 awarded 
to plaintiff following a trial before a court without a 
jury, for an arrest and assault by a police officer while 
she was a passenger on a motor bus in Georgia operated 
by Southern Stages, Inc. Plaintiff did not join Southern 
Stages, Inc. as a party defendant, nor did she make any 
attempt to do so.



2

Defendant is a common carrier operating a bus line 
under franchise from New York City to Washington 
(113a).* It maintains a sales office in the Port Authority 
Terminal in New York City. As required by the Inter­
state Commerce Commission, for passengers desiring to 
journey south, beyond Washington, defendant sells 
“ through”  tickets for travel over lines of connecting 
carriers pursuant to public filed tariffs containing a pro­
vision that in issuing tickets under tariffs subject thereto 
for passage over the lines of other carriers participating 
in such tariff, the issuing carrier acts only as agent and 
does not assume responsibility over the lines of other 
carriers. A  similar limitation of liability is printed on 
every ticket.

Defendant sold to plaintiff, a negro, coupon tickets for 
passage from New York City to Montgomery, Alabama 
which required her to journey over the lines of five con­
necting carriers. In Georgia she was a passenger of 
Southern Stages, Inc. on a bus, not owned or leased by 
defendant, which was driven by an employee of Southern 
Stages, Inc., neither bus nor driver being in any way 
under the control of defendant.

While on that line plaintiff was roughly handled and 
taken into custody by a police officer, the local sheriff, 
because she did not proceed to change her seat quickly 
enough at his command.

The issues here presented are:
1. Is this defendant liable to plaintiff for acts com­

mitted on the line of Southern Stages?
(a) As subsidiary to the foregoing question, is defend­

ant liable for the acts of a police officer, or the act of the

* References are to pages in Appellant’s Appendix.



3

driver employed by Southern Stages in calling the police 
officer and identifying plaintiff?

2. Did the trial court err in holding that the rule in 
Louisville & Nashville R.R. Co. v. Chatters, 279 II. S. 
320 (that the initial carrier selling a through ticket under 
attendant limitation of liability contained in the tariff 
or on the ticket is not liable for injury beyond its own 
line) is not applicable to this case?

If the challenged ruling of the court below is permitted 
to stand, then the safeguards for initial carriers selling 
tickets afforded by the Interstate Commerce Act, by the 
procedure and practice long established by the Interstate 
Commerce Commission, and by the doctrine laid down by 
the Supreme Court will be nullified.

The decision to be rendered here is of momentous im­
portance not only to appellant but to all common carriers 
engaged in interstate commerce.

Other colored people boarded the bus in New York 
with the plaintiff. She testified that at no time in board­
ing the bus and while staying on the bus which she 
boarded in New York was there any discrimination shown 
as between white and colored passengers (73a). Defend­
ant has a substantial stake in law and order and decency 
being observed on lines of connecting carriers. Of the 
travelers journeying south, one-third of the tickets sold 
by defendant pursuant to joint tariffs ordered by the In­
terstate Commerce Commission are sold to colored pa­
trons (113a). On its own line there is no discrimination 
made between white and colored patrons (113a-114a).

Is a wholly innocent initial ticket selling carrier to be 
mulcted in damages for irresponsible or lawless or mali­
cious acts committed on a line and in a bus over which it 
has: no control?



4

The Complaint

In her complaint plaintiff alleges:

On August 7, 1959 she was a passenger in a motor 
coach owned, operated, managed and controlled by de­
fendant as it traveled between Raleigh, North Carolina 
and Montgomery, Alabama (Pars. Fourth and Fifth). 
Plaintiff was humiliated and assaulted by a person on the 
bus who “ kidnapped”  her (Par. Sixth). The assault 
and “ kidnapping”  were occasioned by the negligence of 
defendant, among other things, in permitting a person 
“ known to practice brutality upon negroes”  to board the 
bus; in failing to prevent the assault and in failing to 
advise plaintiff of the danger of her position (Par. Sev­
enth). The assault and kidnapping was participated in 
and by employees, servants and agents of the defendant 
acting within the course of their duties (Par. Eighth).

The Facts

Appellant’s Procedures in the Sale of Tickets
Safeway Trails, Inc., a common carrier, sells tickets for 

travel on its own franchise line and on the lines of con­
necting carriers (114a) pursuant to rates set forth in joint 
tariffs and in accordance with directions contained in the 
Interstate Commerce Act (Sec. 316, 135a). As the seg­
mented coupons are collected by connecting carriers they 
are sent in to defendant for redemption of their share of 
the fare.

Nome of the money collected by defendant from pas­
sengers on the sale of tickets for connecting lines goes to 
•appellant. Ninety per cent is paid to the connecting car­
rier; there is a standard so-called “ commission”  of ten 
per cent deducted by Safeway Trails, hut that ten per 
cent is paid over to the New York Port Authority for thei 
use of its terminal facilities (128a-133a, 144a-147a).



5

Compliance with Requirements of Interstate 
Commerce Commission

The National Bus Traffic Association, Inc. representing’ 
carriers throughout the United States compiles their 
joint tariffs and files them with the Interstate Commerce 
Commission (115a-116a). Schedules thus filed must also 
show the divisions of fares between carriers (129a-130a, 
143a).

Defendant’s Exhibit 0  is a certificate from the Inter­
state Commerce Commission that the National Bus Traf­
fic Association Inc., as agent, had filed passenger tariff 
No. A-100 showing joint one-way and round-trip fares, 
rules, regulations, rates and special arrangements which 
were in effect in 1959. Attached to the certificates is an 
abstract of the names of carriers alphabetically listed, 
including Safeway Trails, Inc., and an abstract of the 
rules and regulations. Rule No. 6 entitled “ Liability”  
states:

“ (4) In issuing tickets and checking baggage 
under tariffs subject hereto for passage over the 
lines of other carriers participating in such tariffs, 
the issuing carriers shown in such tariff act only 
as agents and do not assume responsibility for 
transportation over the lines of other carriers ex­
cept as responsibility may be imposed by law with 
respect to baggage.”

Time tables were published for the use of the public 
showing the service of the defendant between New York 
and Washington and through service with connecting 
carriers (118a-129:a, Defendant’s Exhibits D and E).



6

Tickets Sold to Plaintiff

Plaintiff purchased a ticket to travel from New York 
to Montgomery, Alabama and return. It consisted of 13 
coupons. Each coupon, except the receipt, was for a 
specific carrier designated on that coupon (122a-124a). 
She was to proceed on the following lines: Prom New 
York to Washington on defendant’s line; from Washing­
ton to Richmond on the line of Virginia Stage Lines, 
Inc.; from Richmond to Fayetteville, N. C. on the line of 
the Carolina Coach Company; from Fayetteville to 
Augusta, (fa. on the line of Queen City Coach Company; 
from Augusta to Columbus, Ga. on the line of Southern 
Stages, Inc.; and from Columbus to Montgomery, Ala­
bama on the line of Capitol Motor Lines, Inc. Passing 
through Warrenton, Ga., where the incident here in­
volved occurred, plaintiff was on the line of Southern 
Stages (123a-124a). Each coupon shows on its face the 
name of the line carrying the passenger by means of 
abbreviations filed with the ICC (121a). On every coupon 
on the ticket sold to plaintiff there was printed,

“ In selling this ticket and checking baggage 
thereon, the selling carrier acts only as agent and 
is not responsible beyond its own line and does 
not assume expense of transfer at any junction 
point or guarantee connections”  (Plaintiff’s Ex­
hibit 1, Defendant’s Exhibit B ; 125a-125b).

Ownership and Operation of Bus and 
Changes of Driver and Buses

Defendant’s Answer denies that it owned the bus which 
plaintiff boarded in New York. This denial is not dis­
puted. It further denies that it operated or controlled 
any bus on which plaintiff was a passenger below Wash­
ington, D. C., and that denial too is not disputed.



7

Defendant operated and was in control of the bus from 
New York to Washington (127a). Its drivers do not 
operate beyond Washington. On the occasion in ques­
tion specifically, its driver left the bus in Washington 
(127a). From then on none of the bus drivers who came 
on from time to time was in the employ of defendant 
(127a).

According to plaintiff’s witness Benjamin, and in part 
the plaintiff herself, drivers were changed at Washing­
ton; there was another change of drivers at Richmond; 
and another change at Raleigh. There was a change of 
buses at Raleigh and also somewhere in South Carolina 
(108a, 28a). At Raleigh, where the plaintiff’s seat 
reservation terminated, there was a stop and change of 
bus. After boarding the new bus, plaintiff inquired 
about her seat and the driver told her, “ Lady, on this 
bus you sit anywhere”  (31a). Some time after leaving 
Raleigh there was another change of drivers (2:9a).

(Despite the loose talk of plaintiff about a reserved 
seat for the entire trip, the fact is that the written reser­
vation coupon for seat 34 issued to plaintiff when she 
purchased her ticket is plainly marked as a reservation 
to and not beyond Raleigh, N. C. (Defendant’s Exhibit 
A ). That seat was located in the next to the last row 
(121a).

The Sheriff Loses His Temper
After leaving Augusta, (la. a white woman with two 

children came aboard. She complained there were no 
seats available for her in the front part of the bus. The 
driver suggested to two negro soldiers that they give up 
their seats; they refused; nothing happened to them. The 
driver then asked plaintiff and Mrs. Benjamin to take



seats in the rear. They refused. “ I had my reservation 
and I  wouldn’t move”  (29a). (Actually she had no res­
ervation.) At the next stop the bus driver left the vehicle. 
According to Mrs. Benjamin—not plaintiff (30a)—he said 
something about going out to telephone and “ don’t 
■worry” . After the driver returned plaintiff fell asleep. 
About an hour and a half later (32a), when the bus came 
to a stop in a town called Warrenton, a man boarded the 
bus. It was shortly after midnight.

In line with the peculiar allegations of the complaint, 
both in her examination before trial and at the trial plain­
tiff sought to avoid an admission that it was a police 
officer who had the altercation with her, assaulted her and 
took her into custody. It was a “ voice”  of an unidentified 
man that spoke to her on the bus, and again on entering 
the hospital (35a, 45a, 82a). “ Wasn’t he a police officer”  
she was asked in the pre-trial examination. “ I don’t 
know. Was he? I don’t know”  (Transcript, pre-trial ex­
amination, page 15).

But it was a police officer; in fact, the local sheriff, and 
she knew it at all times. He wore a uniform and badge 
and carried a club and a pistol (107a). She knew that 
she was taken to the hospital by the sheriff and that she 
was in the custody of the sheriff and so told her own 
physician, Dr. Reid (88a).

The driver identified plaintiff and Mrs. Benjamin. The 
latter was awake and when told to go to the rear she com­
plied. Plaintiff was awakened by a tap on the shoulder 
and the sheriff ordered her to go to the back.

Presumably the bus driver and sheriff tried to get plain­
tiff to change seats acting under the Georgia segregation 
statute, Georgia Code, Section 18-207, and Rule 48 of the 
Georgia Public Service Commission. She said, “ I have



9

my ticket and I ’m not- moving.”  * She was in fact willing 
to leave the' bus, only she wanted her money back, she told 
the officer. She arose, evidently having changed her mind, 
and looked toward the rear. But the sheriff became angry 
and he, too, changed his mind and he said, “ No, you go 
that way” , indicating the front exit. Plaintiff proceeded 
toward the exit but, it was not quick enough for the sheriff 
and he nudged or pushed her forward and as she was leav­
ing the bus and when outside the bus, he struck her. See­
ing that she was hurt and bleeding, he brought her to a 
hospital. She was there in the custody of the sheriff; but 
when no charges were preferred against her the, hospital 
released her later on the same day (48a, 49a). Evidently 
there were no serious injuries. Upon leaving the hospital 
she proceeded the same day to Montgomery to- visit a law­
yer in connection with a contemplated law suit (64a), and 
then returned to New York City.

There is a hardly visible scar on her forehead (56a, 
156a) and a %  inch, by % inch scar on the right leg 
(157a). Her medical expenses total $137.00 (53a, Plain­
tiff’s Exhibits 6-9). Upon her return to New York she 
saw her physician, Dr. Beid, five or six times, always at 
the doctor’s office (63a). She lost 15 working days at 
$12.50 per day (59a-60a). (See Plaintiff’s Exhibit 6A.) 
Apart from the question of liability, the award of $5,000 
is groissly excessive.

* In her complaint she alleges that “ said person” prevented her 
from moving further to the rear, thus indicating the change of seats 
was not the issue; it was the sheriff’s anger with her slowness in 
complying (3a).



1 0

By amendments to the Interstate Commerce Act 
Congress assumed control o f  the transportation o f  pas­
sengers and property by m otor carriers engaged in 
interstate commerce and the regulation o f  such trans- 
poration was vested in the Interstate Commerce Com­
mission.

See the declaration of national transportation policy 
preceding Title I of the Interstate Commerce Act cited on 
pages iii-iv.

National transportation policy requires Government con­
trol of common carriers to promote the free flow of inter­
state commerce, and the convenience of the public is of 
paramount consideration. Carriers may not operate with­
out franchises from the Interstate Commerce Commission. 
On pain of suspension of the franchise, the carrier must 
adopt a uniform system of accounts on forms for accounts 
and records all prescribed by the Commission (Section 
20(3) (5)), and must establish reasonable through routes 
with other carriers and individual and joint rates, fares 
and charges and equitable divisions thereof approved by 
the Commission, and in case of non-observance, the Com­
mission itself may establish such rates, divisions, rules, 
regulations and practices (Section 316 (a ) (c ) (d ) (e ) ( f ) (g )  
(h)(i) .  The carrier must file with the Commission and 
beep open to public inspection tariffs showing all rates, 
fares and charges for transportation between points on 
its own route and between points on its own route and the 
route of any other carrier (Section 317). The carrier 
must file with the Commission schedules containing rules, 
regulations and practices in form and manner prescribed 
by the Commission (Section 318).

P O IN T  I



1 1

The witness Stevens, defendant’s manager in New York, 
testified to the control of the Interstate Commerce Com­
mission in the fixing of rates charged by defendant (211- 
212) .

As was said in Glaser v. Penn R. R. and others, 196 A. 
2d 539, 82 N. J. Super. 16, at page 542,

“  * * * the interstate commerce field has been pre­
empted by the Congress and legislation rising there­
from in that regard is the supreme law of the land.

Under the Interstate Commerce Act (I. C. A.) no 
carrier by railroad may either extend or abandon 
its line or any part thereof except on the basis of 
a permissive order of the I. C. C. after notice and 
hearing. 49 U. S. C., §1(18). There are severe 
penalties for violation. 49 IT. S. C. §1(20). And 
carriers by railroad engaged in interstate commerce 
must provide the services and transportation set out 
in their filed tariffs, 49 U. S. C. §1(4), 2, 3, 4(1), 
5(2), 6. Section 6(1) requires the filing of tariffs 
over ‘ through routes’ showing joint or separately 
established rates.”

The court also said at page 541:
“ A  discussion of the reason underlying the sale 

of a ticket for travel on several roads before ar­
rival at the passenger’s destination is not inappro­
priate here. The country as a whole is covered by 
a network of large and small railroads, many of 
which are under lease one to another. * * * The 
Congress sought in 1887 to establish a coordinated 
system in the interest of the nation as a whole, the 
roads involved, and the passenger and freight cli- 
entels. 49 U. S. C. §§1 to 1532. * * *



12

The powers of the Interstate Commerce Commis­
sion (I. C. C.) are largely defined in the Transpor­
tation Act of February 28, 1920, which must be 
read in conjunction with the Transportation Act of 
1940 which ‘ was intended, together with the old 
law, to provide a completely integrated interstate 
regulatory system over motor, railroad, and water 
carriers.’ United States v. Pennsylvania R. Co., 
323 U. S. 612, 618-619, 65 S. Ct. 471, 474-475, 89 
L. Ed. 499 (1945).

To force this plaintiff passenger to buy a ticket 
from Newark to Washington, another there to 
Richmond, and a third there to Florida, to seek out 
her trains at each road’s terminus, to switch her 
seat reservation at each terminus, would hardly be 
in line with the integrated and economic system of 
roads envsiioned by the Congress in its legislation 
over eight decades. The through or coupon ticket 
is for the convenience of the public and to facilitate 
and encourage travel. Philadelphia & Reading Ry. 
Co, v. McKibbin, 243 U. S. 254, 37 S. Ct. 280, 61 L. 
Ed. 710 (1917).”

To the same effect:
Cray v. Penn Greyhound Line, 110 A. 2d 892, 177 

Pa. Super 275, at page 894.



1 3

The limitation o f  liability Included in the tariff filed 
on behalf o f  appellant became part o f  the contract be­
tween plaintiff and defendant.

The Limitation Printed on the Ticket Would Alone 
Constitute a Contract Binding on Both 

Carrier and Passenger
Louisville & Nashville By. Co. v. Chatters, supra;
Cray v. Penn Greyhound Line, supra;
Missouri Pacific B.B. Co. v. Prude, 265 U. 8. 99 ;
Penn ll.lt. Co. v. Jones, 155 U. 8. 333.

As to the ticket, it was said in Missouri Pacific R.R. 
Co.:

“ Acceptance and use of the ticket sufficed to es­
tablish an agreement, prima facie valid, which 
limit the selling carrier’s liability. Mere failure of 
the passenger to read matter plainly placed before 
her cannot overcome the presumption of assent”
(p. 101).

The attendant limitation of liability on the ticket by 
the selling carrier as to its own line become the lawful 
condition upon which the services are rendered, binding 
alike on the carrier and its passenger.

Louisville <fs Nashville Ry. Co. v. Chatters, supra.

In Cray, at page 895, the court said:

“ Tariffs lawfully established * * * have the ef­
fect of law, and are binding on both passenger 
and carrier.”

P O IN T  II



14

Passengers are presumed to know public rates and 
schedules.

Chicago & Alton R. R. Go. v. Kirby, 225 U. S.
155, 156.

In Glaser v. Penn R. R. Co., supra, at page 541, the 
court said:

“ It (the through or coupon ticket) is sold under 
a joint tariff agreed to by the carriers concerned 
and filed by them with the I. C. C. This tariff pro­
vides that the carrier selling the ticket acts as 
agent of the others. The attendant limitation of 
liability on the ticket by the selling carrier as to its 
own line becomes the lawful condition upon which 
the service is to be rendered, binding alike on the 
carrier and its patron. Louisville & N.R.R. Co. v. 
■Chatters, 279 IT. S. 320, 49 8. C't. 329, 73 L. Ed. 711 
(1929).”

This is not an individual contract made between this 
carrier and plaintiff. The limitation is used nationwide 
applying to all. carriers engaged in interstate commerce.

It is significant that with respect to the transportation 
of goods, the initial carrier is made liable with provision 
for recovering over from connecting carriers (49 U. S. C. 
§20(11)). That Congress did not legislate similarly as to 
passenger transportation is not an oversight. As the 
court said in Glaser, at page 540 :

“ It is obvious why there is the differentiation in 
the legislative enactment concerning goods and bag­
gage and the failure to enact similar legislation re­
garding passengers. See the Constitution of the 
United States of America, pp. 246 et seq. (1952 ed. 
rev. and ann.).”



1 5

Appellant is not liable for the acts committed while 
plaintiff was on the line of Southern Stages.

Appellant acted merely as agent for the sale of tickets 
over the lines of connecting carriers which plaintiff re­
quired in order to reach her destination. It did not own, 
lease, operate or in any way control the bus. The driver 
was an employee of Southern Stages. It is a peculiar 
kind of “ agent”  where under law the carrier must sell 
tickets for connecting lines by order of the Interstate 
Commerce Commission. But the word “ agent”  has been 
used by the Supreme Court and other courts in a limited 
sense to relieve the carrier of responsibility for acts oc­
curring on connecting lines. In this connection, there is 
an apt observation by the New Jersey Superior Court in 
Glaser v. Penn R.R. Co., supra, at page 542:

“ The ticket was apparently sought and pur­
chased by plaintiff. There were other available 
modes of transportation to plaintiff, viz., bus, air­
line. She was not a captive to a single mode of 
transportation. The selling carrier was certainly 
a captive agent, and the word as used is not in the 
broad legalistic sense.”

The action was commenced on the theory that defend­
ant owned, operated and controlled the bus (Complaint). 
When, however, plaintiff’s counsel discovered that neither 
bus nor driver was in any way under the control of de­
fendant and further discovered the Interstate Commerce 
Act and the decisions thereon, the theory was changed. 
A  fine-spun theory was advanced that by selling a 
“ through”  ticket and by reserving a seat (although the 
reservation, Defendant’s Exhibit A, plainly indicates it is

POINT III



1 6

good only as far as Raleigh, N. C. where a change of bus 
was scheduled), defendant guaranteed safe passage 
throughout the entire trip. The record is replete with 
such contentions. The trouble with that theory is that it 
is contrary to the provisions of the Interstate Commerce 
Act, the rules and practice of the Interstate Commerce 
Commission, and the decisions of the courts.

The leading case, in which the applicable doctrine was 
laid down by the Supreme Court in clear language, is 
Louisville & Nashville R.R,. Co. v. Chatterssupra. That 
case is on all fours with the case before this Court, ex­
cept that the nature of the tort is different. There the 
respondent (Chatters) purchased a through coupon 
ticket for the journey at the office of the Louisville & 
Nashville in New Orleans, which entitled bim to passage 
over the line of the Louisville & Nashville from New 
Orleans to Montgomery, Alabama, over the Atlanta & 
West Point RR. to Atlanta, and then to Washington over 
the line of the Southern. He was injured by pieces of 
flying glass due to the loosening of a window hinge. The 
accident occurred in Virginia on the line of the Southern. 
He sued both the Louisville & Nashville and Southern.

The court pointed out that under the arrangement ex­
isting between them, each carrier was in possession of 
the train but each, while in possession, was not in ex­
clusive control over it; that each carrier furnished its 
own locomotive power and train crew; each inspected, 
cleaned, washed and repaired the equipment; but the 
Louisville & Nashville had no control over it after the 
train left its own tracks (pp. 323, 329-30).

The ticket contained a clause reading:

“ In selling this ticket and checking baggage 
thereon the selling carrier acts only as agent and 
is not responsible beyond its own lines”  (p. 330).



1 7

The court said at pages 327-328:

“ The cause of action here asserted is one aris­
ing out of a contract for transportation, evidenced 
by the through ticket sold to respondent in New 
Orleans and accepted by the Southern for trans­
portation over its line. It purported on its face to 
be sold by the Louisville & Nashville as agent and 
was sold under a joint tariff agreed to by the car­
riers concerned and filed by them with the Inter­
state Commerce Commission providing that the 
carrier selling the ticket acted as agent of the 
others.”

J2, .«. -ALw ve w w
“ But the sale in Louisville of the ticket for 

transportation over the Southern was made by the 
Louisville & Nashville under the filed joint tariff 
as the agent and for account of the Southern.”

At pages 330-331 the court held:

“ But there was no basis, either in pleading or 
proof, for a joint liability of both petitioners for 
the negligence of one. Neither of them, as a com­
mon carrier, was under any duty, either by the 
common law or statute, to transport or assume1 
any responsibility for the transportation of re­
spondent beyond its: own line (citing cases). The 
Louisville & Nashville therefore might by stipula­
tion on the through ticket, provide that it should 
not be so responsible (citing oases) and in any 
case, the transportation service to he performed 
was that of a common carrier in interstate com­
merce under public tariffs and the attendant limi­
tation of liability in the tariff became the lawful 
condition upon which the service was rendered,



1 8

binding alike on the carrier and its patron (citing 
cases). There was therefore no evidence of joint 
liability of the petitioners in the case, and there 
could be no liability of either for injury to re­
spondent occurring beyond its own line except on 
the theory that its own negligence caused or con­
tributed to the injury.”

The most recent case on the subject is Glaser v. Pern 
R. R. el al., supra. In that case plaintiff purchased a 
ticket from the Penn Railroad Co. for round-trip trans­
portation from Newark, New Jersey to Orlando, Florida 
on a through train over the trackage of several named 
railroads. The situs of the accident was the line of the 
Richmond, Fredericksburg & Potomac Railroad.

The court after commenting at length about the pur­
poses of the Interstate Commerce Act, the filing of the 
tariff by the carrier, etc., concluded:

“ The Chatters case is the law of this state, and 
for that reason the motion of Penn for summary 
judgment is granted.”

Another ease in point is Spears v. Transcontinental Bus 
System, 226 F. 29, 94 (OCA 9th C'ir.) (c.d. 76 S, Ct. 326, 
350 IJ. S. 950; Rehearing denied 76 S. Ct. 443; 350 U. S. 
977). Plaintiff, a negro, purchased a bus ticket from 
appellee Transcontinental at Pasadena, California for 
transportation from San Francisco to New Orleans and 
return. While routed between Memphis, Tenn. and Jack- 
son, Miss., jnst outside of Winona, the bus driver de­
manded that he move from the fourth seat on the right- 
hand side of the bus to the back seat in order to segregate 
Spears from white passengers. Spears sued for violation 
of civil rights in the United States District Court for the



1 9

Southern District of California. Service of process was 
made on appellant as the authorized a,gent in California. 
The evidence showed that the wrongful acts took place 
on a bus owned and operated by Continental Southern 
Lines, Inc., a separate corporation of Alexandria, Louisi­
ana,, whose stock was entirely or almost entirely owned by 
the appellee. The bus driver was an employee of Con­
tinental Southern. He acted under a Mississippi statute 
requiring that equal but separate accommodations be pro­
vided for members of the white and colored races on com­
mon carriers. The ticket sold to Spears and the limita­
tion in the published tariff filed with the ICC were similar 
to those in this case.

The Court said at page 97:

“ Spears maintains that Transcontinental should 
be held responsible for the wrongful act of the bus 
driver because a common carrier selling a ticket to 
a point beyond its own lines is liable for injuries 
to a passenger. Generally, however, a carrier is 
only responsible for acts over its own lines, acts 
over which it has control.”  (Citing Louisville & 
Nashville E. R. Co. v. Chatters, 279 U. 8, 320 and 
Solomon v. Penn R. R. Co., 96 F. Supp. 709.)

The Court further said at page 97:
“ As to this claim, we hold that Transcontinental 

was acting merely as agent for Continental South­
ern in the sale of the ticket for transportation, and 
assumed no responsibility for acts beyond its own 
lines.”

In Morrison v. Pennsylvania FI. R. Co., Vol. 6, OC'H, 
Federal Carriers Cases, par. 80370, p. 3013 (ITSDC1 South­
ern District, Nov. 4, 1946, Leibell, D. J.) plaintiff had pur­



20

chased tickets from defendant. She was injured while in 
a car operated hy a connecting carrier. She argued that 
Section 70 of the Railroad Law of New York imposed an 
ahsolute statutory liability upon the defendant, the initial 
carrier, for injuries received by a passenger due to negli­
gence or misconduct occurring on connecting lines where 
the passenger purchased a through ticket from the initial 
carrier. The court held that the New York statute did 
not apply. It then said at page 2015:

“ It therefore appears that there is no statutory 
liability imposed upon the defendant initial carrier, 
either by federal or state statute, for the injuries 
sustained by the passenger on connecting lines. In 
this view of the: statutes and under the rule of 
Louisville & Nashville R. R. Co. v. Chatters, 279 
IT. S. 320 and Missouri Pacific R. R. Co. v. Prude, 
265 U. 8. 99, the initial carrier’s liability would de­
pend upon the terms of its contract with the pas­
senger as evidenced by the railroad ticket and by 
the provisions of its published tariffs. Talcott v. 
Wabash R. R. Co., 159 N. Y. 461.”

In Solomon v. Penn R. R. Co., 96 F. Supp. 709, (Judge 
MeG-ohey, U. S. D. C., S. 1).), plaintiff had purchased 
from the Penn Railroad a ticket from New York to Lake­
land, Florida. The car to Richmond, Virginia was turned 
over to and was operated by the Atlantic Coast Line. The 
court held the Atlantic Coast Line liable but dismissed 
the complaint against the Pennsylvania R. R.

And see also Louisville R. R. Co. v. Webb, 248 S. W. 2d 
429 (Court of Appeals of Kentucky).



21

POINT IV

The Court below erred in holding that the circum­
stances o f  this case make inapplicable the rule laid 
down in Louisville & Nashville R. II. Co. v. Chatters 
and the cases which follow  that rule.

The Trial Judge not only erred on the law but com­
mitted grievous error as to the facts. The Court’s opin­
ion states:

“ Under the circumstances of the present case, 
however, it is the opinion of this court that al­
though the exculpatory declarations on the hack of 
the tickets, as well as Rule 6(4) of the tariff, would 
apply where there is a mere sale of the ticket there 
are other factors present here, in addition to a 
mere sale of a ticket, which render this defendant 
liable.”

The Court concedes that a contrary result was reached 
in Glaser v. Penn R. R.

“  * * * but it was explicitly found by the court 
there that the record was destitute of proof that 
any compensation had been reached for selling the 
through or coupon ticket for use beyond the sell­
ing carrier’s line.”

The Court then proceeds to list distinguishing factors 
and, says the Court,

“ Thus the totality of these additional factors re­
sult in the defendant in this case becoming the prin­
cipal in the engagement to transport plaintiff to 
Montgomery, Alabama, and render the disclaimers 
inoperative to exempt defendant from liability.”



22

An analysis of the facts constituting the totality of 
these factors is in order.

1. First and foremost, the Court’s decision is based 
upon its express assumption that the appellant received 
10% of the proceeds derived from the transportation of 
plaintiff over the lines of connecting carriers. To which, 
there are two answers:

(a) It makes not a particle of difference whether or 
not the initial carrier receives any gain from the sale of 
tickets over connecting lines. The division of fares in 
the final analysis is determined by the Interstate Com­
merce Commission. Nowhere in the opinion of the Court 
in Chatters, which is quite clear, full and explicit, is there 
any mention of the gain or absence of gain to the selling 
carrier as a factor, and ordinarily it would be expected 
that there would be a share in the proceeds. Surely the 
Supreme Court was aware that the Interstate Commerce 
Act, section 316(h) (i) provides guides for the determi­
nation of rates and the division by the Interstate Com­
merce Commission. Nor is there any mention of money 
that might inure to the selling carrier in any of the cases 
cited above which follow the rule in the Chatters case, 
with the exception of the dicta in Glaser v. Penn R.Ii.

(b) The undisputed fact is that appellant received 
nothing from the sale of coupon tickets beyond its own 
line.

Stevens, appellant’s manager, testified explicitly that 
it received nothing. It paid out everything it received. 
I f  a ticket sold for $10.00, Safeway Trails remitted $9.00 
to the carrier, withheld $1.00 or 10% as so-called com­
missions, and turned over the $1.00 to the Port Author­
ity. No matter what the semantics of the interrogation



2 3

and narration, no part of that $10.00 went to Safeway 
Trails. This is a matter of public record.

Lest there be the slightest doubt that the Court over­
looked the plain facts on this point, let the testimony 
speak for itself:

Page 128a:

Q. (By the Court) Would that be the total 
amount! You mean to tell me Safeway didn’t 
make anything for selling these tickets except from 
New York to Washington! A. That’s correct.

Pages 129a-130a:

The Court: Perhaps I can clear it up.
# # # # #

Let me ask you this, what the counsel and I 
want to know, anyway this is what I want to 
know, first you tell me that the Safeway Trails 
made no money on this ticket beyond Washing­
ton. Am I correct in that!

The Witness: That’s right.
The Court: In other words, all they made was 

from here to Washington and then from that 
point on you sold a ticket as an aid or help to 
the connecting lines!

The Witness: As agent for the other connect­
ing lines, the same as they would sell a ticket for 
our line.

The Court: Your company did not make a 
quarter out of it!

The Witness: We paid out everything we took 
in with the exception of the fare from New York 
to Washington.



24

The Court: Is that represented by your tariff 
which yon filed by the Interstate Commerce Com­

mission!
The Witness: Not in this A 100 but in another 

tariff.

Page 130a:
Mr. Miller: I want to follow it up still further.

Q. Let us suppose that the ticket from New York 
to Washington is $15—I don’t know what it is, but 
we will take an even figure, $15. Then there are 
various amounts for the connecting carriers, so 
that the total, we will say, is $50.

Is it your testimony then that all that Safeway 
would get would be $15? A. That is correct.

The Court: That answers the question.

Pages 132a-133a:
By Mr. McKinney:

Q. With respect to whether or not Safeway 
Trails received any portion of the fare that is paid 
for a particular portion of the journey which os­
tensibly is across the lines of another connecting 
carrier, you indicated none? A. That is. correct.

Q. Does Safeway Trails receive any commission 
for the issuance of the ticket? A. Yes, there is a 
standard allowance for the sale of a ticket through­
out the country in the motor bus industry, and 
that is 10 per cent, there is a deduction of 10 per 
cent and they bill for 90 per cent of that particu­
lar portion, and that 10 per cent is to offset termi­
nal cost, such as they are here in New York. We 
pay 10 per cent of all money taken in to the Port 
of New York Authority for the use of their termi­



2 5

nal, so the money is just passed on by the carrier 
for its terminal facility.

The Court: Safeway Trails, Inc. gets back 
some money when you sell a ticket from New 
York to Montgomery, Alabama, you say 10 per 
cent, is that right!

The Witness : That is right.
The Court: You say that 10 per cent is what 

you pay, you wouldn’t gain by it because it cost 
you 10 per cent and you pay it over to the Port 
Authority for rent, is that it!

The Witness: That’s right.

Pages 144a-145a:
Q. Mr. Stevens, your terminal is in the Port Au­

thority Terminal in New York! A. That is correct.
Q. Do you have to pay the Port Authority 10 

per cent on every ticket sold by you, whether it is 
over your line or connecting line!

# *  #  # #

A. Indeed we do.

Q. Let us say that a particular ticket is $3, you 
have to account for that to the Port Authority! 
A. Yes, all our sales are subject to audit by the 
Port Authority.

Q. So for that $3 you have to pay 10 per cent of 
that or 30 cents to the Port Authority ! A. Yes.

Q. And that is what you deduct when you remit 
to the connecting carrier ! A. That is correct.

* # # # *
The Court: Did you have a direct arrangement 

with the Port Authority that you had to pay them 
10 per cent on the amount of business you did!

The Witness: Yes, sir. All carriers do.



2 6

Pages 146a-149a:
By Mr. McKinney:

Q. Toil indicated under the arrangement which 
yon have with the Port Authority terminal you have 
to remit to them 10% of the total business done! 
A. Yes.

Q. When you say the total business done, that in­
cludes sales of tickets for transportation of the 
lines beyond your own route and on your route, 
isn’t that correct? A. That is correct.

Q. There is no differential between percentage 
of business over lines beyond your route and be­
tween New York and Washington? A. The Port 
Authority wants 10% of every dollar you take- 
through the ticket window.

2. The next factor relied on by the Court is:
“ In addition, there was an explicit statement on 

each stub that it was issued for the account of this 
defendant.”

So there is. This is merely a matter of recording the 
origin of the sale and keeping accounts. The court will 
recall the provision in the Interstate Commerce Act (§20 
(5) (6) requiring carriers to observe prescribed forms in 
keeping accounts. This language on the ticket is required 
in order that the other carriers rendering part of the 
transportation called for by the ticket, as Southern Stages, 
Inc. did, in this instance, may know whom to bill. It in­
dicates to such, carrier that the defendant, Safeway Trails, 
Inc., was holding the funds for the account of that car­
rier and would pay them over upon an appropriate inter­
line bill. Certainly, these explanatory words printed on 
the ticket did not render nugatory the long established



27

and explicitly approved “ exculpatory declarations”  in 
the tariff.

3. The third factor is:

“ Further, when the round trip ticket was sold 
to plaintiff, there were representations made to 
plaintiff that this defendant had undertaken the 
responsibility of transporting plaintiff to her des­
tination. ’ ’

The testimony of the plaintiff with respect to alleged 
representations appears in her direct examination on page 
25a. She testified:

“ I asked him (the ticket clerk) about a reserva­
tion for the trip. I  told him I wanted to be assured 
I would get a seat all the way, because it was a 
long journey. He assured me I would get a seat 
on the bus.”

She did get a seat; she was given and kept reserved seat 
No. 34 as far as Raleigh, N. C. The reserved seat ended 
there. Then she took another seat.

She further testified that the clerk said “ On interstate 
buses you get reservations and there is no problem.”  But 
at the same time, he pointed out to her that there would 
be a change of bus at Raleigh (25a).

The foregoing is all there is in the record on this mat­
ter. Where, we ask, is there any language1 constituting 
representations that appellant had undertaken the respon­
sibility of transporting plaintiff to her destination? Be­
sides, is the loose oral language of a plaintiff attributed 
to a ticket sales clerk to destroy a solemn written agree­
ment between carrier and passenger embodied in the law 
and approved by the Supreme Court?



Suffice it to call attention to Perni R. R. Co. v. Jones, 
115 U. S. 333, where, after referring to cases following 
the rule of limiting liability of a public carrier to its own 
line (p. 339) the Court said:

“ These cases were followed in Myriek v. Michi­
gan Center Railroad Co., 107 IT. S. 102, 107, and it 
was there said: ‘ In the absence of a special agree­
ment to extend the carrier’s liability beyond its 
own route, such liability will not attach, and the 
agreement will not. be inferred from doubtful ex­
pressions or loose language, but only from clear 
and satisfactory evidence.’ ”

POINT V

Appellant is not liable fo r  the acts o f  the police o f­
ficer, nor fo r  the act o f  the driver in calling the police 
officer and identifying plaintiff.

(a) The bus driver was not the servant of appellant 
and therefore appellant is not responsible for his words 
or actions.

(b) Even though a common carrier is otherwise re­
sponsible to a passenger for tortious acts, nevertheless, 
the bus driver’s action as in this case is not such as to 
east liability on appellant for the police officer’s conduct.

I f  appellant, as agent merely for the sale of the ticket, 
is not responsible beyond its own line by virtue of the 
limitation of liability in the filed tariff schedules and on 
the ticket and the rule laid down in Chatters, then of 
course it is not answerable for the conduct of the driver 
or the sheriff.

But, in any case, on the facts here presented appellant 
is not responsible for the police officer’s conduct.



2 9

Plaintiff had testified in her pre-trial examination that 
she was asleep for about an hour and a half, and was 
asleep when the sheriff appeared. She was thus pre­
eluded from connecting the driver with the sheriff. But 
Mrs. Benjamin was under no such disability. According 
to her, the driver of the bus told the white woman pas­
senger not to worry and shortly thereafter he left the 
bus “ to telephone” . There is no evidence that he did in 
fact telephone to the sheriff, a distance of an hour and a 
half by motor drive. Plaintiff by inference wants the 
Court to hold that he made such a call and that upon 
arriving at Warrenton he pointed out plaintiff and Mrs. 
Benjamin. Let us assume that this is what actually hap­
pened. Both driver and sheriff evidently acted under the 
Georgia segregation laws, which, of course, are uncon­
stitutional today and were unconstitutional in 1959. It 
can hardly be said that the driver and the sheriff would 
know that notwithstanding such laws, they had no consti­
tutional right to request negro passengers to change 
seats. The complaint makes the irresponsible allegation 
that defendant’s agents invited to the bus a person who 
was known to practice brutality upon negroes, without 
offering a shred of proof. Two negro soldiers were not 
molested. Is appellant in New York expected to know 
and anticipate that an altercation would arise following 
the complaint of a white passenger ? Is appellant ex­
pected to know and anticipate that a call to the sheriff 
to ask the negro passenger to change seats (and that is 
what the sheriff did) would result in the latter’s unlaw­
ful acts? After some altercation, plaintiff was willing to 
go to the rear of the bus and later proceeded, as re­
quested, to leave the bus. Is appellant to anticipate that 
the sheriff would lose his temper because plaintiff was. 
not quick enough in obeying him? It is common knowl­
edge that thousands of negroes are constantly traveling



3 0

by bus from northern cities to southern cities and there 
are no incidents. No such knowledge or anticipation 
could be attributed to appellant except, of course, the 
public knowledge that anything can happen and anything 
sometimes does happen in some sections of the South. 
That kind of “ knowledge”  is open to the plaintiff as 
much as to appellant. She is a literate person who had 
considerable schooling; she reads the daily newspapers 
and even magazines (pp. 15-17; 97-98). The possibility 
of race conflict unhappily always exists, but the knowl­
edge of the mere possibility thereof is public and known 
equally to all.

Kinchloiv v. People’s Rapid Transit Co., et al., 88 F. 2d 
764 (CC’A, DC) c.d. 57 S. Ct. 926 was an action by plain­
tiff, a negro woman, to recover damages because of her 
ejection in Virginia from a bus while traveling from New 
York to Norfolk. She charged breach of contract of car­
riage, wrongful ejection and false imprisonment, alleging 
that the ejection by police officers was at the request of 
the bus driver. She had refused to comply with the driv­
er’s request to change seats. The driver left the bus and 
came back with three police officers. There was conflicting 
testimony as to what followed, but she was ejected by 
police officers and then arrested for what they claimed was 
disorderly conduct. A directed verdict for defendants 
was affirmed.

There is no proof that the driver requested the sheriff 
to remove plaintiff from the bus.

Iu Tompkins v. Missouri K  & T Ry. Co., 211 Fed. 391 
(CCA 8th Cir.) where a negro passenger sued for dam­
ages for his ejection from a Pullman car in Oklahoma 
and for his arrest, conviction and fine for disturbing the 
peace, it appeared that plaintiff occupied a Pullman berth 
reserved for white people. He refused the request of the



3 1

conductor to take a seat in a car set apart for negroes, 
The employees of the railroad then notified the officers 
of the law at Vinita of these facts and when the train 
arrived in Vinita they pointed out the plaintiff to the 
officers (p. 393). As to these facts the court held that 
the record contains no evidence that the Pullman company 
or any of its officers or employees ever requested or in 
any way caused or instigated the removal of the plaintiff 
from the Pullman ear in which he was riding or any of 
the acts of which the plaintiff complains (p. 394). It fur­
ther held that the evidence was conclusive that neither 
the defendant nor any of its agents caused the arrest, 
detention and fine (p. 398).

There is a case in Georgia, the situs of the wrongful 
acts in the case at bar, where a ticket agent directed a 
sheriff to arrest the plaintiff passenger, charging crim­
inal offenses (Schoelwin v. Welbarh <& Southeast Grey­
hound Line, 70 S. E. 2d 792, 86 Ga. App. 99). At page 
795 the court said:

“ The fact that the ticket agent of the defend­
ant carrier at Eastman had a personal grievance 
against the plaintiff and after the plaintiff had pur­
chased his ticket to Miami, telephoned the sheriff 
as to the whereabouts of the plaintiff, so that the 
sheriff could serve a warrant taken out by the 
ticket agent against the plaintiff earlier that day, 
does not render the carrier liable where the act of 
the agent in calling the sheriff was purely a per­
sonal one, and the carrier had no interest therein, 
one way or the other.”

In another Georgia case, Brunswick <& Western R, R. 
Co. v. Ponder, 117 Ga, 63, the court after stating that 
“ if a third person assaults a passenger, the railroad must



32

use extraordinary care to protect Mm” , then went on to 
say:

“ At the same time, a conductor would not he 
justified in interfering with the lawful arrest of 
one who happened to he a passenger on his train. 
This is clear. The present case falls within an in­
termediate class. The arrest of Ponder was not 
a lawful one, hut of this fact the officers of the 
railroad company had no notice. The arrest was 
made by officers of the law, acting under color of 
their office, and we think the company was under 
no duty to inquire into the legality of the arrest 
* # *. It would never do to allow a railroad con­
ductor to interfere with officers of the law and pre­
vent arrests by them merely because he did not 
know whether or not they were acting within their 
power and authority ”

In Bowder v. Atlantic Coastline Railroad Co., 144 N. C. 
28, the court said at page 30:

“  # * It is not the duty of a conductor to re­
sist a known officer of the law in making an ar­
rest.

Surely it will not be said that appellant should not 
sell tickets to colored people because of the possibility of 
conflict with a local bigot, be he a passenger, a bus driver 
or a police officer. Appellant could not do so, even if it 
wanted to, as the Interstate Commerce Commission would 
surely suspend its franchise. In New York, where the 
sales are made, it has long been the policy of the State 
to forbid any distinction on the ground of race, ei*eed or 
national origin in the furnishing of services of a public 
nature—places of amusement, public accommodations, 
transportation, etc. (Executive Law, Art. 15, see. 295 
known as the New York Law Against Discrimination.)



3 3

Conclusion

The ticket issued to the plaintiff and the published tar­
iff under which it was issued both clearly indicated what 
transportation the defendant, Safeway Trails, Inc., was. 
obligated to perform, namely, New York, N. Y., to Wash­
ington, D. C. The defendant performed that transporta­
tion and satisfactorily delivered plaintiff' to Washington. 
The ticket and the published tariff also indicated to plain­
tiff that Southern Stages, Inc. was the carrier on whose' 
line the incident occurred. When plaintiff erroneously 
sued Safeway Trails, Inc. she was timely advised that 
she had sued the wrong party. Plaintiff still had ample 
time to pursue her claim against Southern Stages, Inc. 
but elected instead to continue her erroneous suit against 
Safeway Trails, Inc. which had nothing whatever to do 
with the incident. To impose upon Safeway Trails, Inc. 
liability for the excessive award in this' case would not 
only upset the long established law governing interstate 
transportation of passengers, hut would also render nuga­
tory the efforts of Safeway Trails, Inc. to adhere to the 
letter and spirit of the law dealing with such interstate 
transportation of passengers.

The judgment in favor of plaintiff should be reversed 
and the complaint dismissed.
August 14, 1964.

Respectfully submitted,
H e x r y  S. M iller ,

Attorney for Defendant-Appellant.
Charles B. M cI n n is  and 
R oberts & M cI h n is , 

of Washington, D. C.,
Of Counsel.



(6356)