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Berry v. Pennsylvania Railroad Co.

Decided: June 28, 1963.


Giuliano, J.s.c.


[80 NJSuper Page 323] On February 26, 1963 defendant Pennsylvania Railroad Company, a/k/a Pennsylvania Railroad, a/k/a The Pennsylvania Railroad (Pennsylvania), filed a motion for summary judgment pursuant to R.R. 4:58. This motion was consolidated for the purposes of oral argument with a motion filed by defendant Southern Railway System,

a/k/a Southern Railway Company, a/k/a Southern Railway (Southern), to dismiss the action or in lieu thereof to quash the summons and return of service of summons upon the following grounds: (1) lack of jurisdiction over this defendant, (2) insufficiency of process, and (3) insufficiency of service of process.

The complaint which gave rise to this action was filed on December 19, 1962, alleging that plaintiffs Helen Berry, Brenda F. Berry and Ruth Coney became "passengers for hire upon the trains operated jointly and severally by mutual arrangements, joint venture and joint tariff, by and between the defendants, Pennsylvania and Southern." The plaintiffs had made reservations and purchased their tickets through a ticket agent employed by Pennsylvania at the Newark, N.J. terminal for round-trip passage to Ashburn, Georgia, on a train known as the Southerner. The accident involved occurred on December 22, 1960 while plaintiffs were alighting from the train in the Ashburn station.

Plaintiffs seek judgment for damages against Pennsylvania and Southern, jointly and severally, based on defendants' failure to carry out their undertaking to transport them to their destination safely and using due care. Plaintiffs contend further that both defendants were negligent in that they (1) failed to provide a proper station at the plaintiffs' destination at Ashburn, Georgia; (2) failed to bring the train in which they were passengers to a proper stop; (3) failed to give them proper assistance in leaving the train; and (4) caused them to alight from the train unsafely, and that as the result of the defendants' negligence plaintiffs suffered injuries.

In the affidavits of Helen Berry, Ruth Coney and Marie Rogers submitted on behalf of plaintiffs in opposition to this motion, they state that they understood that their trip "was through both the Pennsylvania and the Southern railways on a train called the 'Southerner,'" and that it was their understanding that both the Pennsylvania and the Southern railroads would be responsible for their safety and safe travel from Newark to Ashburn.

In its answer to plaintiffs' complaint Pennsylvania denies any negligent act of omission or commission and it further denies that it operated any of its trains in the State of Georgia. However, Pennsylvania admits that it was a common carrier engaged in the operation of a railroad for transportation of passengers for hire in the State of New Jersey and in various states throughout the United States at the time and place mentioned in the complaint.

In its answers to plaintiffs' demand for admission Pennsylvania admitted that it was engaged in selling railroad transportation to Ashburn, Georgia, from Newark, New Jersey, including transportation over the lines of Southern. This admission was qualified, however, by the statement that Pennsylvania was engaged in this activity "only as provided by the applicable tariff which was in effect as of the date of the particular sale."

In support of its motion for summary judgment Pennsylvania filed affidavits executed by James A. Foshee, the superintendent of transportation of the Pennsylvania, New York region, and John Wyatt, ticket agent of the Pennsylvania at Newark.

In his affidavit Foshee stated that Pennsylvania did not on December 22, 1960, and does not now, operate, own or maintain a railroad, station or any trackage south of Washington, D.C. In addition, he stated that passenger trains and other trains originating north of Washington pass entirely beyond the control of Pennsylvania when the trains proceed south of Washington. Since the plaintiffs' destination was Ashburn, Georgia, the control of the train would be turned over to Southern before it reached the latter point.

In his affidavit Wyatt stated that either of the following legends would have appeared on any ticket which the plaintiffs might have purchased from Pennsylvania at its Newark station for transportation from Newark to Ashburn, Georgia:

"Subject to tariffs. Selling carrier is agent only -- not responsible beyond its line, except as law imposes liability for baggage. Nontransferable." (Emphasis added)


"In selling this book ticket and checking baggage herein, the selling carrier acts only as agent, and is not responsible beyond its own line, except as such responsibility may be imposed by law with respect to baggage." (Emphasis added)

During oral argument counsel for Pennsylvania stated that The Pennsylvania Railroad Company Joint Passenger Tariff I.C.C. No. A-24755, effective June 20, 1959 (I.C.C. No. A-24755), was in effect on December 21 and December 22, 1960. The provisions relied on by counsel are contained in section 1, paragraph 2, of the tariff under the caption of "Responsibility" namely:

"In issuing tickets and checking baggage for passage over the lines of the participating carriers, the issuing carrier acts only as agent and is not responsible beyond its own lines, except as such responsibility may be imposed by law regarding baggage." (Emphasis added)

In support of its motion addressed to the court's lack of jurisdiction, Southern filed affidavits executed by Wiley F. Mitchell, Jr., a general attorney employed by Southern, Wyatt and Robert S. Greer.

Wyatt stated that he is employed by Pennsylvania as ticket agent in its Newark station and that on January 2, 1963 "a process server left with me two summonses and complaints." The summonses named the Pennsylvania and Southern as defendants, and the return of service thereof read: "upon the Pennsylvania Railroad Station, Station Master, Newark, New Jersey." Wyatt stated further that he was neither an employee of Southern nor authorized by Southern as an agent for service of process or authorized to accept service of process on January 2, 1963.

In his affidavit Mitchell states substantially the following:

1. On February 12, 1963 he received a copy of the summons and complaint in the instant case, together with a covering letter, from the Sheriff of Essex County, New Jersey, by registered mail, return receipt requested.

2. The title "Southern Railway System" is a descriptive name and not the name of a corporation or legal entity. It is not subject to suit as a legal entity but is only the name of an association composed of a large number of railroad companies.

3. The Southern Railway Company owns no tracks in New Jersey, carries on no business in New Jersey, and maintains no office for the solicitation of business in New Jersey. It has no bank accounts in New Jersey and issues no bills of lading in New Jersey.

The covering letter from the sheriff referred to in allegation 1 above was attached to Mitchell's affidavit as Exhibit "A." The letter was dated February 8, 1963, addressed to "Southern Railway Company, a/k/a Southern Railway System, a/k/a Southern Railway, 120 Terminal Station, Macon, Georgia," and a carbon copy was mailed return receipt requested to Southern at its address, 15th & K St. N.W., Southern Railway Building, Washington, D.C.

The second paragraph of the February 8, 1963 letter stated "Service of the within Summons and Complaint made in accordance with the rules of our Court."

Greer in his affidavit confirmed the representations contained in the affidavit of Mitchell, and in addition stated that neither he nor any other person "is authorized to enter into any contract on behalf of the Southern Railway Company in the State of New Jersey." Mr. Greer stated further that Southern Railway Company is a corporation incorporated under the laws of Virginia and has its principal office for ...

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