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Glaser v. Pennsylvania Railroad Co.

Decided: December 9, 1963.

JESSIE GLASER, PLAINTIFF,
v.
THE PENNSYLVANIA RAILROAD COMPANY, A CORPORATION, ALSO KNOWN AS THE PENNSYLVANIA RAILROAD, ATLANTIC COAST LINE RAILROAD COMPANY, A CORPORATION, AND RICHMOND, FREDERICKSBURG & POTOMAC RAILROAD COMPANY, A CORPORATION, DEFENDANTS



Consodine, J.c.c. (temporarily assigned).

Consodine

Jessie Glaser purchased from the Pennsylvania Railroad Company (Penn) a round-trip ticket for transportation from Newark, New Jersey, to Orlando, Florida, on a through train over the trackage of (1) Penn, (2) Richmond, Fredericksburg and Potomac Railroad (R.F. & P.), and (3) Atlantic Coast Line Railroad (Atlantic). For her return she procured a reserved car seat at the office of Atlantic in Florida. She sues for injuries sustained while on the trackage of R.F. & P. Her treatment was undertaken in Newark.

Plaintiff now sues the three railroads in this State. Service was made on Penn by serving its passenger agent at Newark, and on the other defendants (1) by leaving a copy of the summons and complaint with the passenger agent of Penn in Newark, and (2) by mailing a copy of the summons and

complaint with a covering letter, registered mail, return receipt requested, addressed to each of these defendants. Plaintiff premises the hand-service on the allegation that the two other defendants were doing business in this State and that Penn was their agent. She predicates mail service on R.R. 4:4-4(d), particularly the latter portion thereof which was added by the amendment of June 27, 1958.

There are three motions before the court. Penn seeks summary judgment as a matter of law, pursuant to R.R. 4:58. R.F. & P. seeks an order dismissing the action or, in lieu thereof, quashing the summons and return of service of summons on the grounds of lack of jurisdiction over its person, insufficiency of process, insufficiency of service of process, and the application of the rule of forum non conveniens. Atlantic moves to quash service on the jurisdictional ground that it does no business in this State, for dismissal on the ground of forum non conveniens , and for summary judgment on the ground that the accident did not occur on its lines.

The situs of the accident is admitted by R.F. & P. and denied by the other two defendants. Additionally, plaintiff, in her complaint, places the situs of the accident on the trackage of R.F. & P.

A discussion of the reason underlying the sale of a ticket for travel on several roads before arrival at the passenger's designation is not inappropriate 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. (Scholnick v. National Airlines , 219 F.2d 115 (6 Cir. 1955), applies to the lease type of arrangement and not to the instant case.) 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 clientele. 49 U.S.C.A. §§ 1 to 1542. This legislation followed the enactment of the so-called "Granger Laws" in the Middle West, the famous "Granger Cases" headed by Munn v. Illinois , 94 U.S. 113, 24 L. Ed. 77 (1877), and the depressions of 1873 and 1885 which terminated the local ownership of railroads

and saw the beginnings of great interstate systems out of their bankruptcies. Presently it is common knowledge that mergers of even these great interstate railroad systems have been encouraged in order to avoid a breakdown in our nationwide system that can be chaotic in times of peace and would be disastrous, if not ruinous, in times of war.

The powers of the Interstate Commerce Commission (I.C.C.) are largely defined in the Transportation 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, 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 envisioned 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. 264, 37 S. Ct. 280, 61 L. Ed. 710 (1917). It is sold under a joint tariff agreed to by the carriers concerned and filed by them with the I.C.C. This tariff provides 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 rendered, binding alike on the carrier and its patron. Louisville & N.R. Co. v. Chatters , 279 U.S. 320, 49 S. Ct. 329, 73 L. Ed. 711 (1929).

It should also be pointed out that the record is destitute of proof that any of the defendants sought plaintiff's business or that any of them received compensation for selling the through or coupon ticket for use beyond its rail limit. It is even destitute of proof of general solicitation. The ticket was apparently

sought and purchased by plaintiff. There were other available modes of transportation to plaintiff, viz. , bus, airline. 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.

PENNSYLVANIA RAILROAD COMPANY

Penn argues that its responsibility to plaintiff did not extend beyond its own lines, i.e. , south of Washington. It relies on decisions of the United States Supreme Court. It is necessary to consider only one -- Louisville & N.R. Co. v. Chatters, supra. There the court held that a railroad was under no duty, either by common law or statute, to transport or assume any responsibility for the transportation of a passenger beyond its own line.

Plaintiff briefs and argues that the words of the legend on the ticket ("Subject to tariffs, selling carrier is agent only -- not responsible beyond its line except as law imposes liability for baggage. Non-transferable") are used by Penn to exculpate itself from liability. She does not differentiate between an accident on Penn trackage and an accident on the second of three roads (Penn being the first) involved in the interstate movement between New Jersey and Florida. As to the former, the argument would be valid, see Horelick v. Pennsylvania R. Co. , 13 N.J. 349, 357 (1953), but the interstate commerce field has been pre-empted by the Congress and legislation rising therefrom 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 U.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(1); 5(2), 6

section 6(1) requires the filing of tariffs over "through routes" showing joint or separately established rates. Under § 6(7) a railroad cannot lawfully provide transportation service for which it has not filed a tariff and it must provide service for all who present themselves to the extent of filed tariffs.

There is a specific provision in the I.C.A. for liability on the part of the initial and delivering carriers (49 U.S.C. , § 20) as to shipments of goods and baggage. (As to ticket language here, see supra; and earlier, see Louisville & N.R. Co. v. Chatters, supra , 279 U.S. , at p. 330, 49 S. Ct. , at p. 332, 73 L. Ed. 711). Plaintiff asks the court to consider the failure of the Congress to legislate similarly as to passenger transportation as an oversight, with the result that a trial court of a state by erroneous interpretation would amend nunc pro tunc an Act of Congress. It is obvious why there is the differentiation in the legislative enactment concerning goods and ...


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