Gulf S.I.R. Co. v. Sullivan , 155 Miss. 1 ( 1928 )

ON SUGGESTION OF ERROR. The appellee has filed a suggestion of error, the only question with merit therein being that we erred in not remanding the case for trial on the third count of the declaration. That count alleged, among other things, that some time after his injury the appellant gave the appellee a free pass over its railroad and that of the Illinois Central Railroad Company to Chicago, Ill., with a request that he travel thereon to Chicago, and report to the hospital maintained by the appellant in the city of Chicago for medical treatment; that he boarded one of appellant's trains at Magee, Miss., and traveled thereon to Jackson, where the appellant connects with the Illinois Central Railroad. While on the train he gave the pass to the appellant's conductor, who was in charge of the train, "whereupon the said conductor ridiculed, abused, and cursed plaintiff, calling him a damn, ignorant fool, and told him that he could not ride on that train on that pass," but permitted him to do so.

The pass contains the following stipulation, signed by the appellant: "A person accepting and using this pass, in consideration of receiving the same, agrees that the I.C. Railroad Company, the Yazoo Mississippi Valley Railroad Company and the Gulf Ship Island Railroad Company, or either of them, shall not be liable under any circumstances, whether of negligence of its or their agents or others, for any injuries to the person or for any loss or damage to the property of the individual using this pass, and that as such individual each such company shall not be considered as a common carrier or liable as such."

Two questions are here presented: (1) Is the stipulation in the pass valid? and, if it is, (2) is the conduct of the appellant's conductor, here complained of, included therein? If the first of these questions is ruled by Y. M.V.R. Co. v. Grant, 86 Miss. 565, 38 So. 502, 109 Am. St. Rep. 723, 4 Ann. Cas. 556, it must be answered in the negative; but, if by Charleston Western Carolina R. Co. v. Thompson, 234 U.S. 576, 34 S.Ct. 964, 58 L.Ed. 1476, and authorities there cited, it must be answered in the affirmative. We are not called on to decide which rule here applies, for it is clear that, if the latter applies, the wrong complained of is not included within the stipulation, which must be held to apply only to cases of ordinary negligence, and not to willful or wanton acts. Northern Pac. R. Co. v. Adams,192 U.S. 440, 24 S.Ct. 408, 48 L.Ed. 513; I.C.R. Co. v. Read, 37 Ill. 484, 87 Am. Dec. 260; Missouri Kansas Texas R. Co. v. Zuber,76 Okla. 146, 184 P. 452, 7 A.L.R. 840; 10 C.J. 718.

That the appellant was an employee of the appellee, if such, in fact, he was, when the injury complained of occurred, is of no consequence, for he was not then being transported as an incident to, and part of, that employment, as was the case in Great Southern Lbr. Co. v. Hamilton, 137 Miss. 55, 101 So. 787. He was a passenger, and entitled to the rights of such, except in so far as the stipulations in his pass interfered therewith.

The suggestion of error will be sustained to the extent that the former final judgment herein rendered will be modified to the extent that the case will be remanded for trial on the cause of action hereinbefore set out and included in the third count of the declaration.

Suggestion of error sustained in part.