34 Ga. App. 761 | Ga. Ct. App. | 1926
(After stating the foregoing facts.) In the brief for the plaintiff it is stated that “In view of the fact that the Gourt directed the verdict on the theory that the deceased was not a passenger for hire of upon a valuable consideration, and his release of defendant from liability barred a recovery by plaintiff, and further that plaintiff does not insist that there was any evidence of gross and wilful negligence, the question before this court for decision is simply this: Was the deceased a passenger for hire or upon a valuable consideration ? If he was, the release in the pass was void, and the plaintiff would be entitled to recover.” In the brief of defendant in error it is insisted that “the case of Lanier v. Bugg, 32 Ga. App. 294 (123 S. E. 145), completely controls . . the case at bar in every single phase.” In that case the deceased, for the value of whose life the suit was brought, came to his death in the same catastrophe as did Brooks, the husband of the plaintiff in this case, and in that case this court held that there could be no recovery “unless the injury was inflicted wilfully and wantonly.”
In the brief for the plaintiff is the following: “The status of the deceased and the character of his transportation is proven by the evidence, as we contend, without conflict, to have been that of a passenger for hire or upon a valuable consideration. He was employed by the Western Union Telegraph Company as a lineman. He was assigned to the line of the telegraph company that paralleled the defendant’s railroad between certain points on the railway line. The railway company owned the lines, poles, etc., and leased them to the telegraph company. The railroad company and the telegraph company entered into a contract with regard to the lease and operation of the telegraph line. The telegraph company agreed to maintain the line along the entire route of defendant’s railroad; to furnish a line and instruments 'for its use, and also for the furnishing of telegraph service to the railroad by the telegraph company over all of the lines of the telegraph company.’ In return the railroad company agreed to transport free of charge over the railroads covered by this agreement all persons in the employ of the telegraph company when traveling on business of the telegraph company. It will thus be seen that a vital, part of the consideration for the lease was the furnishing of telegraphic service to the railroad and the maintenance of the lines. It being the duty of the telegraph company to maintain the lines, a part of the consideration beneficial to the railroad in paying for this service was to transport the linemen of the telegraph company. Under this agreement an annual pass was issued to Brooks by the railroad company, at the request 'of the telegraph company. It states it was issued ‘ account lineman, Western Union Telegraph Company/ clearly meaning' that it was charged to the telegraph company under the contract. The pass further was good between all stations. This pass is not similar to the annual pass issued by the railroad to its employees, but more in the nature of a paid-up mileage ticket, in that it was issued by virtue of the contract between the two companies and- paid for by the service rendered by the telegraph company to the railroad. The railroad received no actual money for the use of its property, nor paid out anything for the telegraph service it received. The telegraph company paid the
Thus it will be seen that plaintiff based her right to recover upon the idea that the transportation furnished the deceased was paid for; that the consideration therefor was certain services which the telegraph company rendered the railroad company. But, under the contract, what was the obligation of the railroad company to the telegraph company ? The contract expressly provided that transportation was to be furnished the employees of the telegraph company “when traveling on the business of the company." (Italics ours.) This is all that the railroad company obligated itself to do. Anything beyond that would be without consideration, a mere gratuity. Even should we concede- that when the pass was being used on business for the telegraph company, it was not a gratuity, but was for a consideration when so used, this would apply only when the pass was being used on business for the telegraph company, and not when being used by the person'to whom it was issued when traveling for his own pleasure or on his individual business, and on a trip in no way connected with the telegraph company. On such a trip he would be nothing more than the guest of the company. The transportation would be furnished him without compensation, a gratuity, and the pass would be in reality and in common parlance “a free pass.” Indeed, this question seems to have been absolutely settled by the appellate courts of this State and by the United States Supreme Court. The pass in this case was an interstate pass, the terms of which are quoted in the foregoing statement of facts. The telegraph lineman, Brooks, was not required to sign the pass whereby the railroad company was exonerated from liability to him, but signed it freely and voluntarily, and is bound by its provisions. In Charleston & Western Carolina Ry. Co. v. Thompson, 234 U. S. 576 (34 Sup. Ct. 964, 58 L. ed. 1476), the headnotes are as follows: “Under the free pass provision of the Hepburn act of June 29, 1906, a free pass issued by a railroad company between interstate points to a member of the
Judgment affir.med.
