William O. Douglas

“ Tyson doctrine, and the rule applied today rests on no other foundation than a completely uncritical adoption of this Court's 1904 'independent judgment.' That judgment held it to be had public policy, indeed, offensive to the Court's 'moral sense,' for a state to provide that an injured passenger who rode on a wholly gratuitous and guest basis could recover damages if a railroad had cautiously stipulated in advance that such a free passenger must assume the risks of railroad negligence. ”

“ The Court of Appeals of Georgia considered it to be the general rule that strictly free pass passengers could not recover for injuries if their passes contained a stipulation requiring the passenger to assume the risk of railroad negligence. But that court went on to hold that the Hepburn Act, by specifically authorizing issuance of passes to railroad employees and their families, had put them in a different category from 'purely gratuitous' passengers. ”

“ In the Lockwood and Stevens cases, where no money was paid for passage, but neither carriage was strictly free, interests of the public in a carefully operated railroad system were expressly held to outweigh sanctity of contracts and all other considerations; in the Adams and Boering cases, sanctity of contracts, particularly contracts made to obtain strictly free transportation, was given greater weight than the public's interest in safe transportation. ”

“ And the present railroad regulatory system is such that payment by railroads for injuries inflicted by them upon passengers is just as certainly borne by the public as though those injured and their dependents were directly supported by governmental institutions.
Whether allowance of damages for negligent death is the best way to meet the problems incident to transportation dangers is beside the point. ”

“ Many courts generally, including this one and Utah's, may have been wrong in thinking that the possibility of having to pay damages for deaths of passengers due to railroad negligence would make railroads more cautious. [9] Perhaps society could take care of injured passengers and their dependents in a less wasteful manner. But so long as Congress leaves the state free to adopt this method of meeting the problem, I think this Court should not handicap the states. Congress could provide a substitute for the state laws; we cannot. ”

“ The pass in the Boering case as well as in the Adams case was 'strictly free.' Adams, the deceased, was a lawyer but not employed by the railroad that gave him the pass. Many believed, as shown by the legislative history of the Hepburn Act, that railroads were using passes to influence public men to favor failroads at the expense of the public good. Consequently, pass givers and pass users of 'strictly free' passes as distinguished from givers and users of employees' passes, were in bad repute. ”

“ Utah law permits recovery against a railroad when its negligence is responsible for a passenger's death, whether that passenger rides on a free pass containing an attempted waiver of liability for negligence or pays his fare in money. ”

“ VIII. Moreover, the subjection of railroad employees while passengers to the hazards of uncompensated injuries is at war with the basic philosophy which has found expression in other industrial and social legislation for many years. Employers' liability acts, compensation acts, social insurance legislation of the federal government and various states, and a host of other legislative policies have been grounded upon the basic premise that care of the accidentally injured should be accepted as a matter of great public concern. ”

“ As the years have gone by, and as I have reflected more and more upon the nature of the judicial process, I have become reconciled to the uncertainty, because I have grown to see it as inevitable. I have grown to see that the process in its highest reaches is not discovery, but creation ”

“ Hence, had the Swift-Tyson doctrine not been repudiated, the Adams rule as applied to persons injured in Utah should have fallen of its own weight had the Utah legislature passed a law authorizing a man's children to recover from a railroad that negligently killed their parents while they were 'free pass' passengers. Utah has a statute broad enough to authorize such recoveries. ”

“ Experience might prove that a rule created by judges should never have been created at all, or that their rule though originally sound, had become wholly unsuited to new physical and social conditions developed by a dynamic society. ”

“ I simply wish to say that I fully agree with them, and I believe that we ought not to enact any such legislation, and should we do so it would, in my judgment, be perpetrating a very great injustice upon those people. The matter of free transportation, as the Senator from Wisconsin (Mr. Spooner) said yesterday, enters partly into the consideration for their employment, and we have no moral right to deprive them of that privilege.' 40 Cong.Rec. ”

“ No act of Congress has entrenched upon the long-existing power of all the states, including Utah, to provide damages for such wrongful deaths as this complaint alleged. If there is here any barrier to recovery based upon federal law, it is grounded in judge-made 'general commercial law' announced by this Court in the year 1904 in Northern Pac. ”

“ Prior to 1906, there grew up a demand by the people that railroads cease discriminating against some shippers in favor of others and cease using free passes as a means to obtain special favors from public officials and administrative agencies. ”

“ That holding simply means that the death was not 'wrongful' under the statute. It does not mean that where there is company negligence Utah would hold that a railroad could barter away the beneficiary's rights.↑ The Court said: '* * * It is true, a distinction has been taken, in some cases, between simple negligence, and great or gross negligence; and it is said, that one who acts gratuitously is liable only for the latter. ”

“ For our society attempts to take care of its aged, unemployed, crippled and disabled, as well as the dependents of those killed by our industrial machine. See President and Directors of Georgetown College v. ”