75 P. 310 | Cal. | 1904
Lead Opinion
This is an appeal from an order granting the plaintiff's motion for a new trial. The action is for damages on account of being put off from one of defendant's trains.
The evidence shows that the plaintiff went to defendant's ticket office at the foot of Market Street in San Francisco, a little before five o'clock, in November, 1899, being a very short time before the boat left that crosses the bay in connection with the train for Los Angeles. He asked the defendant's ticket-seller for a ticket for the "Owl" train, and was immediately asked if he had a berth in the sleeper. Plaintiff informed the defendant's agent who sold the tickets that he had not, and was then told he would have to get a sleeping-berth across the bay or his ticket would not be good on the "Owl." He, however, requested the ticket and paid for and purchased one which, as far as material here, reads as follows: "Special limited; good for one continuous first-class passage, San Francisco to Los Angeles, 9:26m. Good only by Martinez route by train No. ___." On the ticket in the blank space after No. was stamped the words, "The Owl." This ticket was sold at the same price as a regular first-class ticket. On crossing the bay to connect with the "Owl" train plaintiff went to the Pullman conductor and asked for a berth. He was told that the berths had all been sold, and that his ticket would not be good on that train, as no berths could be procured. He was again told the same thing on the steps of the train before he got aboard. Notwithstanding this, however, he boarded the train and took a seat in the day coach, which was not a sleeper, and ran only as far as Bakersfield. Defendant at the time was running two regular daily trains from San Francisco to Los Angeles, one leaving in the morning at nine *730 o'clock, the other leaving in the evening at half-past five, and, in addition thereto, to accommodate persons desiring to make the trip quickly, it was running a special limited train called the "Owl," which ran at night only, at a special rate, upon a special schedule, with a limited number of Pullman sleepers, containing no accommodations for passengers except those who had berths. This was known to the plaintiff, as, in addition to being informed of the same, he had previously traveled on that train three or four times, between San Francisco and Los Angeles. Upon presenting his ticket to the conductor he was told his ticket was not good on the train unless he had a sleeping-berth, and that he would have to get off at Port Costa, and could there take the next regular Los Angeles train, which would be along in forty minutes, and would reach Los Angeles at one o'clock on the following day, instead of eight o'clock in the morning, that being the schedule time for the "Owl." This the plaintiff refused to do, and said he would return to San Francisco and bring suit against the company for damages, which he did.
The case was tried before a jury, resulting in a verdict for the defendant. The court in granting plaintiff's motion for a new trial said: "The same is granted upon the ground that the evidence does not support the verdict in this: That the notification to the plaintiff by the ticket-seller, when he purchased the railroad ticket in question, that such ticket would not be good upon the `Owl' train unless he secured a berth, cannot and did not control or affect the obligation of the company, as evidenced by the ticket."
The question to be considered on this appeal, therefore, is whether the court below, in granting the new trial, correctly stated the law governing the case. The theory on which the order seems to have been made is, that the ticket is a contract, expressing all of its terms, and that the purchaser is not bound by any rules or regulations of the carrier other than those expressed on the ticket. We do not think such a contention can be maintained. Defendant had a right to run a special limited train for those only who could secure sleeping accommodations, and to make it a condition as to the purchase of the ticket that the passenger should procure a sleeping-berth before it could give him the benefit of the special *731
train. The ticket stated on its face that it was a special limited ticket, good for one continuous first-class passage, "San Francisco to Los Angeles." The evidence shows that the ticket was good for any other train on the date stamped upon it. The words cannot be held to be a contract that the purchaser could ride upon the "Owl," except upon compliance with the regulations of the defendant as to securing a berth. According to the letter of the ticket the plaintiff was entitled to take the "Owl" train at San Francisco instead of at Oakland. Yet he knew when he purchased it that he could not take that train at San Francisco, but must cross by ferry-boat from San Francisco to the Oakland side of the bay and take it there, and that was therefore the contract or agreement, notwithstanding the reading of the ticket to the contrary. "A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful." (Civ. Code, sec.
But a railroad ticket is not a contract expressing all the conditions and limitations usually contained in a written agreement. It is more in the nature of a receipt given by the railroad company as evidence that the passenger has paid his fare for a certain kind of passage on the proper trains of the company, as limited and regulated by its rules. The fact that the words "The Owl" were stamped on the ticket entitled the plaintiff to ride upon that train if he had complied with the conditions of securing a berth thereon, which he failed to do. It is said in Elliott on Railroads (sec. 1593): "According to the generally accepted doctrine, a ticket, in the ordinary form, is a voucher, token, or receipt, rather than a contract, adopted for convenience, to show that the passenger has paid his fare from the place or station named therein as the place of departure *732
to the place or station named therein as the place of destination. . . . A ticket is evidence of a contract to carry and the right to passage, but the contract itself is implied by law, except in so far as it is expressed in the ticket. Upon the theory that it is not itself the written contract, parol evidence has been held admissible to prove the terms of the contract in fact entered into between the company and the passenger, or the representations made by the agent, at the time the ticket was purchased, as to stop-over privileges or the like." In conformity with the foregoing, our code provides: "A common carrier of persons may make rules for the conduct of his business, and may require passengers to conform to them, if they are lawful, public, uniform in their application, and reasonable." (Civ. Code, sec.
The court below erred in holding that the notification to the plaintiff that his ticket in question would not be good upon the "Owl" train unless he secured a sleeping-berth could not control or affect the obligation of the company as evidenced by the ticket. As this appears to be the only ground upon which the motion for a new trial was granted, the order granting the same is reversed.
McFarland, J., Lorigan, J., and Henshaw, J., concurred.
Dissenting Opinion
I dissent. I take it that no proposition is more fully settled than this, that parol evidence cannot be admitted or used to vary or contradict the effect of a written contract. In this state this rule has the express force of statute law. "The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument." (Civ. Code, sec.
The reason first given is, that the ticket in question, notwithstanding its terms, is subject to the rules and regulations of the defendant company contrary thereto. I concede that proof of such regulations or of other explanatory facts, coupled with proof of knowledge thereof by the parties, is competent to help out a contract where it is uncertain, or to supply anything omitted therefrom. It would have been proper, for illustration, to show in the case at hand what was meant by the "Martinez route," and by the "Owl train." For this would explain what would otherwise be an ambiguity in the terms of the contract. But here the effect of the regulation is to contradict the contract, to destroy altogether the undertaking of the defendant therein set forth, except upon *735
a condition not therein expressed, and to require the payment of an additional consideration for an additional accommodation as a condition precedent to the existence of any obligation on the part of the carrier. The proposition that such regulations control, instead of the contract, is certainly a startling one. There is a well-known principle to the effect that a contract must be interpreted according to the law or usage of the place where it is to be performed. (Civ. Code, sec.
The other reason given for the prevailing opinion is, that "a railroad ticket is not a contract expressing all the conditions and limitations usually contained in a written agreement," but "is more in the nature of a receipt given by the railroad company as evidence that the passenger has paid his fare for a certain kind of passage on the proper trains of the company, as limited and regulated by its rules." Of course, railroad tickets do not always express the whole contract. In fact, they seldom do. But this is beside the question. We are not here concerned with some term of the actual agreement that was omitted from the writing, but with a term which was inserted, and which defendant seeks to nullify *736 by proof of a parol contract of a different effect. With singular inconsistency, the majority opinion quotes in its support a passage from Dietrich v. Pennsylvania etc. R.R. Co., 71 Pa. St. 436,1 the very first words whereof are, "So far as they are expressed the terms are binding, of course." I concede that where a railroad ticket is unsigned, and is a mere memorandum expressing, in part, an agreement for the carriage of the passenger, it is proper to supplement it, or even contradict it, by proof of additional parol conditions and stipulations inconsistent with the printed memorandum. Many of the decided cases are thus explainable. But it cannot be successfully contended that the ticket here in question was not a contract, intended to be binding on the parties, so far as it expressed the terms thereof. This is best shown by the contract itself. It was regularly signed by the plaintiff and indorsed by the defendant, and was as follows: —
"Special limited ticket good for one continuous first-class passage, San Francisco to Los Angeles. 9:26 m. Good only by Martinez route, by train No. . . `The Owl' subject to the following contract: In consideration of this ticket being sold at a rate less than the regular first class rate, I, the purchaser, hereby agree that it shall not be good for passage after the date indicated by the agent's punch marks in the margin (Nov. 12, 1899), and that it will be good only for a continuous trip to destination by the proper train and its connecting trains. That it is not transferable and shall be void after the date of expiration. And that failing to accept and comply with this agreement, the conductor will refuse to accept this ticket, and demand the full regulation fare, which I agree to pay. No stop-over privileges will be given on this ticket. Baggage must not be checked hereon to or from intermediate or way stations. Liability for damage limited to $100. Agent will in no case extend time on this ticket. If more than one date be punched, it shall not be received for passage by conductor."
(Signed) "W. AMES."
(Indorsed by stamp) "Southern Pacific Company,
"November 11, 1899."
The defendant must certainly have intended to exact from the plaintiff the execution of this ticket as a contract, and *737 one that would be binding on him for all the conditions expressed therein. The cases involving tickets not signed, or terms not covered by the contract therein expressed, have no application here. It is from such cases alone that the prevailing opinion finds support. If the evidence offered had been of some agreement not contradictory of the agreement expressed in the ticket, it would of course have been admissible, but this cannot be contended. The ticket in question was a clear undertaking on the part of the defendant to carry the plaintiff upon a continuous trip with first-class accommodations on the Owl train from San Francisco to Los Angeles by the Martinez route. No conditions were expressed requiring the purchase of any berth upon the sleeping-car. By the parol evidence introduced the defendant endeavored to prove that, notwithstanding this agreement, there was a contract that the defendant should be under no obligation to carry the plaintiff upon that particular train, unless, in addition to the price of the ticket which he paid, he should succeed in purchasing from another company a berth in a sleeping-car at an additional price. This was making a contract inconsistent with the written contract, and is contrary to all the principles laid down in our codes, and contrary to the rules expressed in the authorities cited in the prevailing opinion itself. I can see no reason why a railroad company is not as much bound by such a contract for the carriage of a passenger as it is by the terms and conditions of an ordinary bill of lading for the carriage of freight. The signature to a ticket is required because the railroad company intends that the passenger shall be bound. It is an unvarying rule that contracts are mutual, and if one party is bound by its terms both must be.
There is no element of hardship in the case which requires any relaxation of the rule. The defendant was entitled to the benefit of the evidence which it introduced, not for the purpose of varying or changing the contract in the least, but for an entirely different purpose. The question of damages was a material one in the case, and it was proper for the defendant to prove that the plaintiff had been informed before he entered upon his journey that he would not be allowed to ride upon that train unless he obtained a sleeping-car *738 berth. If he was thus warned of the consequences he could not claim so much damages as he might well do if he had been taken by surprise and ejected from the train without previous notice. The testimony was therefore admissible in mitigation of damages, and would be of much weight for that purpose, but it should not be used to vary the contract expressed in the ticket.
Beatty, C.J., concurred with Shaw, J.
Rehearing denied.
