188 F. 868 | 4th Cir. | 1911
Lead Opinion
Defendant in error, hereinafter called plaintiff, instituted this action against plaintiff in error, hereinafter called defendant, and the Merchants’ & Miners’ Transportation Company, for the recovery of damages alleged to have been sustained by reason of her wrongful expulsion from the car of defendant Baltimore & Ohio Railroad Company. The action was instituted in the corporation court of Newport News, Va., and removed into the Circuit Court of the United States. Plaintiff, in her original declaration, set forth a cause of action sounding in tort. An amended declaration was filed, alleging the same facts as in the original, but averring a breach of contract of carriage. The facts disclosed by the declaration are:
*871 “R’or specification of the grounds of its demurrer, this defendant alleges that the ticket declared upon in the count of plaintiff's amended declaration does not, upon its face, conform to the contract' of carriage set up by the plaintiff. As between the conductor and the passenger, who is the plaintiff here, the ticket declared upon and filed as a part of the declaration is conclusive evidence of the passenger’s right: to ride and the extent of that rigid. The ticket declared npon shows, upon its face, that there was no destination indicated and, therefore, there being no allegation that the conductor used more force than was necessary in ejecting the plaintiff from the Baltimore & Ohio train, the ejection was not wrongful or tortious, ami the plaintiffs action in tort cannot be sustained as matter of law. The face of the ticket not entitling the passenger to ride to any destination on the Baltimore & Ohio Railroad, it was the right and duty of the conductor to eject, her, using no more force than necessary, and the plaintiff cannot sustain an action in tort for the ejection. Any action the plaintiff may have against the defendant must he by suit for damages for the breach of the contract made by the ticket, agent at Newport News, who failed to deliver her a ticket to Parkers-burg.”
It will be convenient to dispose of the question raised by, and argued upon, the demurrer, before discussing the exceptions pointed to the rulings of the lower court during the trial. Defendant’s contention is thus clearly stated in the brief:
“The ticket being invalid upon its face, the ejection was not wrongful; therefore, plaintiff’s declaration sounding in tort for the wrongful ejection cannot be maintained. She has mistaken her form of action which is for breach of the contract of carriage a dually made and for failure to deliver her a true token or ticket conforming to the contract made.”
The court overruled the demurrer, and for this ruling defendant makes its first assignment of error.
Counsel for defendant frankly conceded that, if his proposition that the ticket given to plaintiff by the agent at Newport News was invalid could not be maintained, the demurrer was properly overruled. This invites an examination of the question whether the ticket was so manifestly invalid that it conferred upon plaintiff no right to he treated as a passenger or to b,e carried to Parkersburg. The ticket was properly stamped, showing the station at which it was issued. There could, therefore, be no suggestion that it had come into the possession of plaintiff through any other than a lawful channel. It was not mutilated. The date was the same day upon which it was tendered. It contained unmistakable evidence that it had been recognized by the baggage man at Newport News, and that the plaintiff'had received a check for her baggage — it was “'punched” showing that the officer on the boat had recognized it as valid, and that the gateman at Baltimore had passed plaintiff into defendant’s station upon it. The ticket contained the names of stations over defendant’s road beyond Parkers-burg, as far as Cincinnati. The only respect in which there was any ambiguity, therefore, was the failure to “punch” the station to which plaintiff was entitled to be carried. Her claim that she was entitled to go to Parkersburg was not contradicted by any printed or written words on the ticket. It must have been apparent to any person of reasonable intelligence that the agent had neglected to “punch” the station to which plaintiff had paid her fare. In this respect the case differs from those cited by counsel or found in the reports.
An examination of the decided cases, cited by counsel, discloses
“The plaintiff, before he went aboard the train from which he was ejected, discovered that the agent had made a mistake, and that he had not delivered him a ticket which, on its face, entitled him to return from Quebec to Detroit.”
The plaintiff relied upon the statement of some person in the office of the ticket agent that the conductor would understand the mistake and make it all right. While the learned judge, wilting for a majority of the court, states the rule that the face of the ticket is conclusive evidence to the conductor of the terms of the contract of carriage between the passenger and the company, plaintiff was not permitted to recover because of his contributory negligence, lie said:
“As the conduct of the plaintiff, in attempting to ride on a ticket which he knew did not give him a right to do so was, in our view, negligence in law, ihe fact that ihe conductor was negligent could not affeet the proper standard of care on the part of the passenger.”
Dissenting Opinion
dissented.
In Railroad Co. v. Hill, 105 Va. 730, 54 S. E. 872, 6 L. R. A. (N. S.) 899, plaintiff applied to the defendant’s agent at Clinchport for a ticket to Appalachia. He paid the correct fare, but the agent, by mistake, gave him a ticket to Duffield, an intermediate point. He put the ticket in his vest pocket and boarded the train. The conductor took up the ticket and put a check in plaintiff’s hat, which indicated that he was entitled to ride to Duffield. When the cars reached that station, plaintiff did not leave the train — the conductor demanded that he pay his fare — which plaintiff refused, telling the conductor that he had bought a ticket to Appalachia. He was ejected and sued therefor. The coitrt held that he was not entitled to sue in tort for the ejection, but was entitled to sue for a breach of the contract — the mistake made by the agent in giving him a ticket to Duffield instead of Appalachia. Here there was nothing on the ticket to indicate that a mistake had been made by the agent. Plaintiff simply had a ticket to one station and demanded that the conductor accept his statement — that he had paid for one to another station. The distinction between that case and the one before us is clearly stated in the language used by the court in Frederick v. Marquette, etc., R. R. Co., 37 Mich. 342, 26 Am. Rep. 531, quoted with approval by Mr. Justice Buchanan:
“How. then, is the conductor to ascertain the contract entered into between the jiassenger and the railroad company when a ticket is purchased and presented to him? Practically there are but two ways — one, the evidence afforded, by 1he ticket; the other, the statement of the passenger, contradicted by the ticket.”
Here, the statement by the plaintiff is not contradicted by the ticket— but, in the light of the check to which the ticket refers and which the conductor could, for the asking, have seen, is fully corroborated. In Texas & P. Ry. Co. v. Smith, 38 Tex. Civ. App. 4, 84 S. W. 852, the ticket was lost. It is true that, there the passenger offered to identify her trunk and show that it had been checked to Dallas, the point to
“If, when the passenger makes the assertion that he has paid fare through, he can produce no evidence of it, the conductor must, at his peril, concede what the passenger claims or take all the responsibility of a trespasser if he refuses, etc. * * * But we are all of the opinion that, if the plaintiffs ticket was apparently good, he had a right to refuse to leave the car.”
This case, upon a new trial, was again before the Supreme Court (64 Mich. 631, 31 N. W. 544, 8 Am. St. Rep. 859) upon plaintiff’s appeal. The judgment was again reversed, Sherwood, J., saying:
“When the plaintiff told the conductor, on the train, that he had paid his fare, and stated the amount he had paid to the agent who gave him the ticket he presented, and told him it was good, it was the duty of the conductor to accept the statement of the plaintiff until he found out it was not true, no matter what the ticket contained in words, figures or other marks. All sorts of people travel upon the cars; and the regulation and management of the company’s business and trains which would not protect the educated and uneducated, the wise and the ignorant alike, would be unreasonable indeed,”
Without undertaking to reconcile the two opinions, we think that the language quoted is in accordance with sound reason, and, therefore, good law. In Erie R. R. v. Winter, 143 U. S. 60, 12 Sup. Ct. 356, 36 L. Ed. 71, the controversy grew but of the failure of the first conductor to whom the passenger presented his ticket to give him a “stop over” check at an intermediate station — the agent selling the ticket had informed the passenger that he could stop at such station by informing the conductor that he wished to do so. The conductor, upon being informed that the passenger wished to stop over, said he would “fix him all right” and punched his ticket, returning it to the passenger, who stopped over at the intermediate station and, upon boarding the train to complete his journey to the station for which the ticket called, presented it to the conductor who refused to accept it and demanded fare, which the passenger refused to pay and was ejected from the car. The contention was made that the ticket was the only and conclusive evidence of the contract of carriage. Mr..Justice Ramar said:
“While it may be admitted, as a general rule, "“that the contract between the passenger and the company is made up of the ticket which he pur*875 chases and the rules and regula (ions of the road, yet it does not follow that parol evidence of what was said between the passenger and the ticker, seller from whom ‘he purchased his ticket Is inadmissible, as going to make up the contract of carriage and forming a part of it”-' citing ilufford's .Case, supra.
It is further said:
“Under the circumstances of the case, as testified to by the plaintiff, the conductor of the first train was derelict in his duty in not providing the passenger with a stop-over chock when the latter slated to him that he desired to stt>p off at Olean (as he had a right to do) if such check was necessary to enable the passenger to complete his journey to Salamanca.”
We hold that the ticket, upon its face, afforded sufficient notice to the conductor that a mistake had been made by the agent selling it, to impose upon him the duty to make a reasonable effort to ascertain the truth before resorting to the harsh measure of removing the plaintiff from the car and leaving her, a stranger, in a large city without any care whatever for her safety and welfare. While he may not have so intended, he inflicted upon her, by his action,- intense suffering, humiliation, physical pain, and mental anxiety. We hold that she was rightfully on the car and entitled to pursue her journey.
“When, by the fault of an agent of the company a passenger takes the wrong train or is without a ticket, or (has) one imperfectly or erroneously stamped, or for any similar reason is ejected by the conductor of the train, in pursuance of the rules of the company, it is liable to him as for a tort.”
So, after stating the rule contended for by defendant, it is said:
“The weight of authority in the courts, state and national, however, now is to the effect that the passenger has a right to rely upon the acts and statements of the ticket agent or conductor and that, if expelled from the train when he had acted in good -faith and is without fault:, the carrier will be liable in damages for such expulsion, whether the action is brought, for a breach of the contract or solely for the tort of the conductor; tiiat it is immaterial that? the different acts were by different agents of the carrier; that its liability is the same, notwithstanding, for its own convenience, it has intrusted the management of its trains to different conductors. * * * When a passenger has purchased a ticket from a railroad agent, purporting to entitle him to passage to a particular place, and has undertaken his journey therefor, and there is nothing on the face of the ticket and no prior knowledge or notice of the rules of the company, which would make such a ticket invalid, brought home to the purchaser, he is rightfully a passenger on the train, and the company is liable in an action to recover damages for his ejection.” Moore on. Carriers, 742, 743.
“These eases, as well as the others previously referred to, all proceed upon the broad ground that the passenger was wholly without fault-; that he- had done all that could reasonably be required of him to do; and that the railroad company, by the mistake or carelessness of its agents or conductor was itself at fault. This is the underlying principle oi^all the well considered cases upon this subject. This principle is fair to both parties. It, is sound, reasonable and just.”
In Murdock v. Boston, etc., R. R. Co., 137 Mass. 293, 50 Am. Rep307, it is said:
“The plaintiff had a right to act upon the explanation given to him at the time when he bought his ticket. The mistake was that of the ticket seller, in supposing that the .punched holes signified that the ticket had been used only to Chester, whereas in fact, according to the defendant’s rules for. the instruction and guidance of conductors, they signified that it had been used to Pittsfield, a station farther on. The offer of the conductor to give a receipt to the plaintiff for the additional fare which he demanded, stating the circumstances under which it was paid, so that the plaintiff might get back the money, if it should be. found that his account bf the purchase of the ticket is true, though showing good faith on the part of the conductor did not have the 'effect to make it the legal duty of the plaintiff to pay the additional fare.”
The action was forthe tort in the ejection of plaintiff from the car.
It is contended that, whatever may be the rule in other courts, state or federal, the Supreme Court of Virginia, the state in which the contract was made, has held that, in such cases, the passenger’s cause of action is for breach of the contract and not in tort; that this court should be governed by this decision. In the view which we take of this record the case is distinguished from Hill’s Case, supra, and that, therefore, no conflict between our conclusion and the conclusion of the court in that case is presented. We are further of the opinion that-the rule of comity invoked and conceded does not apply.
“Wbat constitutes a contract of carriage is not a question of local law upon wbicb the decision of a state court must control. It is- a matter of general law upon which this court will exercise its own* judgment.” Chicago v. Robbins, 67 U. S. 418, 17 L. Ed. 298.
No question is presented here respecting the validity of the contract or its construction — it'is conceded that defendant entered into a-valid' contract to carry plaintiff from Newport News, Va., to Parkersburg, W. Va. The sole'-question is whether, upon failure of' defendant’s agent to deliver to the plaintiff, as was his duty, a proper token..or. evidence of such contract, the plaintiff for the injury which- 'resulted
, entitle the passenger to go to the station claimed by him, and upon his refusal to pay the fare was ejected from the car, he could not sue in tort. We entertain for the opinion of the Supreme Court of Virginia profound respect, and would hesitate to depart from a conclusion reached by that learned and careful court, upon the same or essentially similar facts as those presented to us. In the decision of this case we do not find it necessary to do so. However, in the light of the conflicting conclusions of courts of eminent respectability and learning treating the ticket as void or a “ticket to nowhere,” we incline, very decidedly, to concur with those courts which hold that the company is liable for a breach of duty resulting in injury to a passenger by reason of the mistake or negligence of either of its agents with whom the passenger is required to deal in respect to-the transaction in which the several agents are concerned.
Upon an inspection of the entire record, with the aid of the enlightening arguments and briefs of counsel, we do not find any error entitling defendant to a new trial. The Merchants’ & Miners’ Transportation Company was eliminated from the record in the court below. The judgment must be affirmed,
