169 Ind. 410 | Ind. | 1907
Action by appellee to recover damages on account of an alleged wrongful expulsion by appellant railroad company from its train of cars. Appellee, as complainant below, alleges, inter alia, that the defendant is a corporation organized and existing under the laws of the State of Indiana; that it is a common carrier, and for more than two years last past has been engaged in operating, for the carriage of passengers for hire, a railroad running from Cincinnati, Ohio, into and through the State of Indiana; that part of its said line passes through Clark county, Indiana, to the city of Louisville, Kentucky; that the town of Otisco, in Clark county, in which town the plaintiff had resided for over twenty years, is a station on said line of railroad ; that on November 9; 1904, he purchased from the defendant’s agent in charge of its station office at said town of Otisco a “twenty-trip family ticket,” which defendant kept for sale at said station, paying for such ticket $8; that this ticket had attached thereto twenty coupons, each of which entitled the plaintiff to be carried over defendant’s road between said stations of Otisco and Louisville, upon any of its trains stopping at the former station; thg.t the time for which the ticket was good for use on defend-' ant’s road was limited to four months from November 9, 1904, the date of purchase, making the date of expiration March 9, 1905; that through and by the mistake and negligence of defendant’s selling agent the ticket was made to expire on March 9, 1904, said date being written on the ticket by defendant’s agent at the time of the sale thereof.
The complaint alleges other facts going to show that on December 2, 1904, plaintiff boarded one of defendant’s trains at the town of Otisco for the purpose of being carried thereon as a passenger to the city of Louisville, Kentucky; that when he took passage on said train he had in his possession the ticket in controversy, which still had attached thereto four unused coupons, each of which entitled him to be carried either way between the aforesaid stations;
The defendant unsuccessfully demurred to the complaint for want of facts, and thereafter filed an answer in five paragraphs, the first being the general denial. The second
With some exceptions, the fourth paragraph of the answer is substantially the same as the second. It sets out the contract embraced in the ticket in like manner as does the second, and alleges, among other things, that after the purchase of said ticket on November 9, 1904, by plaintiff, but prior to December 2, 1904, to wit, on November 19 of the latter year, plaintiff violated said contract, and thereby forfeited all of his rights under the ticket to be carried over appellant’s railroad, for the reason that on said November 19, 1904, he sold and transferred, in consideration of $1.60 to him paid, the use of said ticket to Bessie Kirk and her sister, and permitted them to take and have possession of the ticket and use four of the coupons attached thereto for passage over defendant’s railroad from Otisco to the city of Louisville and return; that said Bessie Kirk and her sister were not dependent members of the plaintiff’s family, nor were they in any manner connected with the same; that, after using said ticket, the aforesaid parties returned it to the plaintiff, and that thereafter, upon the occasion alleged in his complaint, he attempted to use it for his passage from Otisco to Louisville; that the ticket so presented by plaintiff to defendant’s conductor, as alleged in the complaint, was the same ticket which the plaintiff had previously sold and transferred to said Bessie Kirk and her sister, as hereinbefore alleged. Plaintiff successfully demurred to the second, third and fourth paragraphs of the answer, and replied to the fifth. As he, in his complaint, only disclosed or exhibited such pi’ovisions of the ticket in question as were favorable or available to him, it was the right or privilege of defendant to set up in its answer any of its provisions or stipulations, and thereby seek to avail itself of such affirmative defense. Under the issues joined between the parties there was a trial by jury and a verdict returned in favor of the plaintiff, assessing his damages at $100. Defendant
The evidence in the record may be said to establish the following facts: Defendant is an incorporated railroad company, engaged as a common carrier in operating the railroad as alleged in the complaint. Plaintiff is a resident of the town of Otisco, in Clark county, Indiana, and is engaged at that place as a retail merchant. This town is a-station situated on defendant’s railroad about twenty-five miles distant from the city of Louisville, Kentucky. „ The regular fare for a single passage between Otisco and Louisville is sixty-nine cents. At defendant’s office in said town it kept for sale what is known as a “twenty-coupon family ticket.” This ticket contained twenty c'oupons, each of which was good for a single passage over defendant’s road, either way, between the aforesaid stations, and was sold and issued for $8, which made the fare or rate for a single trip between Otisco and Louisville forty cents, less than two-thirds of the regular fare. These tickets, in consideration of siich reduced fare, were sold under a special contract, and their use was expressly limited to the purchaser and the dependent members of his family. The ticket in dispute was introduced in evidence at the trial by plaintiff. It was shown that the latter purchased it on November 9, 1904, from defendant’s agent at said station of Otisco. The date of purchase was stamped on the cover thereof. The ticket had attached thereto twenty coupons, each of which was good for passage either way between the stations mentioned. On a paid of the ticket, in a place provided for that pur
“Issued by the Baltimore" & Ohio Southwestern Railroad Company.
Twenty-trip family ticket. Good' for Mr. S. W. Evans. 'Between Louisville and Otisco on or before March 9,1904.
Form L.35. 4028 4 months.
Contract.
Each coupon, when not detached from the contract is good for one passage on any passenger-train of the Baltimore & Ohio Southwestern Railroad Company stopping at stations named on this ticket, for the person named on the reverse side of this cover, or for dependent members of family, under conditions named in contract.
Must be used within the dates named on first page of cover.
O. P. McCarty, General Passenger Agent.
Baltimore and Ohio Southwestern Railroad Company Twenty-trip Family Ticket Contract.
(1) It is hereby expressly understood and contracted by the purchaser of this ticket that it is good for use of person named.hereon, or for dependent members of family, and must be used within four months from date of sale; that a transfer of it for one or more trips involves its forfeiture.
(2) It is good only on such regular passenger-trains as stop at the stations named hereon, and allows trans*417 portation of personal baggage or small parcels of marketing only.
. (3) That this ticket must be presented to the conductor who will detach a coupon for each and every ride, and it will be void after the date specified thereon.
(4) That this ticket is, and shall be, considered the only valid evidence that fare is paid, and in case it is lost or mislaid local rates must be paid to conductors and fares so collected will not be returned, nor will a duplicate free ticket be issued therefor.
Form L.35. O. P. McCarty, General Passenger Agent. ’ ’
On December 2, 1904, plaintiff, desiring to go to Louisville on business, boarded a passenger-train of defendant’s road for that city. He had in his possession at that time the ticket in controversy, which then contained four unused coupons. It appears that he was not acquainted with the conductor in charge of the train. In response to the conductor’s demand for his fare he tendered the ticket in question. On an examination thereof the conductor appears to have contended that the ticket had expired. This plaintiff denied, and pointed to the date of the ticket and claimed that there must be a mistake in the date of expiration, which, as he asserted, he had not before discovered. The date of sale, as it appeared upon the ticket, was dim, and the conductor, as he testified at the trial, was unable “to make it out.” He appears to have made a second examination and again informed plaintiff that the ticket was “an old one” and was not good, and requested him either to pay his fare or leave the train. Plaintiff, in response to this, said: “Put me off,” and refused to pay the required fare. The conductor then stopped the train and directed plaintiff to get off, which he accordingly did, testifying at the trial that he did so because the. conductor ordered him to leave the train or pay his fare. He declined to pay the fare demanded, on the ground -that his ticket was good and he was entitled to be carried thereon. No force or violence whatever appears to have been used by the conductor to eject him, and
The principal question argued by appellant’s counsel, in discussing the alleged erroneous rulings of the court in sustaining the demurrer to the' second and fourth paragraphs of the answer and in refusing to charge the jury as requested by appellant in instruction three, and also as presented by the undisputed facts established by the evidence, is, was appellee, at the timo he was expelled from the train in controversy, legally entitled to be carried as a passenger upon the ticket in question, and can his expulsion under the facts be justified by appellant in this action, oh the ground that appellee, prior to his removal from the train, had violated the contract contained in the ticket, and, therefore, had forfeited his right to be carried as a passenger over appellant’s road upon said ticket? Counsel for appellant in their brief, in discussing the forfeiture branch of the case, say: “We treat the mistake of the agent in dating the ticket, and its obliterated condition at the time it was presented, as beside the question, and argue it from the standpoint of a valid ticket originally, and upon which the dates had been correctly stated. In other words, assuming that this ticket, instead of showing on its face that it expired March 9, 1904, had shown that it would not expire until March 9, 1905, and had been presented by Evans under the circumstances disclosed by the answer and the evidence, was Evans rightfully entitled to be carried to Louisville upon the ticket?” In fact it may be said that the theory of appellant upon this phase of the case, as presented by the second and fourth paragraphs of its answer and by instruction three, as requested but refused, and
Counsel for appellee, however, denies the sufficiency of the paragraphs of the answer, and further contends that the facts relied upon under the evidence as involving the forfeiture are not sufficient, for the reason that a forfeiture is not favored by law. He further argues that appellant cannot justify in this action the expulsion of appellee at the time and upon the occasion in question, because its conductor placed the right to demand that appellee either pay his fare or leave the train, not upon the ground that he had forfeited his ticket because he had violated the contract in the use thereof, as shown, but upon the ground that the ticket was an old one, or had expired, consequently it is asserted that appellant must be held to be estopped from availing itself of the forfeiture of the ticket in this action. He further argues that if the ticket was forfeited because it had been transferred and misused, as shown, then, as it appears that after such usage, but before December 2, 1904, appellant had honored it for appellee’s passage without objection, the alleged forfeiture must thereby be considered as waived.
The question presented and decided in Freidenrich v. Baltimore, etc., R. Co., supra, is quite analogous to the one raised in this appeal by counsel for appellant in respect to the for- . feiture of appellee’s ticket. The action in the case last cited was instituted by appellant, Freidenrich, to recover damages for an alleged wrongful expulsion from the cars of
The case of Eastman v. Maine Cent. Railroad, supra, was an action in assumpsit to recover the price of certain coupons of a mileage ticket. The question of forfeiture of this ticket by the plaintiff was raised and presented in that action, on the ground that he had violated the contract under which the ticket had been sold and issued to him, by allowing a person other than himself to use it for passage over defendant’s road. Under its terms the ticket in question was limited to the use of the purchaser, and provided for a forfeiture in the event it was presented by a person other than the one in whose name it had been issued. After the violation of the contract by the plaintiff, in allowing another person to use his ticket for transportation, it was taken up by the company’s condueter as forfeited, and returned to the company’s general office. The court in that case denied the right of the plaintiff to recover, justifying under the facts the right of the company’s agent to 'take up the ticket. In considering the question of forfeiture, the court in that case, by Blodgett, C. J., said: ‘ ‘ The- plaintiff made the contract voluntarily and understandingly; and the responsibility for its termination rests solely with himself. There is no rule better settled or more just in itself than that the parties who voluntarily and understandingly enter into such contracts must be governed by their terms, and are subject to the legal consequences of their violation. Having intentionally violated the express conditions of his contract, the plaintiff’s mileage book justly became forfeited in accordance with those conditions and for the resulting pecuniary loss to him there is nobody to blame but himself. In such a case the law affords no relief. A party cannot maintain an action founded upon his own dishonesty and fraud.”
Judgment reversed, and cause remanded, with instructions to the lower court to grant appellant a new trial.