Fairfield v. Louisville & Nashville Railroad, 48 So. 513

Fairfield v. Louisville & Nashville Railroad

48 So. 513 | Miss. | 1909

Fletcher, J.,

delivered the opinion of the court.'

The testimony of plaintiff and her husband, if believed by the jury, tended to show such treatment by the servants of the railroad company as would warrant recovery. To meet this proof, the company offered nothing of an affirmative or positive character. None of the witnesses for the railroad remembered anything of the circumstances of the occurrence. In this state of the proof, the verdict of the jury is little short of remarkable. But the cause of this verdict can be understood when the instructions asked and secured by the railroad company are attentively *891examined. Mr. Fairfield testified that he bought at Pass Christian a coupon book containing ten tickets to New Orleans, good on any train operated over defendant’s line. He and his wife used two of the tickets in going to New Orleans, and when ready to return presented the book, with only two tickets missing, to the gatekeeper, and were refused admission. This book containing the tickets was examined by the ticket agent at New Orleans and pronounced good for the train upon which plaintiff sought to take passage. The tickets contained the usual stipulation that they were void if detached from the book; but there is no hint in the pleadings that the company would rely as a defense upon the point that the tickets were so detached. Indeed, the defendant company pleaded that the seats were all sold and occupied at the time plaintiff applied for admission at the-gate, and therefore admission was properly refused. There was no suggestion in the proof that the tickets were not fastened to the book when presented, and no complaint by either the gatekeeper or the agent on this ground; and yet in this state of the record the jury was charged in instructions Nos. 15 and 16 that the plaintiff could not recover unless she had shown by the evidence that the book contained coupons which had not been detached, and, again, that she could not recover unless she showed that at the time she demanded entrance she presented to the gatekeeper the book which at the time contained coupons which had not been detached from the fastening by which they wore held in the book at the time that it was sold to her husband.

These instructions, even if abstractly and in a proper case correct, have no place in the case made by this record. Their only effect was, after the case had closed, to inject a false issue before the jury, not suggested by the pleadings or the proof. Indeed these instructions are equivalent to a peremptory charge, since the plaintiff, misled by the pleadings, had offered no proof upon an issue which nobody suspected would be important. Then, too, the instructions are not correct, considered as an abstract proposition of law. It is not true that the *892holder of such ticket is to be denied passage merely because the ticket had inadvertently been detached, if both book and ticket are presented, and it can be seen by inspection that they correspond. The condition, “Void if detached,” etc., must be sensibly and reasonably construed, to the end'that no injustice may be done to either party to the contract. What we consider the only just and tenable view on this question is thus expressed by the Wisconsin court: “The words, ‘Not good for ■passage if detached,’ would seem to have been so placed upon the ticket to prevent imposition by the separation of the parts and the use of each as a single-trip ticket; but where such parts of the tickets become separated by such inadvertence, and are then in good faith both presented together and at the same time to the same conductor on the going trip, the purpose of such words would seem to be as fully attained as though the two parts of the ticket had not been previously separated. In other words, the presentation to the conductor of the two parts of the ticket, under the circumstances found, is the same, in legal effect, as though such parts had not been detached when so presented. It is to be remembered that the ticket was the mere evidence of the contract of carriage, and that such evidence consisted of two parts designed for separation. To imply such forfeiture of the ■contract from such mere inadvertent separation, under the circumstances found, when no word, letter, or figure on either part of the ticket was thereby obliterated, and when no perceivable injury to the defendant could result therefrom, would be to destroy a statutory right upon the merest technicality, and in the absence of a clearly expressed stipulation to that effect. Even a strict literalism is not to be so rigidly enforced as to defeat the manifest purpose of a contract under a statute. ‘Whether a different rule should prevail where the passenger wilfully, and against the protest of the conductor, separates the coupons or parts of a ticket, as in some of the cases cited, need not be here considered.” Wightman v. Chicago & Northwestern R. Co., 73 Wis. 169, 40 N. W. 689, 2 L. R. A. 185, 9 Am. St. Rep. 778.

*893We will add that in our judgment instructions Nos. “0” and 11 ought not to have been given; but, since they relate alone to ■ the measure of damages, we would not reverse on this account, since the jury has found that no liability at all existed. They should not, however, be given on another trial.

Reversed and remanded.