Illinois Central Railroad v. Gortikov

45 So. 363 | Miss. | 1907

Calhoun, J".,

delivered the opinion of the court.

This is an action for damages for being forcibly ejected from a railroad train. It is absolutely certain that Mr. Gortikov bought, paid for, and received a round-trip ticket at Tucson, Ariz., good from that place to Chicago, 111., and return, over the route on which he was ejected. On that ticket and over that route he went without question from Tucson to Chicago, and was on his return; and it is also certain that, pursuant to the directions of his ticket, he identified himself to the agent at Chicago and returned on that same ticket to and south of Memphis, Tenn., and was ejected at Grenada, Miss. The cause of his being put off, according to his testimony, was that the conductor 'said it was a “bogus ticket,” claiming that the plaintiff had purchased it from a scalper, because the original ticket had been issued to a female. Whether the ticket was in fact, or not, when bought, punched in the wrong place, so as to show that it was issued to a female, is in-our view wholly immaterial. That was a matter for the convenience 'of the railroad company, and no passenger should be held to be bound by the mistakes of the agent in using his punch. It will be noted that, in the description of the passenger made by the agent at Tucson, the appellee, plaintiff below, is perfectly described, even to the fact of his having a mustache.

It is also absolutely certain that the ticket, according to the actual contract made at its purchase, had not expired by several days at the time of the expulsion from the train. This is shown by the appellee’s testimony, and by the agent who sold him the ticket, and on the face of the ticket, as will appear hereinafter, and, if the agent made a mistake in punching the passenger should not be held bound. But, according to the testimony for the plaintiff below, no other point was made by the conductor in the colloquy between him and the appellee except that it was issued to a female, and he refused to listen to any explanation or any proofs of identification from the passenger, and there was evidence that the plaintiff below was prepared to make explanation showing his identity, and would not be listened to, that he had about him evidence which would satisfy any reasonable man that he himself was the original purchaser of the ticket and the identical man for whom it was intended. The conductor did not even call upon Gortikov for any explanation, and would not hear it when it was offered. There was also evidence that he was forcibly put off the train, the conductor and brakeman taking hold of him and making him leave the car, and that at the door the conductor told the marshal of Grenada he wanted him to take the passenger out of the ear, and the marshal told him that it was not his business and declined to do so. According to the testimony of the plaintiff there was no talk from the conductor on the subject of an erasure or change in the name until the trial of the cause. However, we have seen the identical ticket, sent to us by consent, and it is perfectly manifest that there never was any erasure. This ticket shows that it was bought October 21, 1904, and that the return limit was punched so as to show December 14, although that very ticket provides, as-all such did, that it is good for ninety days from its date, to be not later than December 31, 1904. This is conclusive of the contract, regardless of the mistake which the agent says he made in punching the ticket, and was a matter for explanation, to say the least of it, if the conductor had made the point or been willing to accept explanation. In any case it is the duty of a conductor, when doubt arises as to a ticket, whether a general ticket or a special touring ticket with reduced rates, to listen to and accept any reasonable explanation offered, or take tbe chances. Railroad Co. v. Harper, 83 Miss., 560, 35 South., 764; Railroad Co. v. Holmes, 75 Miss., 371, 23 South, 187; Railroad Co. v. Riley, 68 Miss., 765, 9 South, 443, 13 L. R. A., 38, 24 Am. St. Rep., 309; Railroad Co. v. Drummond, 73 Miss., 813, 20 South., 7 — cited by counsel for appellee. This court is in line with those cases holding that a passenger is not required to see that the selling agent of the ticket made the proper punch marks. The fact that the passenger did not do so does not destroy the validity of the contract. Railroad Co. v. Holmes, 75 Miss., 371, 23 South, 187.

In the case at bar it was clearly the conductor’s duty to accept explanation, regardless of the punch marks. But, as we have said, the evidence on the part of the plaintiff is that the conductor made no such objection to the ticket, but put his refusal explicitly on the ground that the ticket had been issued to a female, and was a “bogus ticket.” Looking to all that appears on this ticket, the expulsion was unnecessary, and from the circumstances shown on the part of the plaintiff it is our opinion that they warranted the recovery of both actual and exemplary damages. Examining the whole ticket, it is clear that the contract was not to expire until December 31, and, if the punch mark contradicted this, it should not have been considered by the conductor, because the printed contract should be taken most strongly against the railroad company which issued it.

It is useless to comment on the provision of the ticket, under the head of “Caution,” to the effect that, in cases of do.ubt- between the passenger and the conductor, the passenger should pay the rate which the conductor demanded, and get a receipt from him, and report to the general office, and then “the same will receive prompt attention.” It is simply advice, and no part of the ten provisions in the ticket. It is a suggestion to the passenger that he could pay the fare, and, if he did it, the general office, on his report, would give it prompt attention, without even specifying that the amount in cash he had paid would be refunded. That this is not a part of the contract is plain. Hutchinson on Carriers, p. 666, § 580, and the authorities there cited, referred to by counsel. Even if a part of the contract, it would be unreasonable and void, as held in the cases cited in the notes to Cherry v. C. & A. R. R. Co., 109 Am. St. Rep., 830; Railroad Co. v. Baker, 7 L. R. A. (n. s.), 103, and O’Rourke v. Citizens’ Street Ry. Co., 76 Am. St. Rep., 639, referred to by counsel. The circumstances developed by the evidence for the plaintiff below in this case and believed by the jury to make it a willful wrong in the conductor to eject without listening to explanation. Illinois Cent. R. Co. v. Harper, 83 Miss., 570; 35 South, 764, 64 L. R. A., 283, 102 Am. St. Rep., 469.

Taking the instructions as a whole, we find nothing authorizing this court to reverse.

Affirmed.