161 Ind. 153 | Ind. | 1903
Lead Opinion
— Action by appellee against appellant to recover damages for an unlawful expulsion from one of its street cars. A trial by jury resulted in appellee being
The following are facts material to the point in issue: Appellant is a corporation engaged as a common carrier in operating a street railway in the city of Indianapolis. By the provisions and terms of the franchise granted to it by said city, and under which it is operating its railroad therein, a passenger on the payment of the required fare is entitled to demand and receive, without extra charge, from the conductor of the car upon which he first takes passage, a transfer ticket, which entitles him to be carried as a passenger over the line to which he is transferred. Appellant’s grant or franchise, which it obtained from the city of Indianapolis, under its terms and conditions not only imposes upon it the duty of granting to the passenger the privilege of transfer upon his request, but provides particularly that the line to which the passenger is transferred “shall be plainly indicated on said transfer ticket.” It is shown that appellee on the evening of September 23, 1899, took passage upon one of appellant’s cars running on and over its College avenue line, and upon paying his fare he requested the conductor in óharge of said car to give him a transfer ticket to the Virginia avenue line, his destination being a point on the latter line. Upon his taking passage on one of the cars running on and over the Virginia avenue line the conductor in charge of said car demanded fare of appellee, and the latter tendered to said conductor the transfer ticket which he had received from the College avenue conductor. Upon the tender of this ticket it appears that a controversy arose between appellee and the conductor on the Virginia avenue car in regard to said ticket, the conductor claiming that the ticket was a South East street transfer instead of a Virginia
Appellee, as the facts show, became a passenger upon one of appellant’s street cars, and paid the required fare, and thereupon requested, as he had a right to do, to be furnished a transfer ticket over the Virginia avenue line of appellant’s road, in order that he might be carried to the end of his journey. Upon the payment of his fare and making the request which he did, the duty then rested upon appellant, under the provisions and conditions of the franchise which it had obtained from the city of Indianapolis, to furnish or provide appellee, as such passenger, with a transfer ticket plainly indicating thereby the line of its railway to which he, in accordance with his request, had been transferred, and over which, under the circumstances, he had the right to be carried. It is possibly true, as counsel for. appellant seemingly insist, that appellee had ample time and opportunity to inspect his transfer ticket, and thereby ascertain whether the conductor of the College avenue car had properly performed his duty by corréctly indicating the line of transfer.
The extent to which these cases support the doctrine in question and sustain appellee’s right to a recovery in this case is that where the passenger is aboard the cars of the carrier without the proper evidence or token of his right of passage, which is clue to the mistake or fault of the carrier’s agent, and not to the fault of the passenger, then, under such circumstances, the carrier’s agent in charge of the train must heed or accept the reasonable explanations of the passenger in regard to the ticket in dispute.
An examination of the cases pro and con upon the question herein involved convinces us that the weight of authority and the better reason are against the contention of counsel for appellant, and that the right of the appellee to recover under the facts in this appeal is well supported by the decisions of our own, as well as other courts.
We deem it useful specially to refer to some of the many decisions herein above cited, several of which are virtually identical with the case before us, for consideration. In the appeal of the Pennsylvania Co. v. Bray, supra, it appears that the passenger presented to the conductor of the railroad company a going coupon of a round-trip ticket from Mooresville to Indianapolis as his fare from Indianapolis to Mooresville. This coupon the conductor refused to receive upon the ground that it was the wrong coupon. It is disclosed that this was the first knowledge that the passenger had that the coupon which he presented was the going instead of the returning part of the ticket, and he explained to the conductor that he had purchased the ticket a few days previous from the company, and
In 'the appeal of Lawshe v. Tacoma R., etc., Co., supra, recently decided by the supreme court of Washington, the facts are virtually identical with those in the case at bar. It is disclosed that the railway company in that case was a common carrier, engaged in operating a street car line in the city of Tacoma, and issued transfer tickets to passengers, good for passage over the various connecting lines operated by the said company. The plaintiff in that case became a passenger on a street car running over the Pacific avenue line, and requested a transfer to the I street line. By mistake it appears the conductor gave him a transfer ticket to a line other than the I street line. Mot observing the mistake, the plaintiff took passage on a car running over the I street line, and presented the ticket to the conductor in charge thereof, who refused to accept it, and demanded ■ fare which the plaintiff declined to pay, and consequently he was ejected from the car. The court held, under the facts, that his expulsion was wrongful, for which he was entitled to a recovery. In the course of the opinion the court said: “It seems to us that in accordance with the general principles of law the appellant should recover. It is too plain for argument that only the right to sue for the recovery of the fare or a portion of the fare received by the company will be totally inadequate, and, through the plain, everyday law governing agency, the company is re
In the ease of O’Rourke v. Street R. Co., 103 Tenn. 124, 52 S. W. 872, 76 Am. St. 639, 46 L. R. A. 614, the plaintiff with his wife and three children took passage on a Beale and Lane avenue street car of the defendant’s road in the city of Memphis. Upon paying the proper fares, he requested to be furnished by the conductor in charge of the car with the requisite number of transfer tickets to a north-bound Main street car of the same company. The conductor punched the tickets in such a manner as to indicate that the time of their issue was 1:40 p. m., when in fact they were issued nearly an hour later, and’ were fully within the time limit. The conductor in charge
In the case of Laird v. Pittsburg Traction Co., 166 Pa. St. 47, 31 Atl. 51, a conductor of the defendant’s street ear issued a transfer ticket to the plaintiff. This ticket eon
In the case of Hufford v. Grand Rapids, etc., R. Co., 64 Mich. 631, 31 N. W. 544, 8 Am. St. 859, the agent of the railroad company sold and delivered to the plaintiff as a good ticket one which had been canceled. The conductor declined to receive it, and the plaintiff, in order to prevent his expulsion from the car, paid the fare which the conductor exacted. He instituted an action for damages, and the supreme court of Michigan, in the appeal cited, sustained his right to recover. The case appears to have been twice appealed to the supreme court, the first decision being reported in 53 Mich. 118, 18 N. W. 580, entitled Hufford v. Grand Rapids, etc., R. Co., and the decision in that appeal is cited by counsel for appellant in the case at bar in support of their contention. It is true that the court in the first appeal affirmed that, as between the passenger and the conductor, the ticket must be regarded as the conclusive evidence of the extent of the passenger’s right to travel, but in the second appeal — 64 Mich. 631, 31 N. W. 544, 8 Am. St. 859' — the court seems to have modified its holding in the first appeal, 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
In Ellsworth v. Chicago, etc., R. Co., 95 Iowa 98, 63 N. W. 584, 29 L. R. A. 173, the ticket agent of the defendant sold the plaintiff a ticket which by mistake of the agent was antedated three days from the time of its purchase. The plaintiff presented it for passage on the iday it was actually issued, but the conductor in charge of the train refused to accept it because on its face it disclosed that the time for using it had expired.. The plaintiff refused to pay the fare, and was ejected. The court, under the facts, held that the railroad company was liable for damages by reason of the unlawful expulsion of the plaintiff.
In Evansville, etc., R. Co. v. Cates, 14 Ind. App. 172, the passenger requested of the railroad company’s agent at Evansville a ticket from the latter city to the city of Terre Haute, and paid therefor the regular price of the fare. By mistake the agent furnished and.'delivered, to the passenger a ticket good only from Evansville to Vincennes, a station on the carrier’s road between Evansville and Terre Haute. The passenger, without any fault on his part, believing the ticket so furnished and delivered to him by the agent, under his request, was in compliance therewith, took passage on a train running from Evansville to Terre Haute, and surrendered the ticket in question to the conductor in charge of the train. After the train had passed beyond Vincennes, the conductor demanded of him additional fare on the ground that the ticket which he had surrendered was only good from Evansville to Vincennes'. The passenger explained the situation in regard to the ticket to the conductor, informing him that the ticket which he had surrendered to him was one good from Evansville to Terre Haute, which he had purchased and paid for, and that he had no money with which to pay additional or extra fare
In Wood, Railroads (2d ed.), §319, the author says: “Where the passenger asks and pays for a certain ticket, and the station agent by mistake gives him a different one, which does not entitle him to the passage desired, the conductor has no right to expel him, and the company is liable in damages if he is expelled. The passenger has a right to rely on the agent to give him the right ticket. There are authorities which hold the other way, but it seems that their views are indefensible.”
In 25 Am. & Eng:. Ency. Law, 1016, the authors of this work, after stating that some of the authorities assert that a railroad conductor can not be expected to listen to the passenger’s explanation in regard to the ticket in dispute; that the passenger should either pay the fare demanded by the conductor or leave the train, and then sue the company
In Hot Springs R. Co. v. Deloney, 65 Ark. 177, 45 S. W. 351, 67 Am. St. 913, the passenger presented to the conductor of the defendant’s train a ticket which he had purchased for passage to a certain point on the railroad. This ticket by mistake or fault of the ticket agent had not been properly made out so as to show that the passenger was entitled to passage to the place to which he had paid his fare. On his refusal to pay the additional fare demanded, he was ejected. It was held in that case that the expulsion was wrongful, and the company liable therefor in damages. The appellant in that appeal insisted that the conductor could only rely upon the face of the ticket to determine his duty in the premises, and was not required to heed the explanations of the passenger to the effect that the ticket agent had made a mistake in issuing the ticket. This contention was opposed by counsel for appellee. The court after reviewing the authorities pro and con said: “There is this much to be said, however, and that is that the tendency of more recent decisions is towards at least a conservative view of the principle contended for by appellee’s counsel; and we adopt that in this case, to wit, that, notwithstanding the conductor has only carried out the company’s núes and regulations, and these are reasonable, and he therefore may be exonerated from blame personally, yet, as the company, through its ticket agent acting for it, was guilty of doing that which produced all the injury .the plaintiff may have suffered from being put off the train, it is liable for such, and can not shield itself behind the
Ordinarily, as the authorities affirm, a railroad ticket for passage is regarded as a mere token, voucher, or receipt adopted by the carrier for its convenience to show that the passenger to whom it has been issued or sold has paid the required fare for his right to be carried from one point on the railroad to another. It is merely evidence of such right and can not be said, in its ordinary form, as such a token or voucher, to constitute the sole contract for passage between the carrier and the passenger. But where a railroad ticket, in addition to the ordinary and usual form, contains some reasonable stipulation, limitation, or condition to which the purchaser has assented, then it may be said as to such stipulation, limitation, or condition, it constitutes a binding contract between the parties. 25 Am. & Eng. Ency. Law, 1074, 1075, and authorities there cited; Elliott, Railroads, §1593.
There can be no sound reason advanced for holding that such a voucher or token as is a passage ticket in its ordinary form must be regarded or considered as the exclusive evidence of the passenger’s right to be carried, and that the agent of the carrier may, over the reasonable explanations or statements of the passenger in regard to his right to he carried thereon, expel him from the ■ car on which he has taken passage unless he pays the extra fare demanded, without subjecting the carrier to damages by reason of such expulsion, where the latter, under the circumstances, as between the passenger and the carrier company, is shown to have been wrongful. When the case at bar, under the facts, is tested by the principles affirmed by the
The fact that the wrong of which appellee complains may be said to be due to the combined faults of two of appellant’s conductors or agents exerts no material influence over his right to recover, for, under the circumstances, appellant must be presumed to have been present and acting at the time through the agency of the conductor who issued the transfer ticket, and through the agency of the other who, over the explanations of appellee in regard to the issue of the ticket, refused to accept it, and thereupon expelled him from the car upon which, as shown, he was entitled to be carried. The mistake which the first conductor made in failing plainly to point out or indicate upon the transfer ticket the line to which appellee had requested to be transferred, in the eye of the law, must be considered as the mistake or fault of the appellant. And the latter must be treated or regarded as a wrongdoer in not honoring the ticket when it was presented by appellee to the second conductor and in expelling him from the car over his explanations in respect to the issue of the ticket. These explanations it should have accepted as true until the contrary was shown. It was certainly as much the duty of appellant to correct the mistake which it had made in punching the ticket in the first instance when the opportunity to do so was presented to it through the agency of the second conductor as would have been its duty to have rectified the same had the attention of the first conductor been called to the mistake by appellee before he left the College avenue car. Consequently there is no force or merit in the contention that he should have examined the transfer ticket which he received before leaving the car, and have presented it to the conductor who issued it, in order that the mistake made by him in punching the ticket might be corrected.
Judgment affirmed.
Hadley, C. J., concurs with Jordan, J.; Dowling, J., concurs in the result; Monks and Gillett, JJ., dissent.
Rehearing
On Petition for 'Rehearing.
— Appellant, through its counsel, urges a rehearing in this case upon-the claim that the decision is wrong, and that the court erred in basing its conclusion upon the assumption that there was upon the face of the transfer ticket an ambiguity. There is no ground apparent or real for the latter contention. What was said in our opinion in regard to the ticket herein involved, as it appeared in the record, being prima facie unintelligible to many persons, was merely asserted in answer to the contention of appellant’s counsel that it was the duty of appellee to examine it when he received it, in order to discover if the conductor of the Oollege avenue line had punched it in accordance with his request for a transfer; the argument being advanced apparently to the effect that his neglect to exercise such caution would, under the circumstances, defeat a recovery in this case. What the court held was that the ticket furnished to appellee by appellant, as shown, could not be regarded as conclusive evidence between the parties; that, under the circumstances, it was open to the explanations made by appellee at the time he presented it for passage to the conductor in charge of the Virginia avenue car in regard to the mistake or fault of appellant’s .agent in punching the ticket; that appellee’s expulsion from the car over his explanations or statements in rela
We are not impressed with the insistence of counsel for appellant that it is the well-known disposition of many persons “to impose on public carriers whenever a safe opportunity arises,” and that therefore in the future passengers over appellant’s lines, relying on 'the rule affirmed in this case, will he enabled to overthrow the entire transfer system of the city," by means of fraudulent claims made in relation to transfer tickets.- A court ought not to hesitate to enforce the rule which we do in this case — a rule or principle which is so logically supported by many authorities— merely upon the assumption or naked assertion that some persons may be enabled thereby to perpetrate a fraud in the future. Eegard must be had for the legal rights of passengers as well as for those of public carriers; and all doubts in respect to the rights of the former are not, as counsel for appellant seemingly argue, to be solved against the passenger and in favor of the carrier. In addition to the authorities cited in the original opinion to sustain our holding that the ticket in dispute did not afford conclusive evidence between appellant and appellee in respect to the contract of carriage or passage, we cite the following: Louisville, etc., R. Co. v. Gaines, 99 Ky. 411, 36 S. W,
We are satisfied -with and adhere to the decision in this appeal, and the petition for a rehearing is therefore overruled.
Dissenting Opinion
Dissenting Opinion.
— I find myself unable to agree with' the result in this ease, and with most of the views expressed in the opinion written by Jordan, J. The action, as disclosed by said opinion, is for tort, in ejecting appellee from a street car. It appears from the complaint, as well as the evidence, that he was ejected because he persisted in being carried upon a transfer ticket that did not purport to authorize him to ride on the car on which he had last taken passage.
The contract of appellant with the city provided that “the fare and transfer ticket shall entitle such passenger to ride upon said car upon which he has taken passage to the point where said line first intersects with the line to which such passenger desires to be transferred, which shall be plainly indicated on said transfer ticket, and after riding to said point of intersection such passenger may take passage on any car on the line indicated on his said transfer ticket, and on the surrender thereof to the conductor of such car shall be permitted to ride to the end of the last named line.”
The evidence shows that appellee was a man of intelligence, who knew not only appellant’s system of transferring in its outline, but who had specific knowledge of the fact, which was also indicated on the face of the ticket, that to entitle him to be carried on a transfer he must-surrender to the conductor a transfer ticket that had the name of the line of cars to which he had transferred indicated by a punch in the space in the ticket in which such name was printed.
I agree with Jordan, J., that a transfer ticket is not a contract, but is a mere token. It is said by Mr. Wood in his work on railroads (2d ed.), 1634: “Tickets issued by a railway company to a passenger are prima facie evidence of a contract between the railway company and the passenger, to transport the latter and his personal baggage from the station named therein as the place of departure, to the station named therein as the place of destination.” See, also, Thompson, Carriers of Passengers, 65; Eetter, Carriers of Passengers, 711, and cases there cited. Back of the ordinary ticket is the contract of .the parties. There is a breach of that contract when the agent with whom it is made delivers a wrong token to the passenger. For the violation of that contract the carrier is liable fox damages. The contract is to carry, and the damages are to be admeasured with that fact in view. Consequently the damages may in many cases be substantial, and include every element that might be recovered for in case of tort, saving damages for being ejected.
In Hobbs v. London, etc., R. Co., 44 L. J. Q. B. 49, a case where the plaintiff had been negligently carried to the wrong station, Blackburn, J., said: “This is in reality an action on the contract. It is commonly called a duty, but it arises out of contract.” In a subsequent portion of the opinion, in discussing the question of damages, it was said: “The question of remoteness is left in great
A rule requiring passengers who do not pay cash fare to manifest their right to be carried by the production of proper tokens is reasonable and valid. Baltimore, etc., R. Co. v. Blocher, 27 Md. 277; Chicago, etc., R. Co. v. Boger, 1 Ill. App. 472; Pullman, etc., Co. v. Reed, 75 Ill. 125, 20 Am. Rep. 232; Frederick v. Marquette, etc., R. Co., 37 Mich. 342, 26 Am. Rep. 531; Willetts v. Buffalo, etc., R. Co., 14 Barb. 585; Hibbard v. New York, etc., R. Co., 15 N. Y. 455; Townsend v. New York, etc., R. Co., 56 N. Y. 295, 15 Am. Rep. 419; Downs v. New York, etc., R. Co., 36 Conn. 287, 4 Am. Rep. 77; Shelton v. Lake Shore, etc., R. Co., 29 Ohio St. 214. Moreover, such rule is so general with carriers that it may be affirmed not only that those who deal with them must take notice of it, but that every person of average intelligence does know of it.
The rule,'then, being reasonable, and one which the proposed traveler may be presumed to be advised of, it is pertinent to inquire, if the latter is deprived of the privilege of remaining upon the car, what was the inception of his right ? Evidently it was the contract. What was the contract ? That the carrier, for a consideration received, would transport the proposed traveler from one point to another, subject to the reasonable regulation that he should produce to the carrier’s conductor the token of his right so to be transported. If the rule amounts to anything, it must become a component part of the contract. But if the passenger receives a wrong token ? Then he may sue in contract for the breach in failing to deliver to him a .proper
As the rights of the parties had their inception in contract, and as the court can in almost every case completely recompense the plaintiff for the damages that flow from the breach, I am unable to see how the plaintiff could recover more than he might have recovered had he voluntarily left the car, by defying the rule and thereby inviting the very violence which forms the gravamen of his action, if.he is permitted to sue for being ejected.
It is proper to look at the matter from a business point of view, the question arising as to which of two conflicting rights should yield. The rule is reasonable. Its universal adoption is the best vindication of its necessity. A carrier would be warranted in enforcing 'it, even if it were compelled occasionally to respond in damages for breach of contract, as the only means by which it could maintain a proper auditing department of passenger accounts, and yet keep trespassers innumerable off its carriages; but if it were compelled to respond in large sums for assault and battery, based on invited attacks, the burden cast upon the carrier would be great, and its injustice manifest.
Another reason for the enforcement of the doctrine I contend for is based on public policy, since the opposite
The leading case upon this subject is Frederick v. Marquette, etc., R. Co., 37 Mich. 342, 26 Am. Rep. 531. The court’s opinion was written by Marston, J. It was there said: “IIow, then, is the conductor to ascertain the contract entered into between the passenger and the railroad company where a ticket is purchased and presented to him ? Practically there are Tut two ways, — one, the evidence afforded by the ticket; the other, the statement of the passenger contradicted by the ticket. Which should govern ? In judicial investigations we appreciate the necessity of an obligation of some kind and the benefit of a cross-examination. At common law parties interested were not competent witnesses, and even under our statute the wit-mess is not permitted, in certain cases, to testify as to facts which, if true, were equally'within the knowledge of the opposite party, and he can not be procured. Tet here would be an investigation as to the terms of a contract, where no such safeguards could be thrown around it, and where the conducto!’, at his peril, would have to accept of the mere statement of the interested party. I seriously doubt the practical workings of such a method, except for the purpose of encouraging and developing fraud and falsehood, and I doubt if any system could be devised that would so much tend to the disturbance and annoyance of the traveling public generally. There is but one rule which can safely be tolerated with any decent regard to the rights of
One of tbe clearest decisions of the subject is Bradshaw v. South Boston R. Co., 135 Mass. 407, 46 Am. Rep. 481. Tbe action was for tort in expelling a person from a street ear who insisted upon traveling on a wrong transfer that bad been given him by mistake. In disposing of tbe case, tbe court said: “Tbe conductor of a street railway car can not reasonably be required to take tbe mere word of a passenger that be is entitled to be carried by reason of having paid a fare to tbe conductor of another car; or even to receive and decide upon tbe verbal statements of others as to tbe fact. The conductor has other duties to perform, and it would often be impossible for him to ascertain and decide upon tbe right of the passenger, except in tbe usual, simple and direct way. Tbe cheeks used upon tbe defendant’s road were transferable, and a proper check, when given, might be lost or stolen, or delivered to some
Townsend v. New York, etc., R. Co., 56 N. Y. 295, 15 Am. Rep. 419, is a case somewhat different from this in its facts, but which strongly points out some of the practical reasons why a passenger can not recover for being ejected if he is without a proper ticket. In that case the plaintiff’s ticket had been wrongfully taken from him by the first conductor, and he was seeking to travel upon his explanation. The conductor notified him that he must pay his fare or leave the train. The court said: “If, after this notice, he waits for the application of force to remove him, he does so in his own wrong; he invites the use of the force necessary to remove him; and if no more is applied than is necessary to effect the object, he can neither
The element of the public interest is particularly brought out in Pennsylvania R. Co. v. Connell, 112 Ill. 295, 304, 306, 54 Am. Rep. 238. “Had appellee paid the fare demanded,” said the court in that case, “he might have sued the company and recovered for a breach of the contract. Piad he left the train when the conductor refused to receive the ticket and ordered him to leave, he might have sued and recovered for all damages sustained in consequence of the act of the conductor expelling him from the train. * * * A train crowded with passengers— often women and children — is no place for a quarrel or a fight between a conductor and a passenger, and it would be unwise, and dangerous to the traveling public, to adopt any rule which might encourage a resort to violence on a train of cars.”
A case containing somewhat the same course of reasoning is Southern, etc., R. Co. v. Rice, 38 Kan. 398, 403, 16 Pac. 817, 5 Am. St. 766, where it was said: “For any breach of contract or gross negligence on the part of the conductor or other employes of a railroad company, redress must be sought in the courts, rather than by the strong arm of the person who thinks himself about to be deprived of his rights. A passenger should not be permitted to invite a wrong and then complain of it.”
In Minnesota it was declared that, “If the passenger accepts a transfer plainly marked • for a particular line, he is not entitled to take a car of another and different line.” Pine v. St. Paul City R. Co., 50 Minn. 144, 148, 52 N. W. 392, 16 L. R. A. 347.
- McKay v. Ohio River R. Co., 34 W. Va. 65, 9 L. R. A. 132, 26 Am. St. 913, 11 S. E. 737, is a case which clearly indicates that the traveler can only maintain tort if he is ejected while rightfully upon the train in view of the company’s rule that a proper token must be produced. I therefore quote from the case: “Here the plaintiff had a ticket not good for the trip he was making, and declined to pay fare. He can not maintain an action for ejection or a threatened ejection from the train, but must look to the breach of contract, or the act of receiving money for the round trip and giving a wrong ticket. If the passenger have a ticket good for the passage, and the con
In Peabody v. Oregon R., etc., Co., 21 Or. 121, 133, 26 Pac. 1053, 12 L. R. A. 823, where the plaintiff had produced ah unstamped ticket and sued for being ejected, Lord, J., speaking for that court, after a careful review of the authorities, said: “It seems to us that the weight of authority and reason as applicable to the facts as disclosed by the record, is that it is the duty of the passenger to pay his fare or quietly leave the train when requested, if he has not the proper ticket, and resort to his appropriate remedy for the damages he has sustained.”
In Mosher v. St. Louis, etc., R. Co., 127 U. S. 390, 396, 8 Sup. Ct. 1324, 32 L. Ed. 249, the ticket was a contract, rather than a token, but the language used and the authorities cited, show that the Supreme Court of the United States is in accord with the cases from which I have quoted. It was there said: “The conductor of the defendant’s train, upon the plaintiff’s presenting a ticket bearing no stamp of the agent at Hot Springs, had no authority to waive any condition of the contract, to dispense with the want of such stamp, to inquire into the previous circumstances, or to permit him to travel on the train. It would be inconsistent alike with the express terms of the contract of the parties, and with the proper performance of the duties of the conductor, in examining the tickets of other passengers, and in conducting his train with due regard to speed and safety, that he should undertake to determine,
Space will not permit a further quotation from the cases, but I cite'-as in point upon the proposition that the ticket is conclusive for the time being: Dixon v. New England R. Co., 179 Mass. 242, 60 N. E. 581; New York, etc., R. Co. v. Bennett, 1 C. C. A. 544, 50 Fed. 496; Poulin v. Canadian Pac. R. Co., 3 C. C. A. 23, 52 Fed. 197, 17 L. R. A. 800; Chicago, etc., R. Co. v. Griffin, 68 Ill. 499; Thorp v. Concord R. Co., 61 Vt. 378, 17 Atl. 791; West Maryland R. Co. v. Stocksdale, 83 Md. 245, 34 Atl. 880; McGhee v. Reynolds, 117 Ala. 413, 23 South. 68; Woods v. Metropolitan St. R. Co., 48 Mo. App. 125.
I must, however, give space to a few quotations from text-writers. Mr. Hutchinson in his work on carriers (2d ed.), §580h, says: “So where the passenger, having paid fare to the point of destination, is, by the mistake of the company’s agent, furnished with a ticket which upon its face entitles him to a ride only to a point short 'of his destination, or the like, the passenger, having accepted the ticket, can not insist on riding upon that ticket beyond the point to which by its terms it entitles him. He must therefore pay fare to his destination or get off and continue his journey by other means, and, if he refuses, the conductor may eject him;
Judge Freeman, the learned annotator, in the course of a long note on carriers’ rules and tickets, says: “Although the cases on this subject are not entirely consistent with each other, the doctrine deducible from them, and the correct doctrine as it seems to us, is that when one has paid his fare to a certain destination on a railway, to the officer appointed by the company to receive it, the contract for carriage is complete, and he has a right to be carried in accordance with that contract, which can not be infringed or impaired by any rule of the company or by any mistake or default of its servants. If by a mistake of one of the officers of the company he is not furnished with a proper ticket or check evidencing his right to be carried to his destination, his right nevertheless remains, and if for want of the requisite evidence of that right, another servant of the company refuses to carry him without another payment of fare, the contract is broken, and he has a complete right of action for all damages resulting from such breach. But as the rule requiring him to show a proper ticket or to pay his fare, if demanded, is a reasonable one, he will not be justified in refusing compliance with it, and in remaining in the car until forcibly expelled, merely for the purpose of heaping up damages. He should either pay the fare demanded or quit the train; and in either case we think he ought to recover, as a part of his damages, reasonable compensation for the indignity put upon him by the company through the default of its servant. But he can add nothing to his claim by remaining in the car until
In Elliott, Bailroads, §1594, tbe authors say: “Whether tbe action be in contract or in tort, for tbe breach of a contract or for tbe violation of a duty imposed by law, tbe gist of tbe action can not well be tbe expulsion of tbe traveler, where there is no unnecessary force, in accordance-with tbe rules of tbe company, where be bas no ticket or evidence of bis right to transportation valid on its face or sucb as tbe rules reasonably require, and refuses to pay bis fare. Tbe wrong lies back of that, and it is well settled that a complaint proceeding upon one theory will not authorize a recovery upon another and entirely distinct and independent theory.”
I shall now examine the cases decided by this court that are cited by Jordan, J. Pittsburgh, etc., R. Co. v. Hennigh, 39 Ind. 509, is not in point, because tbe plaintiff in that case bad a proper ticket, of wbicb be was deprived by a conductor while en route. In Toledo, etc., R. Co. v. McDonough, 53 Ind. 289, tbe plaintiff bad, by tbe direction of tbe conductor of a mixed train on wbicb be was riding, taken passage, in tbe same direction, on a passenger-train, and bad presented a card, given him by said conductor, that bad written upon it tbe number of tbe station to wbicb tbe plaintiff was traveling and tbe initials of sucb conductor. It was held that tbe answers of tbe jury to interrogatories were not in conflict with tbe general verdict, as tbe jury might have found that tbe first conductor bad assured tbe plaintiff that tbe card was a sufficient ticket. Tbe case can be disposed of on tbe theory that tbe plaintiff
As to the cases cited by Jordan, J., from without this State: In New York, etc., R. Co. v. Winters, 143 U. S. 60, 12 Sup. Ct. 356, 36 L. Ed. 71, Murdock v. Boston, etc., R. Co., 137 Mass. 293, 50 Am. Rep. 307, Ray v. Courtland, etc., Traction Co., 46 N. Y. Supp. 521, Ellsworth v. Chicago, etc., R. Co., 95 Iowa 98, 63 N. W. 584, 29 L. R. A. 173, Philadelphia, etc., R. Co. v. Rice, 64 Md. 63, 21 Atl. 97, and Hufford v. Grand Rapids, etc., R. Co., 64 Mich. 63, 31 N. W. 544, 8 Am. St. 859, the tickets were good on their face. Of the latter case it was said in Heffron v. Detroit City R. Co., 92 Mich. 406, 411, 52 N. W. 802, 16 L. R. A. 345, 31 Am. St. 601: “The case of Hufford v. Grand Rapids, etc., R. Co., 64 Mich. 631, is distinguishable in this: There the ticket was one purporting, on its face, to cover the distance to be traveled by Hufford. He paid the usual fare between the two places, and the ticket contained no printed exceptions or conditions restricting Hufford from using it at the time he presented it to the conductor. Its infirmity, if any, was not open to Hufford’s plain observation, so that he was informed on its face that it was not good.” In Trice v. Chesapeake, etc., R. Co., 40 W. Va. 271, 21 S. E. 1022, the court expressly affirmed the ease of McKay v. Ohio River R. Co., 34 W. Va. 65, 11 S. E. 737, 9
Monks, J., concurs in the above opinion.
