25 S.D. 606 | S.D. | 1910
This is an appeal from an order of the circuit court of Minnehaha county, sustaining a demurrer to the defendant’s answer. The complaint sets forth a cause of action for the recovery of damages for an assault claimed to have been committed upon the plaintiff by the conductor and trainmen of the defendant railway corporation on the 7th of March, 1908. It is alleged that on the 6th day of March, 1908, the plaintiff purchased a railway ticket at the - town o-f Lester, in the state of Iowa, for transportation to Sioux Falls, S. D., by way of Garret-son, and paid therefor the sum of 75 cents; that on said day the plaintiff traveled on defendant’s train on said ticket from Lester, Iowa, to Garretson, S. D.; that on the 7th day of March, 1908, the defendant received the plaintiff as a passenger upon its train at Garretson, S. D., to be carried to Sioux Falls, S. D., and that he presented the ticket above mentioned to the defendant’s conductor in charge of said train, who- refused to accept the same, and demanded fare from this plaintiff from Garretson to Sioux Falls; that the said plaintiff refused to pay said fare, whereupon the conductor and the employes of the defendant willfully, maliciously, and violently ejected the plaintiff from the train, whereby the said' plaintiff was greatly injured, wounded, and suffered exposure and grievous mental suffering, alleging damages.
The defendant in its answer admits the foregoing allegations of the complaint, except as to injury, and sets forth the terms and conditions of the ticket in part as follows: “Great Northern Railway Line. Good for one first-class passage from Lester to Sioux Falls. This tipket is not transferable and will not he honored for passage if presented by another than the original purchaser, whose signature appears hereon. Any alteration or erasure on this ticket makes it void, and it will' be taken up by conductor or exchanger. It will not be honored for passage after date punched in margin. ' If closely limited no stopover will be
The record discloses that the agent of defendant at Lester, Iowa, either -intentionally or inadvertently sold the plaintiff an unlimited ticket or contract for transportation from Lester, Iowa, to Sioux Falls, S. D., for the sum of 75 cents. This transaction, whether entered into by the agent and purchaser intentionally or inadvertently, was a violation of the order of the Interstate Commerce Commission. It is admitted by the record that the order of the Commission, contained the requirement that, tickets sold at this special rate must be for continuous passage, and that stop-overs could not be allowed, and that the order had been regularly filed, and posted in the station of defendant at Lester, Iowa. There can be no doubt, we think, under the construction given the interestate commerce act (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. Comp. St. 1901, p. 3154]) by the federal courts, that every person dealing with an interstate carrier is as effectually bound by-the law and the orders of the Commission, as to both freight and passenger tariffs, as is the carrier himself. To hold that either ■party under any conditions may be estopped from asserting the
Plaintiff can.recover damages only for a refusal of defendant’s conductor to comply with a valid contract to transport him from Lester, Iowa, to Sioux Falls, S. D. Section 545 of the Civil Code provides: “If any passenger shall refuse to pay his fare it shall be lawful for the conductor of the train and the servants of the corporation to put him and his baggage out of the cars in the manner prescribed in section 1593.” In the absence of any special regulations legal payment of fare may be made either to the conductor personally, or to the agent of the company. Upon payment of the fare to either, a contract arises creating a duty toward the passenger, and his ejection thereafter becomes a wrongful trespass, 'and entitles him to compensation for the injury. Upon payment of the necessary fare to the agent of the company, the passenger received a ticket which, to the conductor, is the only evidence of the contract; which contract is required to be made in strict conformity with the order of the commission] under heavy penalties. To say that a conductor is -bound to accept a ticket issued in violation of the order of -the commission would -seem to be an anomaly, and to permit the passenger who was a party to the same violation of - law, to insist upon a right to ride upon a void and unlawful ticket, or to recover damages for a wrongful ejection, would be a still greater one.
The ticket was for interstate passage between points less than 300 miles apart, was wholly unlimited, and therefore in plain violation of the filed and posted schedules and the order of the commission. Suppose, instead of a ticket, the defendant in violation of the statute had furnished plaintiff a pass, and the conductor knowing it to be unlawful, had refused to honor it, and on plaintiff’s insisting on his right to ride and refusal to pay fare, had ejected him from the train would it be possible for him to recover damages for such an ejection? We think not. The issuance of an unlawful pass is no different in principle from the issuance of an
It must be borne in mind that plaintiff is here insisting that as to him this contract is binding and effective, notwithstanding it i-s by its terms unlimited as to both time and stop-over privileges, and is in clear violation of the order of the commission. He plants his action squarely upon the very language and terms of the contract. He insists that the carrier, whether intentionally or inadvertently, has furnished him a contract which, though in terms in
In Mayes v. Life Stock Ass’n, 58 Kan. 712, 51 Pac. 215, the court citing with approval Uhlig v. Garrison, supra, says: “The controversy arises here directly between the parties to the illegal contract, and the plaintiff seeks a recovery through and under that contract. The parties voluntarily entered into the contract, and they must be held to have had knowledge that in doing so they were violating the law.”
“The estoppel claimed by complainant in this case, if the facts were proved as claimed, could not have the effect sought to be attributed in this case. Public policy will not allow the doctrine of estoppel to come in, and aid in validating an unexecuted contract which it holds to be void.” Robinson v. Patterson, 71 Mich. 141, 39 N. W. 21.
“But it is insisted such a contract may be relied on a-s an estoppel, and a recovery therefor had. We do not believe this is correct, and are unwilling to hold that a contract void as being against public policy has any vitality whatever. It matters not how it may be pleaded, a substantial right cannot be enforced thereunder. That which cannot be recovered in an action on the contract should not lie permitted to be done by indirection.” Langan & Noble v. Sankey, 55 Iowa, 52, 7 N. W. 393.
“Courts will not aid a person whose cause of action, either upon his own showing or otherwise, appears to arise exturpi causa, or from the transgression of positive law. They do nor adopt this policy for the purpose of protecting a defendant, but from a determination not to assist such a plaintiff.” Den. ex dem. Wooden v. Shotwell, 24 N. J. Law, 789.
We have considered only the theory upon which plaintiff apears to have founded his action- By stipulation the original ticket was made a part of the answer, and on its face discloses that it is wholly unlimited either as to time or stop-over privileges. Apparently the' answer originally intended to treat the ticket as though it were one properly limited by punching, for continuous passage without stop-over privilege, in accordance with the order .of the commission. The answer docs not' allege that the ticket was issued by mistake or inadvertence of defendant’s agent. In this state of the pleadings the only question before us for determination is the single proposition whether the specific' contract disclosed by the ticket itself, concedcdly in violation of the orders of tile Interstate Commerce Commission duly filed and published, must be accepted by the conductor of a train as a valid and legal contract or ticket. There is no allegation in the complaint that the plaintiff was in any way deceived or mislead by the defendant's agent, or was not aware of the illegality of the contract or the orders of the commission, though we do not mean to infer that such facts might be material if pleaded. We refer to them only to make clear what appears to us to be plaintiff’s only contention, viz., that he had an absolute right to be carried as a passenger upon a ticket issued to him by the carrier in violation of the terms and conditions contained in the orders of the commission. We do not believe such a contention can be sustained.
The order sustaining the demurrer to the answer is reversed.