Mitchell v. Southern Railway Co.

77 Miss. 917 | Miss. | 1900

Gali-iooN, J.,

delivered the opinion of the court.

The declaration in this case is for damages against the railway company, and has two counts, and it was demurred to and the demurrer was sustained, and Mitchell, the plaintiff, appeals.

In his first count he charges that on September 4, 1897, he bought in Vicksburg, Miss., a ticket for passage to, and return from, Washington City. He bought it from the Alabama & Vicksburg Railway Co., which was acting in the sale for itself and as agent for the appellee and divers other connecting lines between Vicksburg and Washington City.

This ticket provided that, before commencing his return from Washington City, Mitchell should be identified there before the authorized agent of the Baltimore & Ohio Railroad Company, who should stamp and date the identification.

Then follows the fourth clause of the contract part of the ticket, which is in these words.:

“ The punch mark in the margin of the face under the head of ' Return Transit Limit ’ indicates the number of days which will be allowed to said purchaser from the date of said identification in which to return to the point at which this ticket is sold. This ticket shall not be good for return passage after midnight of the last day so allowed, and in no event later than the date canceled in the margin of the face hereof under the head of ‘ Return Passage.’ ”

The date so canceled is October 4, 1897, and the number of days allowed to complete the return journey to Vicksburg after identification is indicated by the punch mark to be three.

The first count then states the case to be that Mr. Mitchell was identified by the proper agent in Washington on October 4, 1897, and on that day he commenced his return transit toward Vicksburg, and his case is based on the claim, that he had three days in which to return to Vicksburg from the date of identification, although he procured the identification on a. day which made it impossible for him to complete his return journey to Vicksburg by midnight of October 4.

This count then proceeds to aver that on the nest day, October 5, 1897, being at Johnson Oity on his way back, he was “ wrongfully ejected ” from its car by appellee’s conductor “ in the presence of many passengers, with great indignity and wrong and hardship,” etc.

It will be seen that the gravamen of this count is the predicate that the plaintiff was entitled to travel on his ticket after mid-nigbt of October 4, 1897, because be commenced to travel on it on that day, it being tbe day be was identified in Washington.

We cannot approve this view. It was not tbe contract be made at Vicksburg. By that contract be bad three days from tbe purchase for bis trip to¡ Washington, and no more, and three days for bis return to Vicksburg from tbe date of identification, and no more. By that contract bis ticket was “dead at midnight of October 4, regardless of the date of identification. By it, whensoever be procured bis identification, although be may have bad even ten or twenty days to spare of tbe thirty between September 4, tbe day of purchase, and midnight of October 4, tbe day of expiration, be could not stop to prevent it, but must make his return trip within tbe three days’ limit.' After midnight of October 4 be bad no right, by virtue of that ticket, on any train of any of tbe connecting lines, and might be properly ejected from any by tbe conductor.

All tbe sound reasoning and tbe great mass of authorities favor this view. The cases are cited in tbe very exhaustive and able briefs of the counsel on either side. In fact, those two- or three cited by tbe learned counsel for appellant, when carefully scrutinized, are not in conflict with our conclusion.

In Lundy v. Central Pacific R. R. Co., 66 Cal., 191, tbe ticket read “ not to' be good for passage ” after nine days from sale, and we are not prepared to say tbe court was wrong in bolding plaintiff entitled if be took passage before tbe nine days expired. We make tbe same observations as to Auerbach v. N. Y., etc., R. R. Co., 89 N. Y., in which case the ticket recited that it was “ good for one continuous passage-,” but not to be “ used ” before September 26; and tbe court properly, perhaps, held tbe bolder entitled if he began its use before September 26. We make tbe same observation as to Ga. So. R. R. Co. v. Bigelow, 68 Ga., 223, where the ticket read: “ Rome and return, if used within two days from tbe date sold.” In all these cases it may well be said that the company’s reservation must be taken most strongly against it, and -it should have clearly fixed the precise limitation oí use or passage. In the' ease at bar it is precisely fixed and we cannot make contracts for the parties. There can be no question of the meaning of this ticket. Its very terms prescribe that “ in no event ” shall it be good after midnight of October 4.

All that has been said is, of course, subject to the modification that, if the purchaser started in time to make his passage within the three days, he should not suffer if any casualty or incapacity of any of the connecting' lines made the journey impracticable within the limit.

As to so much of the first count as charges that the ejection was made with indignity., etc., and as to so much of the second count as charges brusqueness, wrong, harshness^, injustice, etc., we suppose they are not really depended on. If they are, the dependence falls, because they charge conclusions only, and do not give facts from which the conclusions are drawn of which the court may judge.

The demurrer was properly sustained as to the first count.

The second count adds to the first the'averments that, two days before the expiration of the limit, and in time to reach Vicksburg within the period, plaintiff applied for identification to the proper agent, who “ recommended and advised ” him not to be then identified, because he could not. get home on the route within the three days, since, on account of yellow fever, some of the connecting lines, could not operate, and “ refused and declined ” to stamp his identification, and said that his limit would be extended “ upon application,” such extension being then a universal practice on that system. This was on Saturday, October 2. On October 4 he applied for extension, and was “ brusquely, wrongfully, harshly and unjustly refused.” Still he then had himself identified and started and was ejected as set forth in the first count, although he communicated the facts to the conductor; and the count concludes that the conductor “so ejected this plaintiff, doing him the great wrong and injustice aforesaid, to his damas'e.” etc.

By all rules of construction of pleadings tbis count is based on tire ejection from the train, and not on any refusal to identify. The latter seems to. be brought in merely in recital of the history of the case. At any rate, the plaintiff claims no damage because of it. An action based on that, and sustained by proof, would entitle him to damages to cover wha.t he may have had to expend to get home by another route with timely departure, and to other damages if the refusal was accompanied by insult appropriately pleaded.

We consider now, therefore, the ejection, presuming, as we must, that plaintiff was properly and politely ejected. The case, in this aspect, in effect, is this: Plaintiff produced his ticket, which showed itself to be void, and told the conductor that he had applied to the agent on October 2 for identification, and was told, by the agent he had better not then identify, as some of the connecting lines could, not operate because of yellow fever, and that he could readily get an extension of time, and that the agent then refused identification, and that, on October 4, he applied for extension and was refused, and that then he obtained identification and started home, and, notwithstanding this statement, the conductor put him off the train.

This states no cause of action on the ejection. Plaintiff relied on extension of time at his own peril. He knew there was nothing in his contract binding the carrier to' extend, and that any extension would be a mere gratuity. He should have insisted on identification, and could have sued if refused.

On the question of his right to sue for the ejection, we are clearly of the opinion that it does not exist. To. hold that it does involves the logical conclusion that a conductor must accept any oral statement of a passenger, even merely that he had lost his ticket, thus putting railroad companies at the mercy of every tramp, and thus putting conductors to the alternative of accepting as true all statements or subjecting their companies to an action for damages.

The Riley case, in 68 Miss., and the Holmes case, in 76 Miss., ha,ve carried the doctrine as far as it can be pressed ■without crossing the danger line of injustice to railroad corporations. We approve both of those cases because, in each of them, the passenger had, and exhibited to the conductor, evidences showing reasonably the statement to be true. Here there is nothing to support the oral statement but the mere production of a ticket absolutely void on its own face.

The demurrer was properly sustained as to the second count.

Affirmed.