102 Ga. 302 | Ga. | 1897
Lead Opinion
This case has been twice argued; once before the first division of the court, and subsequently before the court as a whole. In the latter argument, leave was asked and permission given by the court to review the case of Head v. Georgia Pacific Ry. Co., 79 Ga. 358. After a full consideration of that case, five members of the court think that it is a sound exposition of the law of this State, and decline, therefore, to overrule it. Presiding Justice Lumpkin differs with us, and thinks that it should be overruled.
The Head case is so well reasoned by Bleckley, C. J., that I shall not attempt further to elaborate it. Under the principles of that case, Morse, the plaintiff in this case, was entitled to recover from the railroad company, if he had fully complied with the conditions of his contract with the company. Whether he did fully comply therewith was, in our opinion, a question for the jury, on which we now express no opinion. On the next trial, on that branch of the case the question will be whether Morse identified himself to the satisfaction of the agent. If he did so, and the agent arbitrarily refused to validate the ticket, and Morse notwithstanding this fact got upon the train and was ejected therefrom by the conductor, he would be entitled to recover. If, upon the other hand, he did not comply with the conditions of his contract and failed to furnish such proof of his identity as would satisfy the agent, then he can not recover. In his contract he agreed to do this. Pie agreed to furnish such proof of his identity as would satisfy a reasonable man—a man who was seeking to do justice between his company and the other party. No rule can be laid down as to the amount of proof such a person should furnish in order to satisfy the agent. I should think it would depend
Judgment reversed.
Concurrence Opinion
concurring specially. This is an important and interesting case. We all agree that the law of the main question involved is controlled by the decision of this court in Head’s case, 79 Ga. 358. All the Justices of this court, except myself, are of the opinion that the doctrine there laid down is sound and should stand affirmed. This being so, I am, under our statute, bound by the decision in that case, and consequently am constrained to concur in the judgment now rendered. But I do not believe that decision is good law, and therefore think that the same should have been overruled. In that case this court held that although the purchaser of a railway excursion ticket had, by a 'special contract in writing, agreed that it should not be good for a return passage unless officially signed and dated in ink and duly stamped by a designated agent, the ticket was good for such return passage without being so signed, dated and stamped, if the purchaser had “in proper time and manner” done, or offered to do, all which was under the contract incumbent upon him in order to have the ticket made good for return passage in the manner indicated.
Of bourse, a refusal by the agent to validate the ticket, when it was his duty to do so, would constitute a breach of the contract between the company and the purchaser of the ticket, entitling the latter to damages; but I can not understand how
The following is from Hutchinson on Carriers (2d ed.), §580b: “Thus where, in consideration of a reduced rate, a
The following is extracted from Ray’s Negl. of Imposed Duties (Pass. Car.), 511, 512: “Acondition on a return excursion ticket sold at a reduced rate, that it shall not be good for the return trip unless stamped by the ticket-agent at the other end of the route, and again signed by the purchaser, is both reasonable and material; and a purchaser failing to comply therewith can not recover against the company on account of being ejected by the conductor, although he could, and offered to, otherwise identify himself as the original purchaser, or the conductor had certain knowledge of that fact.” See the authorities cited in note 1 on the latter page. For other cases hearing upon the law relating to unstamped tickets, see 4 Rapalje & Mack’s Dig. of Ry. Law, 184.
The argument that a railway company should be held liable in damages for the expulsion of a person who presented-an invalid ticket, when the fact that it was not good was due to the company’s fault, does not commend itself to me as sound. The purchaser, in such a case, is bound to know what his contract is, and is therefore chargeable with notice that his ticket will, or should be, rejected. Consequently, in attempting to ride upon it he invites expulsion, and thus places himself in the position of aggravating his damages,—a thing which, ac
Our case of Georgia Railroad Co. v. Dougherty, 86 Ga. 744, certainly goes quite as far as any court should ever go in holding that a railroad company should be held liable in damages for ejecting from its train a person presenting a ticket upon which he was. apparently not entitled to ride. There, the plaintiff had not entered into any special contract with the company, but had simply called for an ordinary ticket, and the agent had by mistake delivered to her “a wrong ticket,” which she, relying upon the assumption that the agent understood his business, accepted without examination, being nearsighted and unable to read without her glasses, which she did not know whether she had with her on that occasion or not. This decision has not escaped criticism.- In 9 Harvard Law R,ev. 353, it was said: “The weight of authority is against it, and it seems to have no foundation in principle. It involves a misconception of the true character of a railroad-ticket.” And see 42 Cent. L. J. 117. Even if the decision in Dougherty's case was right, however, it does not, in my judgment, support my brethren in adhering to the doctrine laid down in the Head case.
I will suggest a few illustrations showing the extent to which
Or, if a railway company contracted in wrriting with a person to do for it certain work at a point upon its line, agreeing in the contract that upon his completion of the work it would, through its agent at that point, furnish him with a ticket for his return home, he could, after due compliance with his undertaking and a demand upon the agent for the ticket, whether he received the same or not, insist upon being accepted by a conductor, or conductors, as a passenger entitled to ride.
It frequently happens that in acquiring a right of way through a tract of land, a railway company contracts to deliver to the owner a pass for life, or a term of years, over its road. If, after the completion of the line, it refused to deliver the pass, he could nevertheless demand of all conductors the right to travel upon the company’s trains, and could maintain an action for damages for every expulsion therefrom.
It is unnecessary to multiply illustrations. These will suffice to show the extreme lengths to which, following the rule laid down in the Head case, the courts would be constrained to go, and also, I think, to prove that this rule ought to be repudiated.
There is another consideration which I wish to submit. The breach by a railway company of a special contract whereby it undertakes, in consideration of a reduced rate, to furnish a person with a ticket evidencing his right to ride upon a train, gives rise to an action ex contractu. It is by no means a case of tort; and yet the injured party, by attempting to ride without the ticket, becomes, under the doctrine which
I have, I trust, made it sufficiently plain that I am not in favor of exempting railway companies from the consequences of breaking their contracts; but lest I be misunderstood, I repeat here that they should be compelled to pay full and just compensation to any person who is put to loss or damage by reason of their failure to faithfully perform their undertakings, whether the same relate to tickets orto other matters. At the same time, I can not give my sanction to a judgment which I firmly believe is contrary to law.