26 Ind. App. 224 | Ind. Ct. App. | 1901
Appellee sued appellant to recover damages for an alleged wrongful ejectment from one of its trains. The facts upon which appellee bases his cause of action are stated in two voluminous paragraphs of his complaint'. To each paragraph of complaint a demurrer was addressed and overruled. Appellant’s answer was in four paragraphs. Reply in denial. Bury trial; verdict and judgment for appellee. Motion for a new trial overruled. Overruling the demurrer to each paragraph of complaint and the motion for a new trial are assigned as errors.
Appellee had purchased and had in his possession a ticket known and called the “Central Passengers’ Association Interchangeable 1,000 mile Rebate Exchange Ticket.” It is charged that though the contract was made in the name of the Central Passenger Association by F. C. Donald, commissioner, it was in fact made by appellant in that name and by the association in behalf of and with authority of the appellant. The contract limiting the use of the ticket is set out in full in the complaint. Appellee presented the ticket at a regular ticket office of appellant, at a proper time, and demanded an exchange ticket, which his contract provided should be procured, and was informed by the agent that the supply of such exchange tickets had been exhausted and that he could not furnish him with one. It is further averred that appellant’s ticket agent, at Hamilton, Ohio, where appellee had presented his said interchangeable
The above facts are gleaned from the first paragraph of the complaint. The second paragraph avers the same material facts, except that it omits any allegations as to what the agent at Hamilton said to appellee as to his right, under the existing circumstances, to use on the train his interchangeable mileage ticket.
Our attention has not been called in argument to any
As to appellee’s right to recover under the allegations of the complaint, counsel for appellant suggests and discusses three propositions: (1) Had appellant’s ticket agent at Hamilton power, as a matter of law, to bind appellant by his statement to appellee ? (2.) Had appellee, on the advice of the ticket agent, a right to go upon the train as a passneger, knowing that he did not have an exchange ticket, which his contract required that he should have, and demand that he be carried upon his mileage ticket alone ? (3) That if there was a violation of the special contract in appellant’s failure to furnish appellee with an exchange ticket, he was confined in his legal remedy for the violation of his rights under the contract, and that he had no right to enter the train as a passenger, and after his ejection, under the facts stated, sue for resulting damages.
It is further suggested in argument that the interchange- • able ticket purchased by appellee was issued by the Central Passengers’ Association, and that appellant was not a party to the contract. It is shown that the Central Passengers’ Association is a combination composed of a great number of railroad companies, and that appellant was one of the number. The complaint shows that the ticket in question was purchased of appellant at its ticket office at Richmond, Indiana. It does not seem to us that it makes any difference because the ticket was issued by the Central Passenger Association, for we are clear that such association, in issuing the ticket, was the agent of appellant, for appellant was a part and parcel of the association, and it would therefore be bound by its acts within the scope of its authority. And this fact is emphasized by the additional fact that appellant itself sold the ticket to appellee.
In Ruble v. Massey, 2 Ind. 636, the court say: “The law is settled that where a precedent condition was to have been performed by the plaintiff, but its performance has been prevented by the defendant, such prevention may be averred as an excuse for the non-performance.”
In Hawley v. Smith, 45 Ind. 183, on p. 202, the court says: “The rule is, that when the performance by one party is prevented by the act of the other, the party not in fault should recover in damages such sum as will fully compensate him for the injury which he has sustained by reason of the non-performance of the contract. The law is settled that where a precedent condition was to have been performed by the plaintiff, but its performance has been prevented by the defendant, such prevention may be averred as an excuse for non-performance of such precedent condition.” "
“It is an elementary rule that he who prevents a thing being done shall not avail himself of the non-performance he has occasioned.” Broom’s Leg. Max. 195. See, also, the following authorities: Durland v. Pitcairn, 51 Ind. 426; Lane v. Albright, 49 Ind. 275; Jones v. Walker, 52 Ky. 163; Mains v. Haight, 14 Barb. 76; Jewell v. Blandford, 37 Ky. 472; Elkhart, etc., Co. v. Ellis, 113 Ind. 215; King v. King, 69 Ind. 467.
In this case, as is shown by the complaint, appellee had paid his fare by the purchase of a mileage book and had the evidence of such fact in the ticket itself. He had done all in his power to comply with the rules which appellant had prescribed, and in our judgment he had a right to enter the train, and was properly on the same as a passenger, and not as a trespasser. There are cases in this State and in other states which are in line with the rule we have stated, and, as we believe, in full harmony with it.
We quote again from Chicago, etc., R. Co. v. Graham, 3 Ind. App. 28, 50 Am. St. 256: “If, however, a passenger is unable to procure a ticket through the fault of the company, he may take passage on such train, and upon a tender of the ticket fare will be entitled to all of the rights and privileges that a ticket would afford him. Upon a tender of fare under such circumstances, the relation of carrier and passenger would obtain, and the company would have no right to eject such passenger, or deny him passage, because he is without a ticket. This principle is firmly settled by the decisions of the Supreme Court of this State.” The following cases strongly tend to support the rule under consideration: Lake Erie, etc., R. Co. v. Close, 5 Ind. App. 444; Jeffersonville R. Co. v. Rogers, 28 Ind. 1; Indianapolis, etc., R. Co. v. Rinard, 46 Ind. 293; St. Louis, etc., R. Co. v. Myrtle, 51 Ind. 566; Lake Erie, etc., R. Co. v. Fix, 88 Ind. 381, 45 Am. Rep. 464; Pittsburgh, etc., R. Co. v. Hennigh, 39 Ind. 509; Toledo, etc., R. Co. v. McDonough, 53 Ind. 289; Hufford v. Grand Rapids, etc., R. Co., 64 Mich. 631, 31 N. W. 544; Railroad Co. v. Murden, 86 Ga. 434, 12 S. E. 630; Evansville, etc., R. Co. v. Cates, 14 Ind. App. 172; Missouri R. Co. v. Martino, 2 Tex. Civ. App. 634, 18 S. W. 1066.
Counsel for appellant argues that when appellee failed to
The case of Louisville, etc., R. Co. v. Hine, 121 Ala. 234, 25 South. 857, is in point. There appellant had a rule that persons provided with transportation could ride upon freight trains by procuring a permit. Appellee purchased of one of appellant’s ticket agents a ticket from one station to another, and at the same time made application for a permit to ride on a freight train. The agent promised appellee to procure the permit and give it to the conductor.
A breach of the duty which a common carrier, as such, owes to its passengers, involves misfeasance as well as nonfeasance; and for an injury caused by such breach, an action lies in favor of the passenger in tort, as well as upon the contract of carriage. Louisville, etc., R. Co. v. Hine, 121 Ala. 234, 25 South. 857; 2 Sedgwick on Dam. (8th ed.) §859; 5 Am. & Eng. Ency. of Law (2nd ed.), 691; Louisville, etc., R. Co. v. Gaines, supra; Sheldon v. Uncle Sam, 18 Cal. 537.
In Reed v. Great Northern R. Co., 76 Minn. 163, 78 N. W. 974, appellee had adopted a rule that it would carry passengers on a certain freight train when persons so desiring to be carried had provided themselves with transportation, and procured from a ticket agent a permit so to ride on such train. The company supplied their ticket agents with blank permits, which were to be filled and signed by the agent issuing them. Appellant applied to the agent at a
In the former part of this opinion we said that, in our judgment, what the agent at Hamilton told appellee in regard to a rule the company had made, that-under such circumstance he could ride on the train by permitting the conductor to tear out of his mileage book coupons from Moslers, did not constitute an important factor in the case; but as opposing counsel have earnestly argued the question, it is proper to decide it. It is certainly in the line of duty and scope of authority of a ticket agent of a railroad company to sell tickets and give purchasers thereof all needed information relative to their rights as passengers guaranteed by the contract between the passenger and the railroad company. In deciding the point under consideration, we are not dealing with the evidence, but with a pleading. Appellant’s agent told appellee that he could ride on the train under a rule adopted by the company, by allowing the conductor to tear out coupons from his mileage book from a certain flag-station. We can not see any good reason why appellee had not a right to rely upon that information, and counsel for appellant has not suggested any well grounded reason to the contrary. Our attention has been called in appellee’s brief to a case which we think in principle and reason settles this question. Murdock v. Boston, etc., R. Co., 137 Mass. 293, 50 Am. Rep. 307. In that case, the ticket agent sold to the plaintiff a punched ticket, and made certain representations to him as to its validity. Under the rules of the company he had no authority to sell such a
In this case, appellant, by its own negligence, in failing to supply its agent with exchange tickets, was unable to carry out its contract with appellee. These facts present a case of emergency. The complaint avers that appellee did not have with him sufficient money to pay his fare to Richmond. There was a rule that at flag-stations (and we presume this means at stations where tickets are not kept on sale) conductors are authorized to accept mileage books and tear out a coupon for each mile traveled. Appellant certainly had a right to provide for such an emergency for two reasons: (1) That the holder of the mileage book should be protected from inconvenience and guaranteed all his rights under the contract, and (2) that appellant might not be held to be in default of the conditions laid upon it under the contract. Appellant’s counsel urge that the agent had no right to change or waive the provisions of the con
Appellant assigned twenty-nine reasons in its motion for a new trial. All of these but the first four question the action of the court in giving and in refusing to give certain instructions, and in admitting and refusing to admit certain evidence. An examination of all the questions thus raised has led us to the conclusion that none of them present any reversible error. We cannot believe that it would be profitable to lengthen this opinion by discussing them.
The first, second, and third reasons for a new trial ^re that the verdict is not sustained by sufficient evidence, and is contrary to law. It is urged that appellee failed to make a case, because the evidence shows that the contract was between appellee and the Central Passengers’ Association, and not between appellee and appellant. We do not think there is any merit in this position. Appellant was a part of the association, and the association was therefore its agent in issuing the mileage book, and making the accompanying contract. The law will not permit a corporation to deal through an agent, and thus erect a barrier to protect it from its own wrong or fault.
The next point discussed arises under the fourth paragraph of answer, which pleads a law of Ohio, where the wrong complained of had its inception. It is argued that, under the law of Ohio, it was the duty of appellee to pay his fare, and sue the company for a breach of its contract. Erom an examination of the authorities, we are unable to adopt the views of appellant’s learned counsel upon this proposition. If appellant’s position is a correct one, appel
The evidence fully sustains the verdict.
Appellant’s fourth reason for a new trial was that the damages were excessive, but the point is waived by a failure to discuss it.
Judgment affirmed.