47 Ind. 79 | Ind. | 1874
This was an action by the appellee to recover damages for an alleged unlawful expulsion from the cars of the appellant by its servants.
The complaint contains three paragraphs. The first alleges that the appellant is the owner of a railroad extending from Indianapolis to Terre Haute, and engaged in the business of conveying persons for hire to and from those1 places, and intermediate places on the line of the road; that on a day named, the appellee paid the usual fare from Terre Haute to Greencastle, and took passage and occupied a seat in one of the cars of the appellant from the former to the latter place; that after .travelling ten miles the conductor demanded pay from him as a passenger, and refusing to comply with such demand, he was forcibly ejected from the car, and left at Brazil, a station between Terre Haute and Green-castle.
The second and third paragraphs, respectively, allege in different forms, that the appellant was the owner of the Terre Haute and Indianapolis Railroad, extending from Terre Haute to Indianapolis, and had the control of the St. Louis,. Vandalia, and Terre Haute Railroad, extending from St. Louis to Terre Haute, and together forming a continuous line from Indianapolis, in this State, to St. Louis, in the State of Missouri, and known as the St. Louis, Vandalia, Terre Haute, and Indianapolis Railroad. They also allege the purchase of a ticket of the appellant by the appellee for the sum of twenty-five dollars, called a “ thousand mile-ticket,” by which the appellant undertook to carry the appellee a distance of one thousand miles on the St. Louis, Vandalia, Terre Haute, and Indianapolis Railroad; that he had not travelled the distance of one thousand miles on the road so owned or operated by the appellant, but was entitled to travel thereon from Terre Haute to Greencastle; that by virtue of the agreement contained in the ticket, and an endorsement on the back of it, he took passage on one of
The third paragraph contains some other allegations, but as no question is made as to the sufficiency of that paragraph, we do not consider it necessary to state them.
Separate demurrers were filed to each paragraph of the complaint, which were overruled, and exceptions taken. An answer of general denial was then filed. The cause was tried by a jury, who rendered a verdict for the appellee, and assessed his damages at two thousand five hundred dollars. The appellant filed a motion for a new trial, which was overruled, and judgment was rendered upon the verdict. Proper exceptions were taken.
Several reasons are set out in the motion for a new trial. The second is, that the verdict is not sustained by sufficient evidence.
4. Errors of law occurring at the trial, and excepted to by the appellant at the time.
Two of the alleged errors relate to the admission and exclusion of evidence. One, that the court refused to give certain instructions asked by the appellant; another, that the court gave certain instructions over the objection and exception of the appellant; and another that the court gave the jury only one form of verdict, and that for the plaintiff. Other errors are complained of, but under the rulings of this court they are not sufficiently explicit to raise any question, and hence need not be noticed.
The errors assigned are:
2. In overruling the motion for a new trial.
The objection to the first and third paragraphs of the complaint is waived; but it is urged that the demurrer to the second should have been sustained, for the reason that there is no averment that, before the removal from the train, the appellee exhibited or tendered his ticket to the conductor, or even had it in his possession; nor that the conductor, or any of the servants of the appellant, knew that he had it in his possession.
It is alleged, that since the purchase of the ticket the appellee had not travelled one thousand miles on the road, by virtue of the agreement; that the appellant well knowing that he was so entitled to be conveyed, but maliciously and fraudulently contriving to defraud and injure him, wholly refused to permit the appellee to travel on the train after receiving him in one of the cars composing the train, for the purpose of travelling upon and being conveyed as a passenger; and that when the train had run ten miles from the place where he had entered the car as such passenger, he was violently, rudely, angrily, and maliciously seized upon by the conductor of the train, one of the appellant’s servants, and by four others of its servants, and dragged from his seat through the cars, and thrown and pushed prostrate upon the ground, and finally left at Brazil, more than twenty miles from his place of destination; that he was not guilty of any disorderly conduct, and did not violate any of appellant’s rules.
We think the paragraph in question good, and the demurrer to it correctly overruled. The company was liable for the wilful acts or torts of the conductor, and its other servants acting under him, in ejecting the appellee from the car. His expulsion was within the general scope of the employment and authority of the conductor. The Jeffersonville R. R. Co. v. Rogers, 38 Ind. 116. The gravamen of the action was the violent and malicious expulsion, and not the breach of the contract to carry..
Before stating or considering the alleged error in giving
On the 15th of September, 1870, the appellee* applied to the proper agent of the appellant, to purchase one of these tickets, representing, as the agent testified, that he was an •agent of an emigrant colonization society, and the appellee testified that he had been such agent, in answer to a question relative to his business. The ticket was sold to
« CONDITIONS.
“ The person purchasing this ticket does so with the express agreement that the same is not transferable, and that he will use the same within-months from its date. Should it be presented after the time specified, or by any other person, the conductor is authorized to take up this ticket, and return it to the general ticket office of the company. The miles travelled each trip to be indicated by conductor punching out corresponding figures on the opposite side.
“ I accept the above conditions, and have purchased this ticket with a full ••understanding of the same. .
“September 15th, 1870. N. W. Fitzgerald.”
He travelled over the road and used the ticket until all the red figures and many of the black ones had been punched out. According to his testimony, he had travelled and used the ticket from Indianapolis to Greencastle, a distance of forty-one miles, and back, from four to six times. On two •or three occasions, after the red figures were all punched out, he travelled on the cars of the appellant on the eastern •division of the road, and offered the ticket as evidence of his right to travel on it, and offered to permit the conductor to punch the black figures for the number of miles travelled. The conductors uniformly refused to accept the ticket as fare, or to punch the black figures. Once he paid his fare, and on his statement that red figures had been punched for travel on the western division, the superintendent refunded the amount paid; and once a conductor allowed him to ride without paying fare, rather than to eject him from the car. The evidence tends to show that he stated to the conductors •and to passengers that he understood his rights; that he was a lawyer, and had also taken counsel from the best lawyers in Indianapolis, and that it was necessary to enable him to maintain an action against the company for refusing to carry him as a passenger, that some force should be used in expelling him; and when the conductors urged him to pay his fare, he peremptorily refused to do so, and told them to put him off.
On the 10th of January, 1871, he took passage at Terre Haute to go, on the eastern division of the road, to Green-
There is considerable conflict in the evidence touching the-manner of the expulsion of the appellee from the car, the force used, and the injury sustained by him as the result of such expulsion. It will be unnecessary to notice it, however, in this opinion.
The court gave the following instruction to the jury:
“ The special written contract embodied in the ticket in; evidence, and subscribed by the parties, the court instructs you, entitled the plaintiff to travel a distance of one thousand miles over the whole line of railway under the defendant company’s management, from the city of Indianapolis, to the city of St. Louis, subject only to the condition not to-transfer the ticket, and to permit the conductor to punch out the numbers corresponding to the miles travelled, without regard to the division or part of the road upon which he might choose to travel, and without regard to the color of the numbers remaining unused. The direction to the conductors printed upon the face of the ticket, to punch out the red figures for the miles travelled on the east division,, and the black figures for those travelled on the west division of the line of road, formed, in the opinion of the court, no-part of the contract binding upon the plaintiff; but even conceding that it did, it could not be extended beyond its terms; and, by its terms, it would only amount to an assent by the plaintiff to the miles travelled being so indicated when
“ It follows, from the interpretation I have given of the contract, that his expulsion was wrongful, and that for such wrongful act, and all injurious consequences resulting therefrom, the plaintiff is entitled to damages at your hands.”
The instruction was excepted to, and its correctness is called in question by the motion for a new trial and the assignment of errors.
As we have seen, the line of railroad over which the appellee was authorized to travel one thousand miles by virtue of his ticket, was composed of the roads of two companies., Ordinarily, this might not be very material; a passenger ticket issued by the company for a single trip would show on its face the stations to and from which the person holding it would be authorized to use it. So a ticket authorizing the holder to travel one thousand miles containing one set of figures only, and nothing upon it indicating what part of
The instruction erroneously assumes that the statement relative to punching out figures formed no part of the ticket. In our opinion, it made no difference that the statement was on the side of and not above the name of the agent. It was upon the ticket and as much a part of it as if the agreement had read as follows:
“ Gen’l Ticket Agent.”
“ The meaning of an agreement is to be sought in all the words contained within the four corners of the instrument, and the order of the words, and the place they occupy in the paper, is not essential so long as they are placed therein, to evidence the actual agreement of the parties, and as a part of the contract.” Benedict v. Cowden, 49 N. Y. 396. In that case a memorandum at the bottom of a note had been cut off and the note without the memorandum sold to an innocent purchaser. It was held that the maker might show that he signed the note with an understanding that the memorandum should be considered as part of the note, and that signing above would be the same as if signed below. The court held that the memorandum was a substantive part of the note and qualified it as if inserted in the body of the instrument.
In Platt v. Smith, 14 Johns. 368, it was held that words written in the margin of an award by the arbitrators in a distinct sentence are to be considered as a part of the award and to receive the same construction as if inserted in the body of it. The court says : “The words form a distinct sentence, and the meaning is the same, whether they be read in one place or another, after any distinct sentence.” And see Reed v. Drake, 7 Wend. 345; Springfield Bank v. Merrick, 14 Mass. 322; Barnard v. Cushing, 4 Met. 230; Shaw v. Methodist Epis. Society, etc., 8 Met. 223; Hartley v. Wilkinson, 4 M. & S. 25; Johnson v. Heagan, 23 Maine, 329; Osborne v. Fulton, 1 Blackf. 233; Fletcher v. Blodgett, 16 Vt. 26. In the case last cited, it was held that a memorandum ■on the margin of a promissory note, made at the time of signing, will be considered a part of the note, if it contain
)“ $41.50. Jericho, April 15,1840. For value received I promise to pay Frederic -Fletcher, or bearer, forty-one dollars fifty cents one day after date, with interest annually.
(Signed) "A. Blodgett.”
The body of the note, except the sum and date, was printed, and also the word “ payable” in the margin. It was held that the memorandum controlled the time and manner of payment. The court, on page twenty-nine, says: “ Courts must view these matters, in some sense, as business men do, else we could never hope to do justice between the parties to contracts. Contracts must be so interpreted as to speak the sense of the parties.”
How is it possible to suppose that the appellee at the time of purchasing the ticket considered that he had the right to travel the whole one thousand miles over one division of the road ? Pie could travel that distance on the road. But the fact that a certain set of figures were to be punched out for passage on one division, and those of another set on the other division, shows that by the contract he was entitled to-travel on that division to the extent and distance indicated by such figures and no more. He purchased the ticket with that, understanding. To hold that he could travel the whole distance upon either division, is to hold the appellant bound by a contract entirely different from the one which she intended to make. It would render that part of the agreement, that, the conductor should punch out the black figures for passage on the western division, and the red ones on the eastern division, entirely unmeaning. By the return of the stub-annexed to the ticket, and which the conductor was directed to take up and return to the general ticket office, the western division would get credit for its share of the amount
The view which we have taken of the contract renders it unnecessary for us to consider the right of the appellant to introduce parol evidence to aid in its interpretation. Some other questions are also discussed by counsel, but as the judgment must be reversed on account of the erroneous-instructions before quoted, they become unimportant, and we need not consider them.
The judgment of the said Shelby Common Pleas is reversed, with costs. The cause is remanded, with instructions to the court below to grant a new trial, and for further proceedings in accordance with this opinion.
Petition for a rehearing overruled.