Boling v. St. Louis & San Francisco Railroad

88 S.W. 35, 189 Mo. 219, 1905 Mo. LEXIS 71

• Court: Supreme Court of Missouri
• Decided: June 6, 1905
• Status: Published

Opinion

GANTT, J.

This is an action by Mrs. Julia M. Boling, who resides at Claremore, Indian Territory, against the defendant company, for damages for being ejected from one of its trains at Pacific, Missouri, April 6, 1900. The petition alleges the purchase of a railroad ticket from the defendant company at Joplin, Missouri, entitling her to passage from Joplin to Chickamauga, Georgia, and return, and then alleges that “before beginning her return passage, said ticket was duly signed by her, and her signature witnessed and the same countersigned by the agent of the defendant’s connecting line at Chickamauga, Georgia, and that at the times hereinafter stated, said ticket entitled plaintiff to return over said lines of railway to Joplin, Missouri; that she began her return passage on the 5th day of April, 1899, and on the night of April the 6th, 1899, at St. Louis, Missouri, she took passage upon and entered one of the defendant’s trains leaving St. Louis, the same being a regular passenger from said city to Joplin; that near a station of defendant’s said railway, called Pacific, and while she was rightfully on said train, the conductor in charge thereof rudely and wrongfully deprived her of said ticket and the use thereof by taking it up, and denying her transportation thereon, and wrongfully, willfully and insultingly expelled and ejected her from said train; that in consequence she was compelled to- use the small amount of money she had to obtain other transportation to her home, and being among strangers, was compelled to go without food the next morning, and was put to great expense1, trouble and inconvenience, was injured in body and mind, and suffered great shame and humiliation, on account of all of which plaintiff says she has been damaged in the sum of five thousand dollars.”

In its answer the defendant admits it is a railroad and owns and operates the line of railways between St. Louis and Joplin, and is engaged in carrying passengers for hire thereon, but denies each and every other allegation in said petition contained.

The evidence in substance was that plaintiff, a married lady, was a resident of the town of Claremore, Indian Territory, on March 20, 1900', and on that date, went to Joplin, Missouri. She desired to go to Chickamauga, Georgia, to visit her sister, and bring back with her a little niece, five or six years old; she learned that the Erisco road, the defendant, herein, had on sale at Joplin excursion tickets from Joplin to Chickamauga and return; she endeavored to obtain one of these tickets from the agent at Claremore, but was unable to do so, and desiring to see Joplin, she went to that city, and there purchased one of those excursion tickets from Joplin to Chickamauga and return. The ticket was sold at a reduced rate. This ticket, in large type, reads, “Good for one first-dass passage to Chickamauga, Georgia, and return, when officially dated, stamped and presented with coupons attached subject to the following contract:

“1st. In selling this ticket and carrying baggage hereon, this company acts as agent and is not responsible beyond its own line.

“2d. This ticket will be good to leave starting point only on date of sale, as stamped thereon. It will then be good for going passage within fifteen days from date of sale as per final going limit punched in left-hand margin by selling agent.

“3d. Stop-overs will be allowed on going passage within the going of fifteen days. No stop-overs will be allowed on return trip.

“4th. It will not be good for return passage unless the holder identifies himself a,s the original purchaser to the satisfaction of the ticket agent at destination point by signature or otherwise, on any day within final limit of twenty-one days from date of sale, as stamped on back or written below. It will then be good for continuous return passage of the original purchaser, which shall be commenced on date of execution, as punched in right-hand margin hereof. ’ ’

The 9th clause is, “Unless all the conditions on this ticket are fully complied with, it shall be void.

“I hereby agree to all the conditions of the above contract.

“ J. M. Boling, Purchaser.

“Witness, J. A. Glassey, Selling Agent.

“Date of sale March 20th, 1900.”

The plaintiff commenced her journey from Joplin on the 20th of March, 1900, and arrived in Chickamauga, Georgia, on the 22nd, as indicated by punched marks on the left-hand margin of the ticket. On arriving at Chickamauga, Georgia, on the 22nd of March, and intending to visit relatives, some twelve miles in the country, and near Kingston, on another railroad leading into Chattanooga, Tennessee, and not wishing to return by way of Chickamauga, she inquired of the station agent of the Chickamauga, Rome & Southern Railroad, the last road over which she traveled to Chickamauga, if she could be identified, and have her ticket stamped by him at that time, so that she would not have to return to Chickamauga for that purpose when she got ready to return to her home in the Indian Territory. He assured her that she could, and there•upon she signed the ticket .before the ticket agent at that place, and he attested her signature, and dated the same March 22nd, 1900. This agent at Chickamauga was advised that she had just arrived, because she called on him for her baggage, which it appears had not arrived, but had been left in Chattanooga, when at her request he had the baggage sent from Chattanooga to Kingston direct on- another road. When plaintiff got ready to return to her home, she did not return to Chickamauga, but started from Kingston and went to Chattanooga. She began to use her ticket for return passage between Chattanooga and St. Louis, and it was honored by the other railroads until she -reached St. Louis, on April 5, 1900. On the evening of April 6th, plaintiff purchased of the Pullman Palace Car Company a sleeping car berth for herself and her sister, Miss Davis, and the little niece, and was allowed to pass through the gate at the Union Station on the presentation of her. ticket and into the sleeping car attached to one of defendant’s passenger trains, bound for Monett, Missouri. The conductor of this train was John Grillis. After the train started, and near Valley Park, a station some seventeen miles west of St. Louis, the conductor, Grillis, began taking up tickets in this sleeping car. Plaintiff’s sister, Miss Davis, had., her own and the plaintiff’s said return ticket and when the conductor came to her, she handed both to him, and thereupon he pronounced the ticket invalid. And at this point there is a conflict in the testimony as to what occurred between plaintiff and the conductor. The evidence of the plaintiff tends to show that after the conductor had seen plaintiff’s ticket he insinuated that she had not come by it properly; that he refused to make, any effort to find out whether the ticket was good; that he disputed the plaintiff’s word; that his manner was rude and insulting, and he wound up by confiscating the ticket and directing his porter to see that the plaintiff got off the train at Pacific; that when they reached Pacific, the porter came and got her grips and told her this.was the place to get off, and that she, her sister and little niece got off the train and went into the station at Pacific, and plaintiff purchased a ticket to Monett, and she and her sister and little girl took the next train, and arrived at Monett at the same time and made the same connections for her home in the Territory that she would have made had she remained on the train on which she first started.

On the part of the defendant the conductor, Gillis, testified that he refused to take the ticket because it had expired according to the limitations printed thereon, and that when he took it he gave her a receipt and explained to her fully that the rules of the company prevented him from permitting her to ride on the ticket, and that she must pay her fare, and if she did not have the money to do so, he would take her baggage check as security, and send it to the general office with the ticket with an explanation, and that if it was all right on reaching her destination at Claremore, she could get her baggage, and if it was not all right, she could call at the station in Claremore and pay the amount of fare and get her baggage; that he endeavored to persuade her to do this, and then left her and went-to the front of the train to finish taking up tickets, and supposed she would reconsider and pay her fare, though she had positively refused to do so; that he was at the front end of the car when they reached Pacific, and did not see her leave the train, and did not know that she and her sister had left the train until he went into the sleeper after the train left Pacific; that he did not direct the porter to see that she got off at Pacific, and that the train porter did not assist her in getting off, and had nothing whatever to do with the matter.

As to this latter statement the conductor is corroborated by the Pullman conductor, who testified that he told bet that if she intended to get off this was Pacific, and upon being informed by ber tbat sbe intended to get off and take tbe next train, be and tbe Pullman porter assisted them off tbe train, tbe porter carrying tbe baggage, and be tbe little girl; tbat neither conductor Grillis nor tbe train porter was present at tbe time plaintiff left the train; tbat be refunded or transferred ber Pullman ticket so she would have tbe full benefit of it on tbe next train.

Tbe conductor denied tbat be used any rude or insulting language to tbe plaintiff.

Miss Davis testified that when tbe controversy was going on between ber sister, tbe plaintiff, and tbe conductor, sbe went over to where ber sister sat, and ber sister said to ber, “ Tbe conductor says my ticket is no good, and wants to make me pay fare,” and thereupon tbe conductor turned to witness and began to explain about scalpers, bow expert they bad become in fixing up tickets and fooling tbe conductors, and sbe said to him, “Tbat is a scalper’s ticket?” He said, “Yes, madam, ’ ’ and I says, ‘ ‘ So you say your agent did not sell this ticket to ber at Joplin?” and be said, “No, sir, be did not,” and I said, “You are not a gentleman to dispute a lady’s word like tbat.” Sbe testified tbat bis tone “was just very insulting,” and tbat in this way be accused ber sister of telling a falsehood.

Tbe evidence tended also to show tbat under tbe rules of tbe company it was tbe duty of tbe conductor to refuse to honor tbe ticket and compel tbe passenger to either pay fare or retire from tbe train at tbe next station, and tbat if be bad violated this rule and accepted tbe ticket be would have bad to pay for it out of his own pocket.

Under tbe instructions of tbe court the jury returned tbe issues in favor of tbe plaintiff, allowing ber one hundred and twenty-five dollars as damages. Nine of tbe jurors concurred in this verdict and three were against it.

Other facts may be noted in the course of the opinion.

I. Under the recent decisions of this Court in Banc and of both divisions, had this appeal been taken to or transferred to this court after the decisions in Russell v. Croy, 164 Mo. 69, and Gabbert v. Railroad, 171 Mo. 84, in which it was held that the amendments to article 10 of the Constitution by adding thereto two sections to be known as sections 22 and 23, and to section 28 of article 2 were duly and legally adopted so far as the publication of the notices of the election and the submission of the same to the qualified voters was concerned, this appeal should be remanded to the St. Louis Court of Appeals, as the sole ground upon which it is transferred to this court is that the amendment to section 28 of article 2, permiting nine jurors in a civil case to make a verdict, was never legally dopted, but inasmuch as the appeal when taken fairly raised the constitutional' question whether such amendments had in fact become a part of the Constitution, and was taken prior to the settlement of that question by this court in the cases above cited, we will retain the appeal as properly in this court; otherwise, we would not. [Lee v. Jones, 181 Mo. 291; Carpenter v. Hamilton, 185 Mo. 603.]

II. On both sides it is conceded that this action is one sounding in tort, to-wit, the wrongful ejection of plaintiff from defendant’s train on the night of April 6, 1900, by one of the defendant’s conductors in charge thereof. The allegation as to the contract of transportation, to-wit, the ticket described in the petition, is matter of inducement to show that plaintiff was rightfully on the train and hence that her expulsion was unlawful. [Book v. Railroad, 75 Mo. App. 604; Railroad v. Reynolds, 55 Ohio St. 370; Railroad v. Roberts, 91 Ga. 513.]

At the root of the case lies the question whether the ticket which, plaintiff offered to the conductor entitled her to passage on the train, or by its terms had expired, and, therefore, the conductor was justified in demanding fare to Monett, and upon plaintiff’s refusal to pay fare, to require her to leave the train. The question is by no means a new one. It may, we think, be safely stated that the general rule is that when a passenger purchases a ticket for transportation from one point to another over the road of a common carrier and pays full or regular ordinary fare, the ticket is not intended as a contract itself, but as a mere token of evidence of a contract which .the law creates and which lies behind the ticket. In such case the law makes the contract and regulates the reciprocal rights and duties of both carrier and passenger, and the ticket is a mere token that such contract exists and under it the passenger is entitled to be carried to and from • the points named, without regard to time limit printed upon it. [Railroad v. Turner, 100 Tenn. 213; Potter v. The Majestic, 23 L. R. A. 746, note; Watson v. Railroad, 56 S. W. 1024.]

On the other hand, it has been held by a number of the highest courts in the United States, including the Supreme Court of the United States, that when, as in this case, the ticket on its face purports to be a special contract of carriage, and is based upon a valuable consideration, that is to say, sold at a reduced rate, then the ticket itself constitutes a contract of carriage between the parties, and the provision limiting the time within which it shall be good, and providing that it shall be stamped as of the date when the return passage is commenced, by the ticket agent at that place, and that the holder of the ticket must identify himself or herself to such agent as the original purchaser thereof, and sign the same in his presence, and'the signing and attestation dated and indicated by punched marks on the ticket, and that such ticket should only be good for a continuous return passage commenced on that, date, is a reasonable regulation and binding upon the holder of such a ticket.

Thus, in Mosher v. Railroad, 127 U. S. 390, it appeared that the St. Louis, Iron Mountain & Southern Railway Company owned a railroad from St. Louis to Malvern, Arkansas, and the Hot Springs Railroad Company owned and operated a railroad from Malvern to Hot Springs, Arkansas, and the Iron Mountain Company sold a ticket at a reduced rate of fare for a passage from St. Louis to Hot Springs and return, and the ticket contained stipulations by which the purchaser agreed that in selling the ticket, the St. Louis, Iron Mountain & Southern Railway Company acted only as agent and was not responsible beyond its own line, and that the ticket was good for going passage only five days from the date of sale stamped on the back and written below, and would not be good for return passage unless the holder identified himself as the original purchaser to the satisfaction of the authorized agent of the Hot'Springs Railroad at Hot Springs, within eighty-five days from the date of sale, and when officially signed and dated in ink and duly stamped by said agent, the ticket should then be good only five days from said date, and it was expressly agreed that the purchaser would, whenever called upon, identify himself to any conductor or agent of the lines over which the ticket read, and that.no agent or employee of any of tbe lines named in the ticket had any power to alter, modify or waive any of the conditions named on the ticket, and- -it appeared that the plaintiff went to Hot Springs, and within the time limited by the ticket, desiring to return to St. Louis, presented himself and said ticket at the business and ticket office and depot of the Hot Springs Railroad, in the city of Hot Springs, during business hours, and a reasonable time before the departure of its train for St. Louis, for' the purpose of identifying himself as the original purchaser of said ticket, and of having the same officially signed, dated and stamped by said agent, but tbe Hot Springs Railroad Company failed to have said agent there at any time between the time when the plaintiff so presented himself and his ticket and the time of departure of the train, whereby as it was alleged, the Iron Mountain Company and its agent and the agent of the Plot Springs Railroad at Hot Springs, without any just cause or excuse, failed to identify plaintiff as the original purchaser or to officially sign, date and stamp said ticket, and the plaintiff thereupon boarded the train of the Hot Springs Railroad and was carried thereby to Malvern, where on the same day, he boarded a regular passenger train of the Iron Mountain Company for St Louis, and upon the conductor demanding his fare, presented his ticket, and informed the conductor of the failure of the agent at Hot Springs to be at the office so that he could identify himself, and offered to sign his name and otherwise identify himself to the conductor, and demanded to be carried to St. Louis by virtue of his said ticket, but the conductor refused and put him off the train, it was held that the ticket was a valid contract and binding upon the holder thereof, and by its express terms the plaintiff had no right to a return passage under the ticket unless it bore the stamp of the agent at Hot Springs, and that such a stamp was made by the contract a condition precedent to the right of a return passage, and no agent or employee of the defendant was • authorized to waive that condition. It was held that by the first condition of the contract, the defendant was not responsible beyond its own line, and was not responsible to plaintiff for failing to have an agent at Hot Springs; that by the contract, the agent who was to identify plaintiff and stamp his ticket was the agent of the Hot Springs Railroad Company, and it was the duty of that company to identify plaintiff and not the defendant; that the conductor of the defendant’s train had no authority to dispense with the want of such stamp, or to inquire into the previous circumstances.

The rule announced in that case was reasserted in Boylan v. Railroad, 132 U. S. 146, and it was further held that the purchaser of a ticket from a railroad company at a reduced rate of fare for passage to a certain station and hack, containing a contract signed by him that the ticket should not be good for return passage unless stamped by the agent of the company at that station, and that no agent of the company was authorized to alter or modify any condition of the contract, was bound by those conditions, whether he knew them or not, and neither the action of the baggage master in punching the ticket and checking the plaintiff’s baggage, nor that of the gateman in admitting him to the train could bind the defendant to carry him or estop it to deny his right to be carried.

To the same effect see Watson v. Railroad (Tenn.), 56 S. W. 1024; Edwards v. Railroad, 81 Mich. 364; Bowers v. Railroad, 27 Atl. 893; 4 Elliott on Railroads, sec. 1593, p. 2484; Pennington v. Railroad, 62 Md. 95; Railroad v. Stockdale, 83 Md. 245, and cases cited; Moses v. Railroad, 73 Ga. 356.

In the last-cited case the circumstance noted by the plaintiff on this appeal, to-wit, that the St. Louis, Nashville and Chattanooga Railroad Company accepted plaintiff’s ticket on her return and waived the limitations as to time in the contract, was commented on by C. J. Jackson, who said: “The ticket passed him over two roads; but each had a right to stand on. the contract. If one passed him, the other was not bound thereby to pass him also, in the teeth of the contract he had made.” See, also Dangerfield v. Railroad (Kan.), 61 Pac. 405; Comer v. Foley (Ga.), 25 S. E. 671; Abram v. Railroad, 83 Tex. 61; Rahilly v. Railroad, 66 Minn. 153.

It is asserted, however, by the plaintiff in this case, that this line of authority is not the law in this State, and we are cited to McGinnis v. Railroad, 21 Mo. App. 399, and to Cherry v. Railroad, 52 Mo. App. 499, as sustaining this contention. It is evident, however, from the reading of those cases that neither of them reached the point now under discussion. In the Cherry ease, the passenger had purchased a first class passenger ticket which read, “Good to stop over at all points.” It was held that this justified the passenger in stopping off at a station short of his destination and subsequently within the life of the ticket taking another train to his destination and though on his presentation to the conductor of his ticket with notice . of his intention to stop over, the conductor took up the going coupon and gave no check or token in lieu thereof, the passenger’s rights were not affected and the same conductor with a knowledge of all the facts was not justified in ejecting him from the train on his subsequent resumption of his journey. With that case we are entirely satisfied. The passenger had complied with every condition on his part and had violated no rule of the company, .and the same conductor who had wrongfully taken up the going coupon without preserving to the passenger any evidence of his right to resume his journey after the stop over, with a full knowledge of all the facts and a personal acquaintance with the passenger, wrongfully ejected him.

In the McGinnis case, the passenger .held a return ticket, but the date of it was blurred and the conductor was of the opinion that there had been an alteration in the date, and for that reason refused to honor the return coupon, but the ground of recovery was that it turned out that the blurring of the ticket was caused by the defendant’s own agent in dating it when he sold it, and the rude and offensive and insulting manner of the conductor in ejecting the plaintiff. That case likewise does not reach the point before us.

In Railroad v. Deloney, 65 Ark. 177, the authorities are collected with much industry and the conclusion reached that the efforts of the court to reconcile the conflicting views as to the right of the conductor, in collecting tickets and fares, to rely entirely upon the face and appearance of a ticket presented to him, in determining his duty as to the acceptance of the same, had not met with any degree of success. In that ease it was held that, notwithstanding the conductor had only carried out the company’s rules and regulations, and that they were reasonable, and he, therefore, was blameless, personally, inasmuch as the company which was sued, through its ticket agent, acting for it, had been guilty of doing that which produced the injury to the plaintiff, it was liable for.such neglect and could not shield itself behind the faithfulness of its servants, the conductor. We think that decision was unquestionably correct and was but the application of the common laAV of principal and agent. In that case the company was rightfully held responsible for the natural and reasonable consequence of the neglect of its own agent, but that case does not reach the question before us, whether the defendant company in this case is responsible for the neglect of the plaintiff toread the contract on her ticket, and in not complying therewith, and the mistake or negligence of the agent of the connecting line at Chickamauga, Georgia. It is plain that no such question was involved in the Deloney case, 'supra.

We have laboriously gone through the long line of cases cited to us by respondent, and find that in most of them the action was directly against the company whose agent had been guilty of the neglect or negligence which produced the inconvenience and injury to the passenger, or were cases in which the ticket was apparently regular on its face and the passenger misled thereby, and various other circumstances in. AAdiich it was held that the defendant company was liable for the wrongful and negligent acts of its own servant, and in our opinion, without attempting a review of all those cases or reconciling them, they are clearly distinguishable from the facts upon which this case is bottomed, and the correct doctrine is stated in Mosher v. Railroad, 127 U. S. 390, and Boylan v. Railroad, 132 U. S. 146. We think the provisions of the ticket, in this case, were reasonable regulations and that the agent at Chickamauga had no authority to bind the defendant company by waiving any of the contract provisions which enured to thé benefit of all the roads which were parties to that contract, and the fact that the other roads waived the conditions in no manner affected the defendant’s rights. By the terms of the contract, plaintiff was only entitled to a continuous return passage within the limits of the ticket commencing on the date that she was identified and the ticket stamped' and punched at Chickamauga for the return passage, and consequently when it was presented to the conductor of defendant’s road on the 6th of April, 1900, it had expired according to the limitations plainly written thereon, and did not entitle plaintiff to a passage from St. Louis to Monett, and the conductor was justified in refusing to accept the ticket for passage between those points. And it is no justification of plaintiff’s insistence that she had not read the contract which she had signed. The stipulations of the contract were plainly printed on the face of the ticket in a way not calculated to escape observation, and the plaintiff’s own evidence shows that she knew she was receiving a special rate, and went to Joplin for the express purpose of getting atieket for a reduced fare, and under the circumstances it was her duty to read it when she received it, and in the absence of proof of fraud, imposition or deceit, the law presumes she had knowledge of its contents, and must be held to have assented to the terms thereof. [Snider v. Adams Ex. Co., 63 Mo. l. c. 383; Watson v. Railroad, 56 S. W. 1024.]

Hence, the instruction given for the plaintiff as to the right of the plaintiff to rely upon the statement made by the agent of the Chattanooga, Rome & Southern Railroad that she could be identified and have said ticket stamped on the 22nd of March, 1900, and it would be good for her return passage at a later date, was erroneous.

But notwithstanding plaintiff had no right to passage over the defendant’s road by virtue of said ticket, after the same had expired by virtue of its limitations and the failure of plaintiff to comply with the provisions of her contract with defendant, and while we think that when plaintiff was notified of the invalidity of the ticket and refused to pay the fare to Monett, the conductor had the right to remove her from the train, he had no right to use unnecessary and insulting language to her and thereby hurt her feelings and humiliáte her, and if he did so, she was entitled to recover compensatory damages for such injured feelings and humiliation, but nothing in the way of punitory or exemplary damages. There is no pretence that the conductor offered the plaintiff any personal violence, or that any other servant of the company did; on the contrary it appears that the Pullman conductor and his porter rendered her every assistance that was possible when she left the train. If plaintiff’s evidence is to be accepted, her leaving the train in obedience to the command of the conductor to the porter to see that she got off at Pacific, must be regarded as an ejection from the train, and she very properly avoided the humiliation of being forcibly removed from the train; if, however, plaintiff left the train of her own free will and accord and against the advice of the conductor and refused to remain on the train and permit the conductor to hold her baggage check as security for her passage, if the general officer of the company should agree with the conductor that her ticket had expired, or if they should decide the ticket was good, then she need not pay any other fare, then there was no ejection from-the train within the meaning of the law, and plaintiff has no cause of action whatever against the company. That plaintiff suffered no appreciable damages in. the way of delay in reaching her home, or of any discomfort by changing from one train to another, is perfectly apparent.

Prom the statement of facts in this case it must be apparent that the liability of the defendant in this case hinges upon the consideration whether the agent at Chickamauga of the connecting lines was the agent of the defendant in this case, hy reason of the contract of carriage over the several lines mentioned in the ticket, and what force is to be accorded to the clause stipulating that the defendant in this case acted simply as agent and was not responsible beyond its own line. If the defendant is to be held as agent for all the other roads over which this ticket reads, then there is much reason and authority for holding it liable for the misleading representation of the agent at Chickamauga waiving the agreement that the ticket should be stamped and the passenger identified on the day of the commencement of the return passage. If, on the other hand, the ticket and contract therein properly construed is the separate contract of each of the companies over which it reads, and the defendant in issuing the ticket is to be held only as an agent of the others and not responsible for their defaults, then we can discover no legal' reason why the defendant should be held responsible for the misrepresentation of the agent of the connecting line at Chickamauga. Judge Elliot in his work on Railroads, vol. 4, sec. 1596, says: “There is some conflict among the authorities upon the subject of through tickets over several different roads, but the rule which is supported both by the better reason and by the weight of authority is that even when the ticket does not expressly provide that the first company is acting for the other companies merely as their agent in selling it, the rights of the passenger and the duties and responsibilities of the different companies are substantially the same as if the ticket had.been purchased at the office of each company separately, unless there is something in the contract making the first company responsible beyond its own line.” And this statement of the law is supported by the decision of the Supreme Court of the United States in Mosher v. Railroad, 127 U. S. 390, already noted, and Mr. Hutchinson in his work on Carriers, section 152, endorsed this statement of the rule, and to the same effect is Railroad v. Looney, 85 Tex. 158; Harris v. Howe, 74 Tex. 534; Central Trust Co. v. Railroad, 65 Fed. 332. The only case directly in point opposing this statement of law is that of Head v. Railroad, 79 Ga. 358. In that case, it is true, the learned and distinguished jurist, C. J. Bleckley, upon a similar ticket, held that the agent at New Orleans, the point of the destination, was the representative of the selling company, but he enters into no discussion whatever of the principle upon which he bases this conclusion, and profound as is our respect and admiration for that gifted jurist, we think his conclusion is opposed by the great weight of authority and the elementary principles of the law of principal and agency. Moreover, we think that the Supreme Court of Georgia could have reached the conclusion which it did by applying the doctrine of numerous cases on this subject and holding that it was clearly the mistake of the selling agent at Tallapoosa, in placing the stamp on the wrong margin and in having the passenger sign at the wrong place, and the action in that case was properly against the selling company for its own default and the damages resulting therefrom.

Our conclusion is, that the agent at Chickamauga was not the agent of the defendant in this case and that the defendant cannot be held responsible for his neglect or misconstruction of the contract, and that the conductor of the defendant was bound under the rules- and regulations of the defendant to decline to recognize said ticket after it had expired according to the-contract embodied in it.

And as already said, we can see no possible ground upon which plaintiff can recover of this defendant save and except that the conductor, in the performance of a perfectly legal right, performed it in a rude or insulting manner, as to which the evidence is in strong conflict, and in such case, is a question of fact for the jury. As the judgment of the circuit court must be reversed for the reasons above given, it becomes unnecessary to decide whether the verdict in the form in which it was rendered would constitute reversible error, as that objection can be readily obviated on another trial by the court requiring the jurors to sign the verdict as required by the act of 1901 (Laws 1901, p. 190). The judgment is reversed and the cause remanded to be proceeded with in accordance with the views herein expressed.

All concur.