Callaway v. Mellett

44 N.E. 198, 15 Ind. App. 366, 1896 Ind. App. LEXIS 155

• Court: Indiana Court of Appeals
• Decided: May 26, 1896
• Docket: No. 1,485
• Status: Published

Opinions

Ross, J.

The appellee sued and recovered judgment in the court below, in the sum of $500.00, against Samuel R. Callaway, receiver of the Toledo, St. Louis & Kansas City Railroad Company. Since perfecting this appeal, said Callaway has resigned as such receiver, and R. B. F. Peirce has been appointed in his stead, and substituted as the party appellant herein.

Two specifications of error have been assigned in this court, the first being’ that “The court erred in overruling the demurrer to the complaint,” and the second, that “The court erred in overruling the appellant’s motion for a new trial.”

No objection to the sufficiency of the facts alleged in the complaint to constitute a cause of action, has been pointed out, hence the first specification of error is deemed waived. Counsel do urge, however, that the facts alleged, and upon which this action is predicated, sound in both contract and tort, and are so blended that it is impossible to determine upon which theory the complaint proceeds.

It is well settled, that a complaint must proceed upon a single definite theory. Pennsylvania Co. v. Clark, 2 Ind. App. 146; Hasselman v. Development Co., 2 Ind. App. 180; Carter v. Lacy, 3 Ind. App. 54; Thompson v. State, ex rel., 3 Ind. App. 371; W. U. Tel. Co. v. Reed, 96 Ind. 195; Leeds v. City of Richmond, 102 Ind. 372; Moorman v. Wood, 117 Ind. 144; Jackson v. Landers, 134 Ind. 529, and that the plaintiff must recover “secundum allegata et probata,” or not at all. Louisville, etc., R. W. Co. v. Renicker, 8 Ind. App. 404; Boardman v. Griffin, 52 Ind. 101; Terry v. Shively, 64 Ind. 106; Thomas v. Dale, 86 Ind. 435; Cleveland, etc., R. W. Co. v. Wynant, 100 Ind. 160; Bremmerman v. Jennings, 101 Ind. 253; Hasselman v. Carroll, 102 Ind. 153; Brown v. Will, 103 Ind. 71; Chicago, etc., R. W. Co. v. Burger, 124 Ind. 275.

“The object of pleading is to present, in a distinct and definite form, questions of fact for trial, and this object cannot be accomplished unless parties are required to state positively the facts upon which they rely, and in accordance with a distinct, definite and controlling theory. If ambiguous pleadings are tolerated, no issue can be framed which will present, in an intelligible form, question's for trial, and perplexity and confusion will necessarily result. It is no great hardship to require obedience to rules of pleading and logic, and not to do so will result in the evil of leaving disputants without a direct issue, and the court without the means of determining the competency or relevancy of evidence. In order to bring the parties to an issue, it is necessary to require them to make their pleadings conform to some definite theory, and to be sufficient upon that theory.” Says Elliott, C. J., in the case of Western Union Tel. Co. v. Reed, supra. And, again, the same court, in the case of Chicago, etc., R. R. Co. v. Bills, 104 Ind. 13, says: “It is essential to the formation of issues, and to the intelligent and just trial of causes, that a complaint should proceed upon a distinct and definite theory. It would violate all rules of pleading to permit a complaint to be construed as best suited the exigencies, of the case; to allow such a course of procedure would produce uncertainty and confusion, and materially trench upon the right of the defendant to be informed of the issue he is required to meet. The rule is, that the complaint must proceed on a distinct and definite theory, and upon that theory the case must stand or1 fall.”

A complaint should not be so drafted that it is susceptible of more than one construction. It cannot be made elastic, so as to bend or take form with the varying views of counsel. Mescall v. Tully, 91 Ind. 96; Toledo, etc., R. R. Co. v. Levy, 127 Ind. 168.

In order that there may be no changing front, as it were, as the cause proceeds, the facts alleged should be so clearly stated and free from uncertainty or ambiguity, that the theory upon which the pleading proceeds cannot be mistaken. But when the facts pleaded are such that they are susceptible of more than one construction, so that they may be construed as proceeding upon different theories in the statement of a cause of action, the construction placed upon them by the trial court will be the theory upon which they will be considered by this court on appeal. Cleveland, etc., R. R. Co. v. DeBolt, 10 Ind. App. 174.

The theory upon which the complaint proceeds is, as we view it, to recover damages from the appellant, for a tortuous breach of its contract of carriage, resulting in the appellee’s wrongful expulsion from its train.

There is little, if any, conflict in the adjudicated cases that, as between the passenger and the conductor, the face of the ticket is conclusive evidence of the passenger’s right to ride. Bradshaw v. Railroad Co., 135 Mass. 407; McKay v. Railway Co., 34 W. Va. 65, 11 S. E. Rep. 737; Townsend v. Railroad Co., 56 N. Y. C. A. 295; Frederick v. Railway Co., 37 Mich. 342; Shelton v. Railway Co., 29 Ohio St. 214; Dietrich v. Railroad Co., 71 Pa. St., 432; Petrie v. Railroad Co., 42 N. J. Law, 449; Railroad Co. v. Griffin, 68 Ill. 499; Hall v. Railroad, Co., 15 Fed. Rep. 57; Weaver v. Railroad Co., 3 Thomp. & C. 270; Pennington v. Railroad Co., 62 Md. 95; Johnson v. Railroad Co., 63 Md. 106; Peabody v. Navigation Co., 21 Ore. 121, 26 Pac. 1053; Vandusan v. Railway Co., (Mich.) 56 N. W. Rep. 848; Railroad Co. v. Bennett, 1 C. C. A. 544, 50 Fed. Rep. 496; Jerome v. Smith, 48 Vt. 230; Downs v. Railroad Co., 36 Conn. 287; Mosher v. Railroad Co., 127 U. S. 390, 8 Sup. Ct. Rep. 1324; Boylan v. Railroad Co., 132 U. S. 146, 152 Sup. Ct. Rep. 50.

Under the earlier adjudications, it was held that a railroad ticket was merely a receipt,, or token,.. evL denting the payment of passage-money, and showing that the purchaser had paid the toll entitling him to ride from one point to another. Hibbard v. Railroad Co., 15 N. Y. 455; Dietrich v. Railroad Co., 71 Pa. St. 432; Rawson v. Railroad Co., 48 N. Y. 212; Railroad Co. v. Bartram, 11 Ohio St. 457. The later holdings, however, are that the ticket is the contract between the purchaser and the railroad company. Sleeper v. Railroad Co., 100 Pa. St. 259; New York, etc., R. W. Co. v. Bennett, 50 Fed. Rep. 496; Mosher v. St. Louis, etc., R. W. Co., 127 U. S. 390, 8 Sup. Ct. Rep. 580; Boylan v. Hot Springs R. R. Co., 132 U. S. 146, 10 Sup. Ct. Rep. 50.

And our own Supreme Court, in the case of Terre Haute, etc., R. R. Co. v. Fitzgerald, 47 Ind. 79, held that the terms expressed on the ticket constituted a contract between the company and the purchaser, and that he was bound thereby.

If a ticket is to be considered merely as a receipt, or voucher, for money paid in consummation of the passenger’s part of a contract entered into, whereby the carrier agreed to transport him from one place to another, the right to demand passage upon its presentation must be limited to the person who paid the money and received the ticket, for it is with such person only that the- carrier contracted. And the mere delivery of the ticket to another would not transfer the rights of the transferrer to the transferee, and the carrier- would have no contract to fulfill with the latter, because he made no contract with him. The rights of one party under a contract cannot be thus, transferred. True, the law imposes upon the railroad company the duty of accepting and carrying all proper persons who apply for passage from one station to any other station on its line, but it also permits the company to regulate, in its own way, the manner of receiving and carrying such applicant. The ticket is evidence of the terms and regulations upon which the company agrees to carry; and,when the passenger has accepted the ticket, he is bound by its terms as much as if he had, by formal agreement, entered into such contract with the company.

We must, therefore, give to a ticket, a more extensive signification than a mere receipt or voucher. A receipt or voucher, strictly speaking, has none of the elements of a contract, for it does not require of the issuer the performance of any obligation or duty, it is simply evidence of payment or delivery. Krutz v. Craig, Admx., 53 Ind. 561. And this court, in Landers v. Fisher, 2 Ind. App. 64 (66), says: “A receipt proper is but the written acknowledgment off the person signing it, that the money or property mentioned in it was delivered to him.”

A mere receipt may be explained, controlled, qualified or even contradicted by parol evidence. Pauley v. Weisart, 59 Ind. 241; Beedle v. State, ex rel., 62 Ind. 26; Lash v. Rendell, 72 Ind. 475; Landers v. Fisher, supra. But when it is so drafted as to impose an affirmative obligation upon either party, it amounts to a contract, and must be construed, and the rights and obligations of the parties thereunder determined, by the law of contracts in general.

The custom of railroads, in the transportation of passengers, to use tickets which entitle the holder, except in special cases, to be carried upon the terms designated thereon, has become so much a part of the business itself, as to be recognized as a part of the law of the land. The purchaser of a ticket does not, ordinarily, enter into any special negotiations by which the carrier undertakes to carry him, for the custom established by the carrier and those doing business with him, has fixed the terms upon which he may be carried, and if he accepts a ticket limiting the time within which he may use it for passage, or designating the train upon which it shall be used, he is bound thereby. This custom is established, and all seeking transportation are bound to take notice of it.

Of course, the contracts of carriage may be general or special. For instance, the carrier may offer a ticket good upon certain trains within a specified time and to be used only by the person purchasing it, and upon such terms as are embraced therein, such a ticket, unless it is the kind regularly issued to all patrons applying for passage, is special, and must be denominated as such. And when a passenger knowingly accepts a ticket containing limitations, and imposing upon him certain duties to make it available for passage, he is bound thereby. The ordinary ticket, entitling the holder to passage, embraces within its terms the duty which the law imposes upon the carrier to accept and carry, and general rules and regulations of the carrier, and the payment and acceptance of the fare necessary to entitle the purchaser to be carried. All of these elements are ingredient parts of the contract evidenced by the ticket issued by the carrier to the passenger.

It appears, from the undisputed evidence in this case, that the appellee applied to the appellant’s ticket agent at Frankfort, for a ticket, entitling him to ride on appellant’s train from Frankfort to Kokomo, and that he paid therefor the usual and ordinary amount required for a general passage ticket; that the agent gave him an unused coupon of an excursion ticket, but when the ticket was given to him he asked the ticket agent why he was giving him such a ticket, and the agent assured him that it was all right, and would be accepted by the conductor for his passage from Frankfort to Kokomo. It also appears that the appellant’s station, or depot, at Frankfort, where the ticket was purchased, was so poorly lighted that appellee could not read what was printed or stamped on the ticket, but that relying on the ticket agent’s assurance that the ticket was all right, he accepted it, and getting upon the first train going to his destination, tendered it to appellant’s conductor, who examined it, and refused to accept it for passage, because it had, as shown on its face, become worthless for passage on account of the expiration of the limit designated thereon for its use.

When a purchaser accepts a ticket which he knows, or by the use of ordinary care he could ascertain, is not good for passage under the rules and regulations of the carrier, he cannot insist on being carried thereon; and in the event be is ejected for not having a valid ticket, recover damages for such expulsion. There are cases holding that where the railroad company’s ticket agent, by reason of his negligence, mistake, or inadvertence, has given the purchaser the wrong ticket, the purchaser may recover damages from the company if he is refused passage on his ticket, but those cases all proceed upon the theory that the passenger was wholly without fault. This rule is eminently proper and just to both parties, for the carrier should answer for the mistakes or negligence of its agents, to parties doing business with such agents, when the parties are free from fault.

The appellee, in good faith, and without any fault on his part, accepted from appellant’s ticket agent at Frankfort, a ticket which such agent assured bim would, be accepted for his passage, and, having no means of ascertaining that the ticket was not good for that purpose, he took passage on appellant’s train. Under such circumstances, the appellant is liable. Appellee paid for a ticket which would entitle him to ride on appellant’s train from Frankfort to Kokomo, and, when he saw that the ticket agent was giving him a ticket which he knew was not the ordinary ticket used, he asked the agent why he was giving him an excursion ticket, and the agent assured him it was good and would be accepted by the conductor for his passage. It was not only right and proper, but it was appellee’s duty, when he saw and knew that the ticket tendered him was not the ordinary or regular ticket used for- passage, to inquire of the agent why he gave him such a ticket, and he had a right to rely upon the representations of the agent that it was good and would be accepted by the conductor, unless he knew that the limit of its use had expired. There is no evidence that he had such knowledge; on the contrary, it appears that he did not know it. He was, therefore, free from fault.

The only other question which has presented any serious doubt in our minds is, as to whether or not the appellee was entitled to recover in this action exemplary or punitive damages.

It is true, that in actions for breach of contract, exemplary or punitive damages are allowable only where the act complained of has been committed willfully and maliciously, or, in the absence of actual malice, where it has been committed under circumstances of violence, oppression, outrage, or wanton recklessness. Philadelphia, etc., R. R. Co. v. Orbann, 119 Pa. St. 37; Railroad Co. v. Slusser, 19 Ohio St. 157; Railroad Co. v. Quigley, 21 How. 202; Patry v. Railroad Co., 77 Wis. 218; New York, etc., R. W. Co. v. Bennett, supra.

And it is also true, that while, as between the conductor and the appellee, under the rules, the latter had no right to insist on being carried on the ticket tendered, and yet, under the facts disclosed in this case, he was rightfully on the train, hence, was wrongfully ejected; therefore, under the circumstances, the expulsion was wrongful.

Filed May 26, 1896.

We find no reversible error in the record.

Judgment affirmed.

Lotz, J., does not participate.