Evansville & Terre Haute Railroad v. Cates

41 N.E. 712, 14 Ind. App. 172, 1895 Ind. App. LEXIS 337

• Court: Indiana Court of Appeals
• Decided: October 16, 1895
• Docket: No. 1,592
• Status: Published

Opinions

Gavin, J.

The appellee, desiring to travel from Evansville to Terre Haute, over the appellant’s railroad, called upon its agent for a ticket to Terre Haute and paid him the regular price for such a ticket. By mistake the agent gave him a ticket to Yincennes only, believing it to be that for which he had asked, and without any fault or negligence upon his part, appellee boarded appellant’s train and surrendered his ticket. After passing Yincennes the conductor demanded additional fare, as his ticket only called for Yincennes. He explained that he had bought and paid for a ticket to Terre Haute and had given it to him and had no money to pay additional fare. Producing neither ticket nor money, he was ejected from the train, and for this sued and recovered damages in the court below.

The case stated is such as weJare required to consider established by the general verdict in appellee’s favor, taken in connection with answers to interrogatories.

Construing all the averments of the complaint together, we think it was not intended to count upon the ejection of a passenger who had a ticket good upon its face, hut that the gist of the complaint is, rather, the wrongful ejection of one actually entitled to he carried as a passenger upon the ticket presented. Such we think was evidently the construction placed upon it by both the court and parties as indicated by the briefs and verdict and interrogatories. The case will not therefore fall upon the theory that .there is a fatal variance because it appears that the ticket was not good upon its face for the ride demanded.

The position of appellant’s learned counsel is that the face of the ticket is conclusive as to the rights of the passenger and that the conductor is neither required nor permitted to listen to and regard any explanations or statements by which the passenger may seek to establish a right variant therefrom.

In this contention counsel are supported by the statements and decisions of courts and judges of high standing. Frederick v. Marquette, etc., R. R. Co., 37 Mich. 342; Hufford v. Grand Rapids, etc., R. W. Co., 53 Mich. 118; Van Dusen v. Grand Trunk R. W. Co., 97 Mich. 439; Mahoney v. Detroit Street R. W. Co., 93 Mich. 612 (18 L. R. A. 335); New York, etc., R. W. Co. v. Bennett, 1 U. S. C. C. of App. 544; Poulin v. Can. Pac. R. W. Co., 3 U. S. C. C. of App. 23; McKay v. Ohio River R. W. Co., 34 W. Va. 65 (9 L. R. A. 132); Hall v. Memphis, etc., R. Co., (U. S. C. C. Tenn.), 15 Fed. Rep. 57; Grand Trunk R. W. Co. v. Beaver, 22 Can. Sup. Ct. Rep. 498; Yorton v. Milwaukee, etc., R. W. Co., 54 Wis. 234; Chicago, etc., R. W. Co. v. Griffin, 68 Ill. 499; Baggett v. Baltimore, etc., R. W. Co., (D. C.) 22 Wash. Law Rep. 441; Bradshaw v. S. Boston St. R. W. Co., 135 Mass. ; Peabody v. O. R. & N. Co., 21 Ore. 121 (12 L. R. A. 23).

Other authorities, however, declare that in proper cases the conductor must heed the statement and explanation of the passenger as to his rights, and that one who has requested from the company, and paid for, a ticket to a certain place, and who boards the train, without fault, believing he has obtained that which he sought, is entitled to ride thereon, even though the agent has not given him the proper evidence of his right to ride. Georgia R. Co. v. Olds, 77 Ga. 673; Georgia R., etc., Co. v. Dougherty, 86 Ga. 744; Kansas City, etc., R. W. Co. v. Riley, 68 Miss. 768 (13 L. R. A. 38; Hufford v. Grand Rapids, etc., R. R. Co., 64 Mich. 631, wherein the court seems to reverse the trial court for instructing the jury in accordance with the doctrine laid down by the Supreme Court in the same case in 37 Mich. Texas, etc., R. W. Co. v. Dennis (Tex.) 23 S. W. Rep. 400; St. Louis, etc., R. W. Co. v. Mackie, 71 Tex. 491 (1 L. R. A. 607); Missouri, etc., R. W. Co. v. Martino, 2 Tex. Civ. App. 634; Burnham v. Grand Trunk, etc., R. W. Co., 63 Me. 298; Ellsworth v. Chicago, etc., R. W. Co. (Ia.), 63 N. W. Rep. 584 (29 L. R. A. 173); Yorton v. Milwaukee, etc., R. W. Co., 62 Wis. 367, which it is difficult to reconcile with the same case in 54 Wis. Phila., etc., R. W. Co. v. Rice, 64 Md. 63; Appleby v. St. Paul City R. W. Co. (Minn.) 55 N. W. Rep. 1117; Murdock v. Boston, etc., R. R. Co., 137 Mass. 293; New York, etc., R. W. Co. v. Winters, Admr., 143 U. S. 60.

These authorities do not all directly sustain the propositions to which they are cited, and in some, especially of those first set forth, the statements relied on are pure dicta, yet they may be thus lined up as favoring more or less directly the one or the other of two divergent rules. We deem it a hopeless task to undertake to reconcile all of thepi, and a needless one to take up each case and examine and distinguish it from its fellows where distinguishable.

Thus far we have considered decisions outside of Indiana. In our own State, however, the current of adjudications has been, from an early day, against the position assumed by appellant. Pittsburgh, etc., R. W. Co. v. Hennigh, 39 Ind. 509; Toledo, etc., R. W. Co. v. McDonough, 53 Ind. 289; Lake Erie, etc., R. W. Co. v. Fix, 88 Ind. 381; Pennsylvania Co. v. Bray, 125 Ind. 229; Chicago, etc., R. R. Co. v. Graham, 3 Ind. App. 28; Cleveland, etc., R. W. Co. v. Beckett, 11 Ind. App. 547.

These cases establish that where a passenger surrenders his ticket to the conductor and fails to receive any check in return, the company is liable for his ejection by a subsequent conductor in charge to whom he refuses to pay fare or present any ticket or check entitling him to ride; so also where the passenger by the direction of the conductor transfers from one train to another upon the assurance that he can ride on the first conductor’s train-check which was in fact good only for his own train; also where the holder of a return coupon ticket, receives back from the conductor the wrong coupon which, without discovering the mistake, he presents, upon the return trip.

In all these instances it was held that the conductor must heed the explanation of the passenger who was without the proper evidence of his right to ride through the mistake of the company’s agent and not by reason of his own fault.

In the case last referred to (the Beckett case), it is adjudged that one boarding a train without a ticket by reason of the company’s negligent failure to afford him an opportunity to buy one, cannot be required to pay an excess over the ticket fare, but is entitled to be carried at the regular lowest ticket rate, and the conductor must listen to his explanation of the circumstances, or the company must respond if he eject the passenger.

It was there said: “The first wrong was by appellant in failing to furnish appellee a ticket upon his reasonable demand therefor, and it must answer for all the consequences naturally following from that wrong. The company cannot be permitted to justify its own wrongful conduct by the fact that its servants were acting according to its directions or rules.

“Although the conductor may be acting strictly according to the rules of the company, and doing that and only that which, under its rules, he is authorized to do, it by no means follows that his conduct is rightful toward the passenger. Between himself and the company its rules will justify the conductor, but not so as between himself as the company’s representative, and the passenger.”

In Chicago, etc., R. R. Co. v. Conley, 6 Ind. App. 9, 16, it was said by this court: “It is true that where the passenger has no ticket, or has a ticket so imperfect that it furnishes no sufficient evidence of being genuine, and the conductor has nothing to determine the passenger’s rights from except his explanations, he is not bound to take the same as true unless his failure to-have a ticket, or a perfect ticket, was due to the company’s fault.”

Again in Chicago, etc., R. R. Co. v. Ault, 10 Ind. App. 661, the court said through Reinhard, J.: “If the appellee really purchased and paid for a first-class passenger ticket, with a return coupon attached, at the time he testified he purchased it, and presented the same to the conductor, it would strongly tend to prove that his expulsion from the train was wrongful, no matter what the form or wording of the ticket may have been.”

Carrying out the principles underlying these decisions, we do not see how it is possible to escape the conclusion that where a passenger calls for and pays for a ticket to one place, but is by the mistake of the company’s agent given a ticket different from that desired, with Which he, without fault, boards the train, believing he has the proper ticket, he is entitled to ride thereon the distance for which he has paid, upon making proper explanation, and if the conductor refuses to heed his statements, the company must respond. He has paid for his ride and presented in good faith the only evidence given him by the company of his right to make the journey. If the company has not furnished him the proper token to convey the fact to the mind of its conductor, the blame and the consequences thereof must both rest upon the company, which is in fault, rather than upon the passenger who is not.

In thus holding, we are in harmony with the views of our Supreme Court as expressed in Godfrey v. Ohio, etc., R. W. Co., 116 Ind. 30, wherein it was decided that where a passenger received from the station agent the wrong ticket, being the reverse of that for which he asked, he could not ride thereon four months after his discovery of the mistake, but Judge Mitchell sáys: “It is quite probable, if the plaintiff, without having had ample opportunity to correct the mistake after discovering it, had offered the ticket on the first trip, and had been refused passage, he would have been entitled to recover'for any injury, in case he had been ejected after having done all he reasonably could to rectify the mistake. The case would then have fallen within the principles declared in Lake Erie, etc., R. W. Co. v. Fix, 88 Ind. 381, and cases of that class.”

It is sometimes said that it is impracticable for the conductor to investigate, because while he is doing so the passenger may reach his destination and be gone, and the company cannot pursue him without disproportionate inconvenience and expense.

To this it may be answered that this is not much more impracticable than for a passenger to pay a second time who has no more money; nor is it, perhaps, much more inconvenient for the company to pursue the passenger for his fare than for the passenger to go to the expense and trouble of convincing the company that its official has made a mistake and compelling the return of the money improperly exacted. As a rule, the amount involved and the expense and trouble required would be widely disproportionate.

If it be said that the conductor cannot inform himself and learn the real truth, we may answer that the opportunity is fully as good as in any of the other cases where it is held that he must listen to and heed the passenger’s explanation.

As it seems to us, every objection that may be offered to our holding, whether it be inconvenience to the company or conductor, impracticability of ascertaining the truth, or violation of the company’s rules by the conductor, all are equally tenable and appropriate in these other cases.

It is true these other cases are distinguishable from the one in hand in that the facts are somewhat different, as, in truth they differ from one another; yet the cardinal principle governing them is the same, and that we take to be this: The company has a right to enforce against the passenger its reasonable rules and regulations: Provided his failure or inability to comply therewith is not brought about by its own fault.

The rule for which appellant contends is largely founded upon its supposed necessity as a requisite to the proper management of its trains; yet we have heard no general complaint of the impossibility of running trains in those States where the opposite rule has been adopted.

We may say, also, that in most of those courts which adhere to the rule asserted by appellants, those cases in our own State upon which we rely would have been decided differently from the determination of our courts.

We have referred to several Federal Court decisions sustaining appellant’s views, some of which state quite strongly the rule for which its counsel contend. To show the opinion of the highest Federal Court upon some of the propositions therein advanced, we refer especially to the case of New York, etc., R. W. Co. v. Winters, Admr., supra. In this case the passenger purchased a ticket upon which the agent told him he could stop over by speaking to the conductor. This he did. The conductor punched his ticket and returned it with the statement that this would be sufficient and he could use the ticket on another train after stopping over. This he undertook to do, and was ejected because he had no proper ticket and would not pay fare.

The following instruction was declared to correctly state the law: “ ‘That if the plaintiff’s testimony was true in regard to what took place between himself and the ticket agent in Boston, and afterwards with the first conductor on defendant’s train, and if the plaintiff, when he bought the ticket in Boston, informed the ticket agent of his wish to stop off at the Olean station, and was then told by the agent that he would have to speak to the conductor about that, and between Binghamton and Olean the plaintiff informed the conductor that he wished to stop over at Olean, and the conductor, instead of giving the plaintiff a stop-over ticket, punched, the plaintiff’s ticket and told him that was sufficient to give him the right to stop over at Olean, and afterwards to use the punched ticket between Olean and Salamanca, then, whatever the rules and regulations of the company were, the plaintiff was rightfully a passenger on the train at the time of his expulsion, and the conductor had no right to put him off for not paying his fare, and the company was liable for the act of the conductor. ’ ”

The court says further, referring to its holding that the action of the last conductor was unwarranted:

“The reason of such rule is to be found in the principle that where a party does all that he is required to do, under the terms of a contract into which he has entered, and is only prevented from reaping the benefit of such contract by the fault or wrongful act of the other party to it, the law gives him a remedy against the other party for such breach of contract.” A recovery of $10,000 was therein affirmed.

Our conclusion is also in accord with that set forth in the text of the latest (1894) edition of Wood on Railroads, Vol. 3, section 349: “ Where the passenger asks and pays for a certain ticket, and the station agent by mistake gives him a different one, which does not entitle him to the passage desired,' the conductor has no right to expel him, and the company is liable in damages if he is expelled. The passenger has a right to rely on the agent to give him the right ticket. There are authorities which hold the other way, but it seems that their views are indefensible.”

In Hutchinson on Carriers, section 580, the passenger’s right to indemnity for all the resultant injury in cases like this is recognized and apparently approved, but is placed upon a somewhat different basis.

Filed October 16, 1895; petition for rebearing overruled January 10, 1896.

The doctrine which we assert meets the approval of the editor of the Am. and Eng. Ency. of Law, Vol. 25, p. 1015.

Judgment affirmed.