Zabron v. Cunard S.S. Co.

Decision Date12 May 1911
PartiesROSA ZABRON v. THE CUNARD STEAMSHIP COMPANY, Limited, Appellant
CourtIowa Supreme Court

Appeal from Cedar Rapids Superior Court.--HON. C. B. ROBBINS, Judge.

IN June, 1908, the plaintiff lived in Russia, and her brother Isaac Zabron, lived in Cedar Rapids, Iowa. The brother desiring to have the plaintiff come to Cedar Rapids to live went to the defendant's agent in Cedar Rapids to provide for her passage to Cedar Rapids. The agent told him that the price of a prepaid third-class ticket from the port of Libau Russia, to Cedar Rapids was $ 56.05. The brother had only $ 50 in cash at the time. The agent took this amount, however, and issued to Zabron a receipt, showing payment in full for the ticket, under an agreement, as Zabron testified, that the agent would at once forward a ticket to the defendant's agents at Libau, and that the remainder of the price could be paid later. The agent testified that at the same time he gave Zabron an embarkation slip, and directed that he send it to the plaintiff at once. Zabron mailed the slip given to him to the plaintiff on the same day, which was June 8, 1908, he wrote her that he had bought a ticket for her passage from Libau to Cedar Rapids, and for her to go to Libau, where she would get the ticket. Her brother's letter and the embarkation slip reached the plaintiff at her home in Kreslovka, Russia, distant from Libau a journey of a day and a half by rail, in due time. The embarkation slip was simply a notice of intention to embark, which provided that it must be sent by passengers to the company's office or agent at port of departure at least fourteen days in advance, or berths would not be reserved. The plaintiff did not notify the defendant in advance of her intention to embark; but, after securing her passports, she went to Libau, arriving there on the 31st of October, 1908. She immediately presented the slip, which showed that her passage had been prepaid, but was told by the defendant's agent that no ticket for her passage had been received, and that she would have to wait for it. They took the slip and her passports, and she waited there until December 16, before the ticket was furnished her and she was allowed to embark. When she arrived at Libau, the plaintiff had only about $ 3 in money, and was a stranger, and she advised the defendants's agents of these facts. The Cedar Rapids agent sent the ticket to the defendant's Chicago office November 11, 1908. The plaintiff was compelled to work for her lodging while detained in Libau, and claims that her health was greatly impaired by the severity of such work, and by her lack of food to properly sustain herself. She also alleged that she suffered great mental pain and anguish. The case was tried to a jury, and she was given $ 1,000 damages. The defendant appeals. Reversed.

Reversed.

Dawley & Wheeler and J. E. MacLeish, for appellant.

Barnes & Chamberlain, for appellee.

OPINION

SHERWIN, C. J.

It is not denied that Doctor was an agent in Cedar Rapids, with authority to sell tickets for passage from Libau to Cedar Rapids; but the defendant claims that the service of notice on Doctor gave the court no jurisdiction of this case. Section 3500 of the Code provides: "When a corporation, company or individual has an office or agency in any county for the transaction of business, any action growing out of or connected with the business of that office or agency may be brought in the county where such office or agency is located." It was clearly a part of the defendant's business as a carrier to sell tickets for passage over its own and connecting lines. It establishes agencies in the several cities of the country for the purpose of securing business for its line of steamships, and the sale of its tickets is, in our judgment, as much a part of its business as the actual carriage of passengers thus obtained. Its appointment of an agent in Cedar Rapids established an agency there for the transaction of business, within the meaning of the statute. Milligan v. Davis, 49 Iowa 126.

Furthermore, the defendant accepted the benefits of the sale made by Doctor, and thereby ratified the transaction, and should be charged with its burdens. Milligan v. Davis, supra. Section 3541 of the Code also provides that an appearance, special or otherwise, avoids the necessity of further notice. See, also, Moffitt v. Chronicle Co., 107 Iowa 407, 78 N.W. 45. The court clearly had jurisdiction of the subject matter, and, by acquiring jurisdiction of the person of the defendant in an authorized manner, its jurisdiction was complete.

As we have already said, the plaintiff did not notify the defendant's agents in Libau of her intention to embark until she arrived in Libau, and because of this failure on her part the defendant says that she had no cause of action. A sufficient answer to this contention is that, if it be conceded that the slip sent to the plaintiff contained such a requirement, which is in dispute, it appears that such notice was required for the purpose only of reserving a berth for the passenger, and no complaint on that score is made. Nor was the question of a berth involved in defendant's refusal to sooner accept the plaintiff as a passenger. Moreover, there was nothing on the slip, even if it was as the defendant contends, to call the plaintiff's attention to the fact that the fourteen days' notice was for any other purpose than to secure a berth.

The appellant further says that the action was based solely on a breach of contract, and that there was error in submitting any question of the defendant's negligence. The plaintiff's petition clearly alleged negligence on the part of the defendant in failing to forward the ticket until five months after its purchase. So far, then, as the pleading is concerned, there can be no question but what the cause of action was based on a tort. That a violation of a contract may create a cause of action for a tort is well settled generally. Owens Brothers v. Railway Co., 139 Iowa 538, and cases cited therein; Mentzer v. Telegraph Co., 93 Iowa 752, 62 N.W. 1.

The only serious question is whether the instant case falls within the rule thus established. We think it does. The defendant was a common carrier, and, as a part of its business as such, it undertook, not only to sell tickets in this country for carriage from European points to the place of sale, but to forward such tickets to its agents at the port of embarkation. That was a part of its business as a carrier of passengers. One of the conditions of the sale was that the ticket should be so forwarded, and we are unable to find any sound reason for saying that the transaction should be so divided as to exempt the defendant from a charge of negligence in failing to send forward a ticket that has already been paid for. We think the rule of the cases cited is applicable here, and that an action for tort may be sustained. It was the defendant's duty to accept plaintiff as a passenger upon her compliance with its rules and a failure to do so would create liability. When she bought...

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