Alabama & Vicksburg Railway Co. v. WM. Drummond

• Decision Date: 27 April 1896
• Parties: ALABAMA & VICKSBURG RAILWAY CO. v. WM. DRUMMOND
• Court: Mississippi Supreme Court

20 So. 7

73 Miss. 813

ALABAMA & VICKSBURG RAILWAY CO. v. WM. DRUMMOND

Supreme Court of Mississippi

April 27, 1896

March 1896

FROM the circuit court of Rankin county HON. A. G. MAYERS, Judge.

Appellee purchased through tickets for himself and wife from Jackson Miss. to Corsicana, Texas, from the agent of the Alabama &amp Vicksburg Railway Co., at Jackson, and, boarding the company's train, entered the first-class coach. When the conductor came to get their fare, he discovered that they had second-class tickets and he then compelled them to go into the second-class coach. Appellee sued the railway company for damages for compelling himself and wife to take second-class passage. The declaration alleged that appellee applied for first-class tickets and offered to pay for the same, and the agent gave him the tickets in a sealed envelope and he paid the agent the amount demanded for first-class tickets; that defendant, through its conductor, claimed that the tickets so purchased were second-class tickets, and he unlawfully wilfully, and offensively and forcibly ejected plaintiff and his wife from said first-class coach and compelled them to ride in the second-class coach. Defendant pleaded the general issue, and gave notice that evidence would be introduced to show that plaintiff actually purchased and paid for second-class tickets, and that he never made or offered to make a contract for first-class passage.

On the trial plaintiff testified that he called for first-class tickets and asked the agent the price and paid whet was demanded. On cross-examination plaintiff said he paid $ 13.20 for the tickets; that he called for first-class tickets asked the price, and paid it. The defendant's ticket agent at Jackson testified for defendant that he sold plaintiff second-class tickets from Jackson to Corsicana; that it was the custom to ask passengers whether they wanted first or second class tickets; that first-class tickets to Corsicana were worth $ 14.20 and second-class were worth $ 13.20, and that the tickets were put into an envelope, but not sealed. The conductor testified that if passengers complain of having to ride in second-class coaches, they are allowed to ride in the first-class coaches by paying the difference in the price. In rebuttal plaintiff showed that, when it was discovered that he had second-class tickets, the conductor did not explain that they could go into the first-class coach on paying the difference in the price of the tickets. For the plaintiff the jury were instructed that if they believed that plaintiff applied for first-class tickets and the agent told him the price was $ 13.20, and plaintiff paid the amount asked by the agent for first-class tickets, and the conductor ejected him and his wife from the first-class coach, they should find for plaintiff. The instructions given for the defendant were as follows:

"1. It was the duty of the plaintiff, if he desired first-class tickets to Texas, to inspect the ticket delivered to him, to ascertain in fact whether they were first-class of second-class, and if the jury believe from the evidence that plaintiff failed to do this before getting on the train, he cannot recover in this actin, and can only sue the defendant for a failure to make the contract he desired to make.

"2. If the jury believe that plaintiff really asked for first-class tickets, but the ticket agent by mistake sold him second-class tickets, and he paid for such tickets, he could only ride on second-class coach upon the tickets received and paid for, and could not demand a seat in the first-class coach after the mistake was discovered, unless he tendered to the conductor the difference in the price of the two tickets; and before he could recover for a breach of contract, it devolved upon him to show that upon discovering the mistake, he offered to pay the difference, and that the conductor refused to take it, and forced him to g in the second-class coach against his protest.

"3. If you believe that plaintiff applied for first-class tickets, and gt and paid for second-class tickets, and could have gotten in the first-class coach by paying the difference in price, and failed to do so, the measure of damage is the difference between the price of the two tickets."

Plaintiff recovered a verdict and judgment of $ 150. Defendant's motion for a new trial was overruled, and it appealed.

Reversed and remanded.

Nugent & McWillie, for the appellant.

If plaintiff bought a second-class ticket, he cannot complain that he had to conform to its exactions. As between the passenger and the conductor, the ticket is conclusive evidence of the right of the passenger to travel, and necessarily so, because a wrong decision in favor of the passenger would leave the carrier without remedy for the fare. Peabody v. Railroad Co., 26 Pac. (Or.), 1053; Frederick v. Railroad Co., 37 Mich. 342; Railroad Co. v. Griffin, 68 Ill. 499; Pa. Railroad Co. v. Connell, 112 Pa. 295; McKay v. Railroad Co. (11 S. E.), 34 W.Va., 65.

Appellee really paid for second-class tickets, which were delivered to him in an unsealed envelope. If it be conceded that the agent told appellee that the price of first-class tickets was $ 13.20 each, and that appellee did not misunderstand what the agent told him, the concession does not affect the result. The agent himself made a mistake. The case would stand thus Under the mistaken representation of appellant's agent, appellee purchased second-class tickets, thinking them to be first-class tickets, and was thereby induced to make a contract different from that intended. But this would give him no right of action against appellant, in view of the fact that the mistake could easily have been corrected on the train. The conductor testifies that he heard no complaint of the kind now suggested by appellee, and that, had such complaint been made, the appellee would have been allowed to remain in the first-class coach by paying tho difference in the price of the two tickets. This is the rule and regulation of the company. Nor does it make any difference in such case that the conductor fails to demand the additional fare. The passenger should tender it and demand to retain his seat when he learns the kind of ticket he holds. In view of these facts, the first charge for plaintiff was erroneous. It rests the case upon the proposition that, if the agent told plaintiff the price of first-class tickets was $ 13.20, and this amount was paid, the plaintiff was entitled to recover, whether this was the price or not. It leaves out the most important point of the case, and ignores the question of mistake. The passenger got...