Boling v. St. Louis & San Francisco Railroad Company

• Decision Date: 06 June 1905
• Citation: 88 S.W. 35,189 Mo. 219
• Parties: BOLING v. St. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

88 S.W. 35

189 Mo. 219

BOLING v. St. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant

Supreme Court of Missouri, Second Division

June 6, 1905

Transferred from St. Louis Court of Appeals.

Reversed and remanded.

L. F Parker and John T. Woodruff for appellant.

(1) This action sounds in tort and not in contract. It is predicated on the general common law duty that the defendant as a common carrier owes to one rightfully on its train as a passenger. Wood v. Railroad, 32 Wis. 298; Bank v. Brown, 3 Wend. 158; Stone v. Railroad, 47 Iowa 88; Wabash v. Railroad, 42 Wis. 23. (2) The general rule is that an ordinary ticket does not constitute the contract of carriage, but it is a mere token, or the evidence of a contract which the law creates and which lies back of and behind the ticket. But when, as here, the ticket on its face purports to be a contract of carriage, and is based upon a valuable consideration -- that is, sold at a reduced rate -- then it constitutes the contract of carriage between the parties. Cloud v. Railroad, 14 Mo.App 136; Mosher v. Railroad, 127 U.S. 390; Boylen v. Railroad, 132 U.S. 146; Watson v. Railroad (Tenn.), 56 S.W. 1024; Edwards v. Railroad (Mich.), 45 N.W. 827; Bowers v. Railroad (Pa.), 27 A. 893; Rogers v. Railroad (N.J.), 34 A. 11; Dangerfield v. Railroad (Kan.), 61 P. 405; Bethea v. Railroad, 26 S.C. 356; Moses v. Railroad, 73 Ga. 356; Hutchinson on Carriers, sec. 580B. (3) The limit of the ticket offered by plaintiff having expired upon its face, it was the right and duty of the conductor to compel her to pay her fare or retire from the train. The rightfulness or wrongfulness of his action is to be determined solely from the face of the ticket. Frederick v. Railroad, 37 Mich. 1342; Bradshaw v. Railroad, 135 Mass. 407; Yorton v. Railroad (Wis.), 11 N.W. 482; Townsend v. Railroad, 56 N.Y. 297; Woods v. Railroad, 48 Mo.App. 125; Hufford v. Railroad (Mich.), 18 N.W. 580; Shelton v. Railroad, 29 Ohio St. 214; Crawford v. Railroad, 26 Ohio St. 580; Perry v. Railroad, 58 Mo.App. 75; Mosher v. Railroad, 127 U.S. 390; Magee v. Reynolds, 23 So. 68; Pauilin v. Railroad, 52 F. 197; Hall v. Railroad, 15 F. 57; Peabody v. Railroad, 26 P. 1053; Wakefield v. Railroad, 117 Mass. 544. (4) The court clearly erred in admitting evidence, over defendant's objection, that the conductors on the other railroads, the gatemen at the Union Depot in St. Louis, Pullman conductors and porters examined and accepted the ticket. This has been many times decided. Cloud v. Railroad, 14 Mo.App. 136; Bowers v. Railroad, 27 A. 893; Dangerfield v. Railroad, 61 P. 405; Boylen v. Railroad, 132 U.S. 146; Hill v. Railroad, 63 N.Y. 101; Stone v. Railroad, 47 Iowa 82; Wakefield v. Railroad, 117 Mass. 544; Diederich v. Railroad, 71 Pa. St. 432. (5) If this be treated as an action on a contract of carriage, then the court's instruction as to the measure of damages is clearly wrong, as the humiliation, shame, etc., suffered by plaintiff cannot be considered and has no place in such an action. Stone v. Railroad, 47 Iowa 82; Walsh v. Railroad, 42 Wis. 23.

Vaughan & Coltrane for respondent.

(1) Even if the ticket in this case had not been signed by Mrs. Boling and validated by the signature and stamp of the agent at Chickamauga, on the day of the return passage, it was still good and entitled her to passage over the defendant's railroad. For the reason that such agent was the representative of the defendant company at that point and the only one it had there, he was its general agent for the purpose of validating tickets at that point, and as such he had power to waive that provision of the ticket requiring validation on the day when return passage began. Mechem on Agency, sec. 6. (2) That the face of the ticket alone is to determine the passenger's rights, and if it alone does not authorize his transportation, the conductor is justified in expulsion, is not the law of this State and is not the law as fixed by the weight of authority in this country. McGinnis v. Railroad, 21 Mo.App. 399; Cherry v. Railroad, 52 Mo.App. 499; Railroad v. Deloney, 65 Ark. 177; Forsee v. Railroad, 63 Miss. 66; Railroad v. Reynolds, 55 Ohio St. 370; Hufford v. Railroad, 64 Mich. 634; Murdock v. Railroad, 137 Mass. 239; Railroad v. Gaines, 99 Ky. 411; Head v. Railroad, 79 Ga. 358; Railroad v. Mackie, 71 Tex. 491; Railroad v. Hennigh, 39 Ind. 509; Railroad v. McDonough, 53 Ind. 289; Railroad v. Fix, 88 Ind. 381; Railroad v. Riley, 68 Miss. 765; Railroad v. Bembry, 16 A. 67; Railroad v. Pauson, 70 F. 585; Railroad v. Winter, 143 U.S. 60; Muckle v. Railroad, 79 Hun 33; Sloane v. Railroad, 111 Cal. 668; Railroad v. Dalby, 19 Ill. 352; Railroad v. Rogers, 28 Ind. 1; Railroad v. Rice, 64 Md. 63. (3) A railroad company will not be heard to urge the action of its agent as an excuse for disregarding its own ticket and ejecting a passenger. Head v. Railroad, 79 Ga. 358; Railroad v. Bray, 125 Ind. 229; Railroad v. Dougherty, 86 Ga. 744. Passengers have the right to rely upon the statements of agents made with reference to matters which lie within the line of their duty. Murdock v. Railroad, 137 Mass. 293; Railroad v. Fix, 88 Ind. 385; Palmer v. Railroad, 3 S.C. 580; Barnham v. Railroad, 63 Me. 299; Arnold v. Railroad, 115 Pa. 135; Railroad v. Winter, 143 U.S. 60; Railroad v. Dougherty, 86 Ga. 744. (4) A provision in a ticket requiring identification at destination and new execution may be waived. Taylor v. Railroad, 99 N.C. 185. (5) The ticket if good upon its face may be a justification of the conductor as between him and his company, or as between him and a passenger, but not as between the company and its passenger. Railroad v. Reynolds, 55 Ohio St. 370; Railroad v. Dougherty, 86 Ga. 744; Railroad v. Cates, 41 N.E. 712. (6) Gillis, the conductor, did not, in fact, refuse the right of carriage to Mrs. Boling, on the ground that the ticket had not been rightly stamped or signed at Chickamauga, but his real ground was because he believed it to be a scalper's ticket.

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 expense, 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 Frisco 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-class 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 as 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...