Brown v. Missouri, Kansas & Texas Ry.

• Decision Date: 30 April 1877
• Parties: JOHN D. BROWN, et al., Defendants in Error, v. MISSOURI, KANSAS & TEXAS RAILWAY, Plaintiff in Error.
• Court: Missouri Supreme Court

64 Mo. 536

JOHN D. BROWN, et al., Defendants in Error,

v.MISSOURI, KANSAS & TEXAS RAILWAY, Plaintiff in Error.

Supreme Court of Missouri.

April Term, 1877.

Error to Henry County Circuit Court.

Jno. Montgomery, Jr., for Plaintiff in Error, cited: Blower vs. G. W. R. R. Co. [1872], L. R. 7, C. P. 655; Kendall vs. L. & G. W. R. R. Co., Law Tim., 5th June, 1872; Louisville, Cin. & Lex. R. R. vs. Hedger, 13 Am. Law Reg., p. 145, March, 1872; Sto. Agen. §§ 56, 75, 228; Sanford vs. Handy, 23 Wend. 268, and cases cited; Towle vs. Leavitt, 23 N. H. (3 Frost), 360; Sherman vs. C. & N. W. R. R., 40 Iowa, 46; Bragg vs. Bramberger, 23 Ind. 200; Gillett vs. Missouri Valley R. R., 55 Mo. 322; Kennedy vs. North Mo. R. R. Co., 36 Mo. 365; Buckley vs. Knapp, 48 Mo. 152; Tarhill vs. C. P. R. R. Co., 34 Cal. 623; Illinois Cent. R. R. Co. vs. Johnson, 67 Ill. 36; Chicago & Alton R. R. Co. vs. Flagg, 43 Ill. 364; Illinois C. R. R. Co. vs. Johnson, 67 Ill. 315; T. H., A. & St. L. R. R. Co. vs. Vanatta, 21 Ill. 188; Ackley vs. Staehlin, 56 Mo. 558; Dedo vs. White, adm'r, 50 Mo. 241.

Boone & Johnson, for Defendants in Error, cited: New York Central Railroad Co. vs. Lockwood, 17 Wall. 357 and authorities cited.

NAPTON, Judge, delivered the opinion of the court.

This is an action brought by Brown and wife to recover damages from the railroad company, the defendant, for ejection of his wife from a passenger car, on a trip from Hannibal to Montrose, in Henry county, where the plaintiffs lived.

The facts in the case appear to be undisputed and may be substantially stated as follows: The plaintiff, Brown, had a contract with the defendant to transport four car loads of stock from Montrose to Hannibal. The contract contained a provision authorizing the owner of the stock and one or two employees, according to circumstances, to ride upon the train in which the stock was transported, and the agents of the company were authorized to issue passes, both to the owner and the employees accompanying the stock to their destination and for their return. By the special contract made in this case, it was provided, that no person except the owner or parties in charge should be entitled to a return pass, the intent being declared to be to enable “ said owner or his men in charge, as expressed in the contract, and no other person, to return on such pass.”

Upon the contract the following rules were indorsed: “For the purpose of taking care of the stock, the owner or men in charge will be passed on the train with it, and all persons thus passed are at their own risk of any personal injury from any cause whatever, and must sign release to that effect on contract.” “The agent, at the station where the stock is loaded, will enter on the back of the contract the name or names of persons who are thus to be passed free with the stock, which is authority for the conducter to pass them.” “Agents will refuse to enter any name on contract but those of owner or employees in charge, and who accompany the stock, without regard to passes required by number of cars.”

The plaintiff applied to the agent of the defendant at Montrose for tickets for himself and “L. Brown.” After some conversation between the parties, the agent ascertained that L. Brown was the wife of the owner, and expressed his doubts as to whether he had any authority to issue such a pass, and also some doubt as to whether the conductor would allow Mrs. Brown to travel on such a pass, if issued.

However, upon Mr. Brown asserting that his wife was the owner of the stock on two of the cars, the passes were issued, the agent stating at the time that he had never issued a stock pass to a lady, and he doubted if the conductor would recognize it. It subsequently appeared upon the examination of Mr. Brown upon the trial, that he was the sole owner of all the stock on the cars, and that his wife, with a young daughter, was making a visit to some relation in Illinois, near Hannibal. At Hannibal, Mr. Brown, on his return from Chicago, the ultimate destination of his stock, applied to the agent at Hannibal for passes, one for himself and one for “L. Brown,” presenting at the same time a stock contract to the agent. The agent asked him where his other man, L. Brown, was. To which Mr. Brown replied, “the other man is my wife.” The pass was finally given and was as follows:

“Missouri, Kansas & Texas Railway return stock pass good for one trip and one person only. Conductor will take up this pass

Hannibal, Feb'y 11th, 1874.

Pass L. Brown from Hannibal to Montrose on account of stock contract surrendered, dated Jan'y 17th, 1874, for four cars; must be countersigned by agent at Hannibal.

F. W. BOWEN, Gen. Sup't.

Countersigned, L. S. ALLEN, 29.

Not transferable and void if presented after one month from date of contract, as herein expressed.”

On the back of the above ticket was the following agreement:

1874.

“In consideration of receiving this free 27 return pass, I accept it subject to the conditions expressed thereon, and hereby expressly agree that said company issuing it shall not be liable for any injury to my person or property.

“A.”

L. BROWN.”

The conductor on the train from Hannibal to Paris refused to recognize the validity of the pass, and requested Mrs. Brown to leave the cars unless her fare was paid. Mr. Brown advised her to remain in the car until she was put off. After considerable discussion between the plaintiff and the conductor, Mrs. Brown was put off the cars in the vicinity of Paris about 10 o'clock in the morning, but immediately re-entered, her husband having paid her fare. No incivility was offered her, or any want of courtesy displayed by the conductor, either in handing her off the cars or placing her back, as she states herself. It was conceded that Mrs. Brown really exercised no care over the stock, but was making a trip to some relatives in Illinois. Upon the trial the court instructed the jury as follows for the plaintiffs:

1. “It is admitted by the pleadings that plaintiff, John D. Brown, did make a written contract with defendant for the transportation, for a valuable consideration, of four car loads of stock from Montrose to Hannibal; that by virtue of said contract said John D. Brown was entitled to two return tickets or passes from Hannibal to Montrose...