Callaway v. Mellett

• Decision Date: 26 May 1896
• Docket Number: 1,485
• Parties: CALLAWAY, RECEIVER, v. MELLETT
• Court: Indiana Appellate Court

44 N.E. 198

15 Ind.App. 366

CALLAWAY, RECEIVER, v. MELLETT

No. 1,485

Court of Appeals of Indiana

May 26, 1896

From the Grant Circuit Court.

Judgment affirmed.

S. O Boyless and C. G. Guenther, for appellant.

J. C Blacklidge, C. C. Shirley and B. C. Moon, for appellee.

ROSS J. LOTZ, J., does not participate. DAVIS, C. J., concurs. GAVIN, J., concurs in the law as stated by Davis, C. J.

OPINION

ROSS, J.

The appellee sued and recovered judgment in the court below, in the sum of $ 500.00, against Samuel R. Callaway, receiver of the Toledo, St. Louis & Kansas City Railroad Company. Since perfecting this appeal, said Callaway has resigned as such receiver, and R. B. F. Peirce has been appointed in his stead, and substituted as the party appellant herein.

Two specifications of error have been assigned in this court, the first being that "The court erred in overruling the demurrer to the complaint," and the second, that "The court erred in overruling the appellant's motion for a new trial."

No objection to the sufficiency of the facts alleged in the complaint to constitute a cause of action, has been pointed out, hence the first specification of error is deemed waived. Counsel do urge, however, that the facts alleged, and upon which this action is predicated, sound in both contract and tort, and are so blended that it is impossible to determine upon which theory the complaint proceeds.

It is well settled, that a complaint must proceed upon a single definite theory. Pennsylvania Co. v. Clark, 2 Ind.App. 146, 27 N.E. 586; Hasselman v. Development Co., 2 Ind.App. 180; Carter v. Lacy, 3 Ind.App. 54; Thompson v. State, ex rel., 3 Ind.App. 371; W. U. Tel. Co. v. Reed, 96 Ind. 195; Leeds v. City of Richmond, 102 Ind. 372; Moorman v. Wood, 117 Ind. 144; Jackson v. Landers, 134 Ind. 529, and that the plaintiff must recover "secundum allegata et probata," or not at all. Louisville, etc., R. W. Co. v. Renicker, 8 Ind.App. 404; Boardman v. Griffin, 52 Ind. 101; Terry v. Shively, 64 Ind. 106; Thomas v. Dale, 86 Ind. 435; Cleveland, etc., R. W. Co. v. Wynant, 100 Ind. 160; Bremmerman v. Jennings, 101 Ind. 253; Hasselman v. Carroll, 102 Ind. 153; Brown v. Will, 103 Ind. 71; Chicago, etc., R. W. Co. v. Burger, 124 Ind. 275.

" The object of pleading is to present, in a distinct and definite form, questions of fact for trial, and this object cannot be accomplished unless parties are required to state positively the facts upon which they rely, and in accordance with a distinct, definite and controlling theory. If ambiguous pleadings are tolerated, no issue can be framed which will present, in an intelligible form, questions for trial, and perplexity and confusion will necessarily result. It is no great hardship to require obedience to rules of pleading and logic, and not to do so will result in the evil of leaving disputants without a direct issue, and the court without the means of determining the competency or relevancy of evidence. In order to bring the parties to an issue, it is necessary to require them to make their pleadings conform to some definite theory, and to be sufficient upon that theory." Says Elliott, C. J., in the case of Western Union Tel. Co. v. Reed, supra. And, again, the same court, in the case of Chicago, etc., R. R. Co. v. Bills, 104 Ind. 13, says: "It is essential to the formation of issues, and to the intelligent and just trial of causes, that a complaint should proceed upon a distinct and definite theory. It would violate all rules of pleading to permit a complaint to be construed as best suited the exigencies of the case; to allow such a course of procedure would produce uncertainty and confusion, and materially trench upon the right of the defendant to be informed of the issue he is required to meet. The rule is, that the complaint must proceed on a distinct and definite theory, and upon that theory the case must stand or fall."

A complaint should not be so drafted that it is susceptible of more than one construction. It cannot be made elastic, so as to bend or take form with the varying views of counsel. Mescall v. Tully, 91 Ind. 96; Toledo, etc., R. R. Co. v. Levy, 127 Ind. 168.

In order that there may be no charging front, as it were, as the cause proceeds, the facts alleged should be so clearly stated and free from uncertainty or ambiguity, that the theory upon which the pleading proceeds cannot be mistaken. But when the facts pleaded are such that they are susceptible of more than one construction, so that they may be construed as proceeding upon different theories in the statement of a cause of action, the construction placed upon them by the trial court will be the theory upon which they will be considered by this court on appeal. Cleveland, etc., R. R. Co. v. DeBolt, 10 Ind.App. 174.

The theory upon which the complaint proceeds is, as we view it, to recover damages from the appellant, for a tortuous breach of its contract of carriage, resulting in the appellee's wrongful expulsion from its train.

There is little, if any, conflict in the adjudicated cases that, as between the passenger and the conductor, the face of the ticket is conclusive evidence of the passenger's right to ride. Bradshaw v. Railroad Co., 135 Mass. 407; Mackay v. Railway Co., 34 W.Va. 65, 11 S.E. 737; Townsend v. Railroad Co., 56 N.Y. 295; Frederick v. Railway Co., 37 Mich. 342; Shelton v. Railway Co., 29 Ohio St. 214; Dietrich v. Railroad Co., 71 Pa. 432; Petrie v. Railroad Co., 42 N.J.L. 449; Railroad Co. v. Griffin, 68 Ill. 499; Hall v. Railroad, Co., 15 F. 57; Weaver v. Railroad Co., 3 Thomp. & C. 270; Pennington v. Railroad Co., 62 Md. 95; Johnson v. Railroad Co., 63 Md. 106; Peabody v. Navigation Co., 21 Ore. 121, 26 P. 1053; Vandusan v. Railway Co., (Mich.) 56 N.W. 848; Railroad Co. v. Bennett, 1 C. C. A. 544, 50 F. 496; Jerome v. Smith, 48 Vt. 230; Downs v. Railroad Co., 36 Conn. 287; Mosher v. Railroad Co., 127 U.S. 390, 8 S.Ct. 1324; Boylan v. Railroad Co., 132 U.S. 146, 10 S.Ct. 50.

Under the earlier adjudications, it was held that a railroad ticket was merely a receipt, or token, evidencing the payment of passage-money, and showing that the purchaser had paid the toll entitling him to ride from one point to another. Hibbard v. Railroad Co., 15 N.Y. 455; Dietrich v. Railroad Co., 71 Pa. 432; Rawson v. Railroad Co., 48 N.Y. 212; Railroad Co. v. Bartram, 11 Ohio St. 457. The later holdings, however, are that the ticket is the contract between the purchaser and the railroad company. Sleeper v. Railroad Co., 100 Pa. 259; New York, etc., R. W. Co. v. Bennett, 50 F. 496; Mosher v. St. Louis, etc., R. W. Co., 127 U.S. 390, 8 S.Ct. 1324; Boylan v. Hot Springs R. R. Co., 132 U.S. 146, 10 S.Ct. 50.

And our own Supreme Court, in the case of Terre Haute, etc., R. R. Co. v. Fitzgerald, 47 Ind. 79, held that the terms expressed on the ticket constituted a contract between the company and the purchaser, and that he was bound thereby.

If a ticket is to be considered merely as a receipt, or voucher, for money paid in consummation of the passenger's part of a contract entered into, whereby the carrier agreed to transport him from one place to another, the right to demand passage upon its presentation must be limited to the person who paid the money and received the ticket, for it is with such person only that the carrier contracted. And the mere delivery of the ticket to another would not transfer the rights of the transferrer to the transferee, and the carrier would have no contract to fulfill with the latter, because he made no contract with him. The rights of one party under a contract cannot be thus transferred. True, the law imposes upon the railroad company the duty of accepting and carrying all proper persons who apply for passage from one station to any other station on its line, but it also permits the company to regulate, in its own way, the manner of receiving and carrying such applicant. The ticket is evidence of the terms and regulations upon which the company agrees to carry; and, when the passenger has accepted the ticket, he is bound by its terms as much as if he had, by formal agreement, entered into such contract with the company.

We must, therefore, give to a ticket, a more extensive signification than a mere receipt or voucher. A receipt or voucher, strictly speaking, has none of the elements of a contract, for it does not require of the issuer the performance of any obligation or duty, it is simply evidence of payment or delivery. Krutz v. Craig, Admx., 53 Ind. 561. And this court, in Landers v. Fisher, 2 Ind.App. 64 (66), says: "A receipt proper is but the written acknowledgment of the person signing it, that the money or property mentioned in it was delivered to him."

A mere receipt may be explained, controlled, qualified or even contradicted by parol evidence. Pauley v. Weisart, 59 Ind. 241; Beedle v. State, ex rel., 62 Ind. 26; Lash v. Rendell, 72 Ind. 475; Landers v. Fisher, supra. But when it is so drafted as to impose an affirmative obligation upon either party, it amounts to a contract, and must be construed, and the rights and obligations of the parties thereunder determined, by the law of contracts in general.

The custom of railroads, in the transportation of passengers, to use tickets which entitle the holder, except in special cases, to be carried upon the terms designated thereon, has become so much a part of the business itself, as to be recognized as a part of the law of the land. The purchaser of a ticket does not, ordinarily, enter into any special negotiations by which the carrier undertakes to carry him for the custom established by the carrier and those doing business with him, has fixed the terms upon which he may be carried, and if he accepts a ticket limiting the time ...